No. 63778-9-I.The Court of Appeals of Washington, Division One.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05272-5, Michael J. Fox, J., entered July 6, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Leach, A.C.J., and Ellington, J.
GROSSE, J.
Evidence of a defendant’s refusal to take a breath test is admissible in a subsequent criminal trial. However, even if a prosecutor’s comment regarding a defendant’s refusal to take a breath test is improper, where the evidence of the defendant’s guilt is overwhelming, the comment is not prejudicial. Further, defense counsel did not object to the comment and a curative instruction could have cured any resulting prejudice. Thus, the comment is not grounds for reversal of the defendant’s conviction. We affirm.
FACTS
Jackson Muriuki appeals his conviction of felony driving under the influence (DUI).[1] The conviction arose out of an incident on June 17, 2008. Around 8:00 that evening, Muriuki went to a restaurant for dinner. He was joined by another man who was also alone in the restaurant.
While he was waiting for his meal to arrive, Muriuki drank a bottle of beer. He drank a second bottle of beer with his dinner.
When Muriuki was preparing to leave the restaurant around 9:45 or 10:00 p.m., the man with whom he had eaten dinner asked if Muriuki could drive him somewhere to buy drinking water. Muriuki agreed to drive the man to a nearby 7-Eleven. After taking the man to the 7-Eleven, Muriuki agreed to drive him to the Super 8 Motel, where the man was staying.
Muriuki thought that in order to get to the Super 8 Motel, he would have to make a U-turn on State Route 99, drive north, turn on South 188th Street, and reach the hotel via an arterial road. But, as he started to make the U-turn, his passenger told him not to make the U-turn, but rather to turn right onto South 192nd Street. Muriuki followed his passenger’s directions and made an abrupt right turn onto South 192nd Street, rather than make the U-turn. He ended up in the wrong lane of South 192nd Street and immediately saw a police officer flashing his lights.
Washington State Patrol Trooper George Englebright was the officer who stopped Muriuki. He activated his lights when he saw Muriuki travel the wrong way down South 192nd Street. Trooper Englebright estimated that Muriuki was not driving faster than 10 miles per hour at the time.
When he saw the trooper’s flashing lights, Muriuki pulled into a parking lot, which happened to be the parking lot of the Super 8 Motel. As he approached Muriuki’s car, Trooper Englebright smelled the odor of intoxicants coming from the car and saw that Muriuki had red and watery eyes. It was apparent to the trooper that Muriuki had been drinking. Trooper Englebright knew that the odor of intoxicants was coming from Muriuki and not the passenger because the trooper was standing at the driver’s side window when he smelled it. The trooper testified that it was “really obvious and apparent” to him that Muriuki had been drinking. On his written report, Trooper Englebright described the odor of intoxicants coming from Muriuki’s breath as “strong” and “obvious.” At trial, he testified that he was “100 percent sure that the incident that night was caused by the alcohol [Muriuki] had to drink.” Muriuki testified that when asked, he told Trooper Englebright that he had been drinking.
Trooper Englebright decided to get more information to determine whether Muriuki had been drinking. The officer asked Muriuki to get out of his car, but later asked him to get back in the car and move it into a parking space. Muriuki agreed to submit to a voluntary field sobriety test. As Muriuki got out of his car, Trooper Englebright noticed that he was moving slowing and using the vehicle to help keep his balance as he got out. Trooper Englebright noticed that Muriuki was “wobbly” once he was out of the car and that he leaned on the car to steady himself.
Trooper Englebright first administered the horizontal gaze nystagmus (HGN) test. He noticed that Muriuki’s eyes were jerking, which, in the trooper’s opinion, is an obvious sign that the test subject had been drinking. Muriuki was also swaying while Trooper Englebright administered the test, and the trooper could smell the odor of intoxicants on Muriuki’s breath. Trooper Englebright saw all six clues of intoxication in Muriuki’s eyes.
