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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  )  No. 66438-7-I
                      Respondent,
                                                  )  DIVISION ONE
              v.
                                                     UNPUBLISHED OPINION
                                                  )
 DERRICK BENNETT THOMPSON,
                                                  )  FILED: April 23, 2012
                      Appellant.
                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       APPELWICK, J.  --  A court impermissibly comments on  the  evidence 

presented at trial only if the court's attitude toward the merits of the case is 

reasonably  inferable from its     remarks.  The jury could not make such an 

inference from the court's comments in this case.  Thompson also fails in his 

attempt to demonstrate either prosecutorial misconduct or ineffective assistance 

of counsel.   We affirm his conviction for possession of cocaine with intent to  

No. 66438-7-I /2

deliver.

                                        FACTS

       On March 9, 2010, police conducting surveillance in the Pioneer Square 

area of Seattle observed Derrick Thompson engaging in what appeared to be 

hand to hand drug transactions.  During a search incident to arrest, police found 

.2 grams of cocaine and $526 on Thompson's person, but no paraphernalia for 

drug use.    The State charged him with possession of cocaine with intent to 

deliver.  

       Prior to trial, the court excluded evidence that the surveillance area was 

known for drug activity.  The prosecutor could, however, elicit testimony that the 

location was a "high crime" area.  

       At trial, Seattle Police Officer Sonya Fry testified that she saw Thompson 

enter a park and walk up to three people.  Fry said the three people had been

"smoking crack cocaine" moments before.  When asked how she knew they 

were smoking crack, Fry replied, "Well, normally right in front of Lazarus Day 

Center, there's a lot of people outside dealing crack cocaine."  The prosecutor 

then asked if the pipe the people were using was something Fry "knew to be a 

crack pipe."  Fry said, "Yes."  She proceeded to explain what a crack pipe looks 

like, what the people were doing with the pipe, and why she concluded they

were smoking crack in the crack pipe.  

       When Thompson joined the group, he pulled a baggie out from under his 

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No. 66438-7-I /3

waistband, took an object out of the baggie, and placed it on someone's palm.  

The object looked like a "white rock."     Fry suspected it was crack cocaine and 

notified the arrest team.  

       Officer Jonard Legaspi corroborated much of Officer Fry's testimony.  He 

saw Thompson exchanging "what looked like [United States]                 currency and 

drugs."  He testified that Thompson delivered "an unknown type of narcotics."  

When the transaction was done, Thompson tucked a plastic baggie inside his 

waistband and left the area.  Police arrested him shortly thereafter.

       Officer  Legaspi searched Thompson incident to arrest.  He               found a 

baggie containing .2 grams of cocaine in his waistband and a total of $526 in 

small denominations in his pockets and wallet.  Legaspi testified that small 

denominations are commonly used in street-level narcotics transactions and that 

.2 grams of cocaine is a "marketable amount" that "you can usually buy and sell 

on the streets of Seattle."  

       The jury convicted Thompson as charged.  He appeals.

                                      DECISION

       Thompson first contends the trial court impermissibly commented on the 

evidence during the following evidentiary ruling:  

       [PROSECUTOR:]  Now, two -- .2 grams of crack cocaine, how 
       much would that generally go for on the streets? 

       [WITNESS:]  Usually $20. 

       . . . .

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No. 66438-7-I /4

       [PROSECUTOR:]  And is that a marketable amount?  Is that an 
       amount you can usually buy and sell on the streets of Seattle? 

       [WITNESS:]  Oh, yes.  It's easy to carry, and it's not too bulky.  It's 
       not like you are selling kilos out on the streets of Seattle. 

       [PROSECUTOR:] What does the average street deal go for? 

       [WITNESS:]  Depending on --

       [Defense Counsel]:   I'd object.  It's not relevant to this case. 

       THE COURT: What's the relevance?

       [PROSECUTOR]:  Should we have a sidebar, your Honor? 

       THE COURT: No, you can tell me.  What are you trying to 
       establish, the fact? 

       [PROSECUTOR]:  This is a marketable amount of crack cocaine 
       on the streets of Seattle that's bought and sold every day.  

       THE COURT: You have already established that with this witness.  
       Why don't you move on to your next question. 

(Emphasis added.)

According to Thompson, the emphasized portion of this ruling told the jury "the 

prosecution had 'established'"       the marketability of the cocaine         and thus 

commented on the evidence.  We disagree. 

       The Washington Constitution provides that "[j]udges shall not charge 

juries with respect to matters of fact, nor comment thereon, but shall declare the 

law." Const. art. IV, § 16.  A court generally does not comment on the evidence 

simply by giving its reasons for a ruling.  In re Det. of Pouncy, 144 Wn. App. 

609, 622, 184 P.3d 651 (2008), aff'd, 168 Wn.2d 382, 229 P.3d 678 (2010).  

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No. 66438-7-I /5

Rather, a comment on the evidence occurs only if the court's attitude toward the 

merits of the case is reasonably inferable from the court's statement.  State v. 

Cerny, 78 Wn.2d 845, 855, 480 P.2d 199 (1971),  vacated in part on other 

grounds by Cerny v. Washington, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 

(1972).  

       Here,   the court's  attitude toward      the merits of the case was          not 

reasonably inferable from its ruling.  The ruling merely conveyed the court's 

conclusion that the witness had already testified to the point the prosecutor was 

continuing to pursue with his questioning.  This was not a comment on the 

evidence.  See State v. Swan, 114 Wn.2d 613, 657-658, 790 P.2d 610 (1990)

(court's ruling that it would    "accept  [proposed expert]  as an expert on that 

subject" was not a comment on the evidence because the ruling offered no 

opinion as to the credibility, sufficiency, or weight of the expert's testimony and 

merely indicated that the requirements of ER 702 were satisfied);  Cerny, 78

Wn.2d at 855-856 (court's statement that "'[t]he burden is on the state to tie this 

together'"  followed by its ruling      that  "'the chain of evidence has been 

established'" was not a comment on the evidence).  Compare State v. Lane, 125 

Wn.2d 825, 835-38, 889 P.2d 929 (1995) (judge's remarks about a prosecution 

witness's early release was a comment on the evidence because it conveyed the 

judge's opinion on a fact relating to the witness's credibility); State v. Lampshire, 

74 Wn.2d 888, 891-93, 447 P.2d 727 (1968) (judge's remarks in sustaining the 

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No. 66438-7-I /6

prosecutor's objection was an impermissible comment because it conveyed his 

opinion about the defendant's testimony).  

       Even if the court's statement could be construed as a comment on the 

evidence, any error was cured.  The court twice instructed the jury to disregard 

any statement that appeared to express the court's personal opinion about the 
case.1  We presume the jury followed these instructions.  Cerny, 78 Wn.2d at 

856.  The court's isolated comment was therefore cured.  See State v. Elmore, 

139 Wn.2d 250, 276, 985 P.2d 289 (1999) (any comment on the evidence was 

cured by instruction to disregard same); Egede-Nissen v. Crystal Mountain, Inc., 

93 Wn.2d 127, 141, 606 P.2d 1214 (1980) (isolated judicial comment "may be 

cured by an instruction").    

       Thompson next contends the prosecutor committed reversible misconduct 

when, in violation of a pretrial ruling, he elicited testimony that the surveillance 

       1 The court orally instructed the jury as follows: 

              The law does not permit me to comment on the evidence in 
       any way, and I will not intentionally do that.  By a comment on the 
       evidence, I mean some expression or indication from me as to my 
       opinion on the value of the evidence or the weight to be given to it.

              If it appears to you that I do comment on the evidence, you 
       are to disregard such apparent comment entirely. 

Similarly, the court's written instructions stated in part: 

       It would be improper for me to express, by words or conduct, my 
       personal opinion about the value of testimony or other evidence.  I 
       have not intentionally done this.  If it appeared to you that I have 
       indicated my personal opinion in any way, either during trial or in 
       giving these instructions, you must disregard this entirely.

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No. 66438-7-I /7

occurred in an area known for crack cocaine trafficking:

       [PROSECUTOR:]  Just talk a moment about these people that you 
       observed smoking crack cocaine.  Why is it that you think they 
       were smoking crack cocaine?

       [WITNESS:]  Well, normally right in front of Lazarus Day Center, 
       there's a lot of people outside dealing crack cocaine.  

Thompson acknowledges that his trial counsel did not object and that any

misconduct is not reviewable unless it was so flagrant and ill-intentioned as to 

be incurable.  State v. Padilla, 69 Wn. App. 295, 300, 846 P.2d 564 (1993).  He 

argues, however, that "[w]hether the prosecutor intentionally elicited this answer 

or failed to inform Officer Fry of the court's ruling, the testimony was a clear 

violation of the court's pre-trial order and constituted prosecutorial misconduct."  

(Emphasis added.)  We disagree.  

       Even assuming the witness' testimony violated the court's pretrial ruling, 

that fact does not establish that the prosecutor committed misconduct, let alone 
flagrant and ill-intentioned misconduct.2     Thompson does not demonstrate, nor 

does the record suggest, that the prosecutor's question was ill-intentioned or 

designed to    elicit  a response violating    the court's ruling.  The prosecutor 

specifically asked the witness to "talk . . . about these people that you observed"

and why the witness thought they were smoking crack cocaine.  This question 

       2 Thompson does not argue the related, but analytically distinct, concept 
of trial irregularity arising from a witness' violation of a ruling in limine.  See
State v. Escalona, 49 Wn. App. 251, 253-56, 742 P.2d 190 (1987) (finding trial 
irregularity where witness referred to matter excluded by motion in limine); State 
v. Thompson, 90 Wn. App. 41, 45-47, 950 P.2d 977 (1998). (irregularity where 
witness violated order in limine).      

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No. 66438-7-I /8

focused on what the witness observed, not on the area's reputation.  When the 

witness strayed from the question, the prosecutor ignored the answer and 

immediately refocused the witness on what she observed.  There was no 

misconduct.  And,       to the extent anything the prosecutor did could be 

characterized as misconduct, it was not so egregious as to be incurable.  

       Thompson argues in the alternative that his counsel was ineffective for 

failing to object to the  testimony that violated the court's pretrial ruling.  To 

prevail on this claim, Thompson must demonstrate both deficient performance 
and  resulting  prejudice.3    We strongly presume        that  defense counsel was 

effective,4 and  Thompson      must   establish  "the absence of any 'conceivable

legitimate tactic explaining counsel's performance.'"5       The decision of when or 

whether to object is generally  a matter of trial tactics and only in egregious 

circumstances will the failure to object constitute ineffective assistance of 

counsel.  See State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). 

       Thompson fails to demonstrate either deficient performance or prejudice. 

The officer's statement was isolated and the prosecutor did not mention it in 

closing argument.  Defense counsel could have reasonably concluded that an 

objection calling attention to the statement would have done more harm than 

       3 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 
(1995).
       4 Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335.
       5 State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State 
v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)); McFarland, 127 
Wn.2d at 335-36.  

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No. 66438-7-I /9

good.  And, given the strength of the State's case, the evidence that the area 

was a high crime area and the evidence that the incident occurred outside a 

center offering drug and alcohol services, there is no reasonable probability that 

the officer's single reference to drug trafficking affected the outcome of the trial.    

       Thompson also contends his counsel should have objected to testimony 

that the people he approached were smoking crack cocaine in a crack pipe and 

that  he provided them with "an unknown type of narcotics in exchange for 

money."   Thompson claims all of this testimony was "based on mere guess, 

speculation, or conjecture"      and violated the requirement in ER 602              that 

testimony be based on personal knowledge.  Again, we disagree.

       The testimony was not mere speculation or conjecture.  Rather,  the 

officers drew   reasonable  inferences  from their       observations,  training,    and 

experience.  Police officers may testify to inferences or opinions if  they are
based on specialized training or experience and are helpful to jury.6           State v. 

Sanders, 66 Wn. App. 380, 386, 832 P.2d 1326 (1992) (inference drawn by 

officer based on absence of drug paraphernalia was not objectionable since it 

was based on officer's training and experience in drug transactions); State v. 

Francisco, 148 Wn. App. 168, 177, 199 P.3d 478 (2009) (trial court properly 

admitted detective's testimony that, based on his experience, drugs are usually 

sold, not given away).  Thompson nowhere addresses this basis for admitting 

       6 The testifying officers in this case had extensive training and experience 
with narcotics and narcotics transactions.

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No. 66438-7-I /10

the officers' testimony.   

       Even if portions of the officers' testimony asserted inferences as fact and 

were objectionable on that basis,  defense          counsel could have reasonably 

concluded that an objection was unnecessary and counterproductive since the 

witnesses could, and ultimately did, clarify that their conclusions were not fact, 

but rather were inferences based on their training and experience.  Furthermore, 

to the extent the witnesses did not clarify the nature of their testimony, defense 

counsel could do so during cross-examination and closing argument.  In fact, 

defense counsel pointed out during cross-examination and argument that officer 

Legaspi did not actually see narcotics but was instead inferring that fact from 

movements consistent with a narcotics transaction.  There is no showing of 

deficient performance.  Nor is there any reasonable probability that the outcome 

would have been different had counsel objected.  

       Affirmed. 

WE CONCUR:

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