243 P.3d 936
Wash. Ct. App.2010Background
- Johnson was convicted of unlawful possession of a controlled substance (cocaine) following a May 4, 2008 incident in Tacoma.
- Officer Thiry pursued Johnson on foot after a bicycle stop and Johnson allegedly eluded police; multiple stun gun exposures occurred during the arrest.
- A baggie containing crack cocaine was found in Johnson's right front pocket after officers handcuffed him.
- Johnson testified he did not know cocaine was in the sweatshirt and had no knowledge of possessing drugs.
- The trial court instructed unwitting possession burdens and the presumption of innocence; closing arguments included misstatements about reasonable doubt.
- On appeal, Johnson challenged prosecutorial conduct as misstate of the law and ineffective assistance of counsel for failure to object; the court remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misstatement of reasonable doubt | Johnson | Johnson | Misconduct; reversible error |
| Presumption of innocence undermined | Johnson | Johnson | Misconduct; reversible error |
| Flagrant and ill-intentioned conduct not curable by instruction | Johnson | Johnson | Reversal required; new trial |
Key Cases Cited
- State v. Venegas, 155 Wash.App. 507 (2010) (forbids improper fill-in-the-blank reasonable doubt argument; not curable by instruction)
- State v. Anderson, 153 Wash.App. 417 (2009) (improper to instruct jury to convict unless they have a reason not to; predisposition to convict)
- State v. Fleming, 83 Wash.App. 209 (1996) (flagrantly ill-intentioned prosecutorial conduct recognized)
- State v. Warren, 165 Wash.2d 17 (2008) (no constitutional harmless-error analysis for such misconduct; reversible here)
- State v. Bennett, 161 Wash.2d 303 (2007) (prejudice from misstatements of presumption of innocence)
- State v. Balzer, 91 Wash.App. 44 (1998) (unwitting possession defense burden of proof by preponderance)