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Washington v. Barrow

as corrected.: April 15, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
FLOYD A. BARROW, APPELLANT



Coleman, J. Grosse, C.j., concurs. Winsor, J. Pro Tem., dissents by separate opinion.

Author: Coleman

Floyd Barrow appeals a judgment and sentence for two violations of the Uniform Controlled Substances Act. He contends that prosecutorial misconduct deprived him of a fair trial.

Barrow was arrested in the vicinity of Second and Pike in downtown Seattle for selling $20 worth of a cocaine-like substance. An undercover police officer, Donna J. O'Neal, had made the purchase and then radioed the seller's description to other officers in the vicinity. Based on Officer O'Neal's description, Officer Victor Maes apprehended Barrow. During a search incident to arrest, Officer Maes found a narcotics pipe in Barrow's pocket, but no controlled substances. Barrow had less than $1 in his possession.

Subsequent laboratory analysis revealed that the substance sold to Officer O'Neal was not cocaine, but that Barrow's pipe contained cocaine residue.*fn1 Barrow was charged with violating the "burn statute", RCW 69.50.401(c),*fn2 and with unlawful possession of a controlled substance in violation of RCW 69.50.401(d). The unlawful possession charge was based on the cocaine residue in the pipe.

The matter went to trial before a jury, where Barrow testified in his own behalf and denied having knowingly

possessed cocaine. Barrow explained that he had surreptitiously taken the pipe from his brother in hopes of using it to get high with somebody, and that he therefore had not known the pipe contained cocaine residue.

Barrow also denied having sold Officer O'Neal the purported cocaine and asserted that this was a case of mistaken identity. To bolster this defense, Barrow's lawyer sought during closing argument to undermine Officer O'Neal's identification testimony: he emphasized Officer O'Neal's inexperience*fn3 and her probable frustration on the night of Barrow's arrest.*fn4 He also emphasized the State's failure to provide any corroborative physical evidence of Barrow's guilt.

The jury found Barrow guilty as charged. This appeal followed.

I

Barrow first contends that his conviction on the possession charge should be overturned because the State improperly shifted the burden of proof onto him. During closing, the prosecutor questioned whether the jury believed Barrow's testimony that he had taken the pipe from his brother, and then repeatedly asked "Where is his brother" who could testify in Barrow's behalf. Barrow contends that the "Where is his brother" questions shifted onto him the burden of proof as to his lack of knowledge defense. See generally State v. Traweek, 43 Wash. App. 99, 106-08, 715 P.2d 1148, review denied, 106 Wash. 2d 1007 (1986).

[1] This court recently clarified when it is permissible for a prosecutor to inquire into a defendant's failure to present evidence. In State v. Contreras, 57 Wash. App. 471,

788 P.2d 1114, review denied, 115 Wash. 2d 1014 (1990), we considered a closing argument similar to the one at issue here in that the prosecutor asked "where is" the witness who could corroborate defendant's exculpatory testimony. Contreras, at 476. The Contreras court found no impropriety in the argument and held:

When a defendant advances a theory exculpating him, the theory is not immunized from attack. On the contrary, the evidence supporting a defendant's theory of the case is subject to the same searching examination as the State's evidence. The prosecutor may comment on the defendant's failure to call a witness so long as it is clear the defendant was able to produce the witness and the defendant's testimony unequivocally implies the uncalled witness's ability to corroborate his theory of the case.

Contreras, at 476. In other words, a prosecutor can question a defendant's failure to provide corroborative evidence if the defendant testified about an exculpatory theory that could have been corroborated by an available witness.

Other Washington cases are in accord with the Contreras decision allowing, in limited situations, prosecutorial comment on a defendant's failure to present evidence. Compare State v. Bebb, 44 Wash. App. 803, 815, 723 P.2d 512 (1986) ("[a] prosecutor can comment on the accused's failure to present evidence on a particular issue if persons other than the accused or his spouse could have testified for him on that issue"), aff'd on other grounds, 108 Wash. 2d 515, 740 P.2d 829 (1987) with State v. Cleveland, 58 Wash. App. 634, 647-49, 794 P.2d 546 (error for prosecutor to generally imply that defendant had a duty to present any favorable evidence in existence), review denied, 115 Wash. 2d 1029 (1990). Federal and other state courts also are generally in accord. See United States v. Baker, 855 F.2d 1353, 1362 (8th Cir. 1988) (prosecutor's comment that nothing in record supported defendant's testimony was a permissible comment on the witness's testimony), cert. denied, 490 U.S. 1069 (1989); State v. Sinclair, Conn. App. , 569 A.2d 551, 555 (1990) (prosecutor entitled to comment on defendant's failure to support his own factual theories); State v.

Howard, 320 N.C. 718, 360 S.E.2d 790, 796 (1987) (permissible for prosecutor to comment on defendant's failure to produce exculpatory or corroborative evidence); Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513, 526 (1988) (no impropriety in challenging defendant's failure to produce a witness who would have corroborated his testimony), cert. denied, 491 U.S. 910 (1989).

Here, Barrow personally testified about an exculpatory theory that could have been corroborated by his brother. Nothing in the record indicates that his brother could not be produced to testify. Accordingly, ...


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