After the HGN test, Trooper Englebright performed the walk-and-turn test in the parking lot of the Super 8 Motel, using one of the painted lines on the lot. Trooper Englebright testified that from the very beginning of the test, Muriuki was off-balance, “could not stay in the instruction position,” and attempted to start the test twice before instructed to do so. Muriuki failed the walk-and-turn test, missing heel to toe on every step and stepping off the line a couple of times as he lost his balance. Trooper Englebright testified that he saw five of the eight clues of intoxication during Muriuki’s performance of the walk-and-turn test.
The third test Trooper Englebright performed was the one leg stand. Muriuki failed this test as well. He was off-balance and raised his arms to try to balance himself, and put his foot down four times during the test. Muriuki showed three of the four clues of intoxication during the one-leg-stand test.
Based on Muriuki’s driving, physical condition, and performance of the field sobriety tests, Trooper Englebright concluded that Muriuki was impaired. Accordingly, Trooper Englebright placed Muriuki under arrest for driving under the influence, put him in the back of the patrol car, and drove to the nearest police station, which was the Sea-Tac Police Department.
Trooper Englebright read Muriuki his Miranda[2]
warnings and the implied consent warnings. Muriuki was also advised of the implied consent warnings for breath, including that his driver’s license would be suspended for a year if he refused to take a breath test, and Muriuki refused to take the test. Muriuki told the officer at the station that he had had two beers that evening.
The State charged Muriuki with felony DUI and driving while license suspended. Before trial, Muriuki pleaded guilty to the latter charge.
During a CrR 3.5 hearing on the admissibility of Muriuki’s statements to Trooper Englebright, the trooper testified that with regard to the implied consent warnings, Muriuki not only stated that he was not going to take the breath test, but also “indicated that he didn’t have anything to lose because he didn’t have a license to begin with.”[3]
During closing argument on the felony DUI charge, the prosecutor stated:
And that’s one thing that just is screaming that “I was affected by alcohol” was his refusal to take the breath test. He is going to lose his license for a year, and he doesn’t blow into the machine? Why would anybody risk losing their license for a year when they don’t think they are intoxicated, or they don’t think they’re affected by alcohol? If he — he knew he was affected by alcohol, and that’s why he chose to refuse that breath test and lose his license for a year. That screams that he knew he was under the influence of or affected by alcohol.
Defense counsel did not object to these statements by the prosecutor. On appeal, Muriuki argues that the foregoing statements constituted prosecutorial misconduct that denied him the right to a fair trial.
ANALYSIS
To establish prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial to the defendant’s right to a fair trial.[4] Prejudice is established only if there is a substantial likelihood that the instances of misconduct affected the jury’s verdict.[5] To determine whether a prosecutor’s comments during closing argument constitute prosecutorial misconduct, we review the comments in the context of the entire record and the circumstances at trial.[6] Where, as here, defense counsel fails to object to the prosecutor’s comments during trial, reversal is required only if the misconduct was so flagrant and ill-intentioned that no instruction to the jury could have cured the resulting prejudice.[7]
Evidence of a defendant’s refusal to take a breath test is admissible as evidence of guilt.[8] Neither the statute nor case law creates an exception to the admissibility of such evidence where the defendant’s license was suspended or revoked at the time of the refusal to take the breath test.
Even if, however, as Muriuki argues, the prosecutor’s comments were improper because they introduced a fact not in evidence, namely that Muriuki had a license at the time he refused a breath test, we find no substantial likelihood that the comments affected the jury’s verdict. Trooper Englebright repeatedly testified that given his extensive training in the detection of drivers’ under the influence, he was certain Muriuki was under the influence of alcohol at the time he placed him under arrest. Trooper Englebright testified at length about the field sobriety tests he performed and stated that Muriuki failed each of the tests and exhibited most of the clues of intoxication on each test. The trooper also testified that Muriuki’s watery eyes and wobbling were indicative of intoxication. The evidence of Muriuki’s intoxication was overwhelming.[9] We find no substantial evidence that the prosecutor’s comments regarding Muriuki’s refusal to submit to a blood test impacted the jury’s verdict.
Finally, even if the prosecutor’s comments were prejudicial, we conclude that had defense counsel objected to them, an instruction to the jury to disregard the comments would have cured any such prejudice. Accordingly, reversal of Muriuki’s conviction based on the prosecutor’s comments is not warranted.
We affirm.
WE CONCUR: