Appeal from Superior Court of King County. Docket No: 95-1-05342-1. Date filed: 01/05/96. Judge signing: Hon. William L. Downing.
PER CURIAM. Darl Roscoe appeals his convictions for violating the Uniform Controlled Substances Act (VUCSA) and for committing that crime within 1,000 feet of a school. We conclude that the trial court properly denied his motion to dismiss his case because the prosecutor's unavailability for trial was unavoidable, so the trial court had good cause under CrR 3.3(d)(8) to delay trial beyond his speedy trial period. There was sufficient evidence to support Roscoe's convictions and improper comments by the prosecutor were not likely to have affected the outcome of the trial. We, therefore, affirm.
On the evening of July 29, 1995, Seattle police officer Donnie Lowe was working as an undercover buyer in a buy-bust operation. He was near Occidental Park, an area known for high narcotics activity, when he encountered Defendant Darl Roscoe. Lowe told Roscoe he was looking for two "twenties." Roscoe said he had only one left. He dumped a piece of rock cocaine from a translucent film canister into Lowe's hand after Lowe gave him $20 of police department "buy money". Lowe then signaled to a surveillance team that he had made a "good buy" and walked away.
Officer Martin Welte immediately came to Lowe with a radio and relayed a description of Roscoe to an arrest team. Within three minutes, Officer Michael Galarita arrested Roscoe. He found a film canister in Roscoe's pants pocket and a marijuana cigarette in Roscoe's shirt pocket, but did not find any buy money.
Roscoe was charged with violation of the Uniform Controlled Substances Act. The information was later amended to charge that the violation occurred without 1,000 feet of the perimeter of the Youth Employment Education Program School.
On October 2, Roscoe objected to an extension of the time for trial beyond October 3, the end of his speedy trial period, arguing that extending trial beyond the speedy trial period was not justified because prosecutor Anthony Lowe's *fn1 unavailability was avoidable and foreseeable. Roscoe claimed that Lowe had more cases on the trial calendar than any other prosecutor, so the case should have been assigned to another one. The court, however, granted an extension to October 4, then to the 5th, then 6th, and ultimately extended the trial 10 times because of Lowe's unavailability, although many of the extensions were for only 1 day.
On October 18, Criminal Presiding Judge Brian Gain denied Roscoe's second motion to dismiss his case for violation of the speedy trial rule and assigned it that day to Judge Downing. Thus, Roscoe's trial began 15 days after his speedy trial period expired.
Roscoe claims on appeal that his case should have been dismissed. Charges against a defendant may be dismissed if the requirements of the speedy trial rule are not met. *fn2 The rule requires a defendant who has not been released from jail following arrest to be brought to trial not more than 60 days after arraignment. *fn3 But if a trial cannot begin within 60 days of arraignment because of unavoidable or unforeseen circumstances and an extension will not prejudice the defendant, the time for trial may be extended. *fn4
A generalized reference to court congestion is not sufficient to justify an extension under CrR 3.3(d)(8). *fn5 But an extension may be justified as an unavoidable circumstance if the prosecutor is in another trial when he or she requests an extension. *fn6 A trial court's grant of a motion for an extension under CrR 3.3 is reviewed only for abuse of discretion and will not be disturbed unless the trial court manifestly abused its discretion. *fn7
Roscoe argues that the prosecutor's unavailability in this case was neither unavoidable nor unforeseen. He contends that a prosecutor could have been available if the prosecutor's office would either reduce the number of cases filed or increase plea bargaining. He claims that a prosecutor's scheduling conflicts are akin to "docket congestion," which the court held did not justify a trial date beyond the speedy trial period in State v. Mack. *fn8 But courts have rejected the argument that the shortage of prosecutors is analogous to docket congestion or inadequate judicial manpower and have held that when a prosecutor is unavailable because of another trial and the prosecutor's office is making a good faith effort to meet the demands of the speedy trial rule, the prosecutor's unavailability is unavoidable. *fn9
In this case, the court, based upon its own experience, concluded that both the prosecutors and defense attorneys were doing all that they could to meet the demands of the speedy trial rules, given the resources of their organizations. Lowe had argued that he was no busier than any other prosecutor, so assigning Roscoe's case to another prosecutor would not remedy the problem.
Furthermore, Roscoe's argument that he was prejudiced by the delays was not persuasive. He claimed the delay caused his case to be reassigned to a different defense attorney because his original attorney went on vacation and an intern who had assisted with his case had become unavailable, yet he had argued that the case could easily be reassigned to a different prosecutor because it was a straightforward VUCSA case. He, therefore, did not show how the loss of his original attorney and the intern prejudiced him. Under these circumstances, the trial court did not abuse its discretion when it denied his motion to dismiss. *fn10
Roscoe next argues that the some of the prosecutor's comments in closing argument amount to misconduct that deprived him of a fair trial. Prosecutors are accorded reasonable latitude to draw inferences from the evidence adduced at trial, but comments made to inflame the passions of the jury are improper. *fn11 Unless there is a substantial likelihood the prosecutor's misconduct affected the jury's verdict, though, it does not constitute prejudicial error. *fn12 The defendant bears the burden of establishing that the prosecutor's comments were improper and prejudicial. *fn13
And, if the defendant fails to object at trial, he waives his right to have the issue considered on appeal unless the argument was so flagrant, ill-intentioned, and prejudicial that a curative instruction would not neutralize its effect. *fn14 Allegedly improper comments are reviewed considering the total argument, the issues in the case, the evidence presented, and the instructions. *fn15
Roscoe complains about five statements the prosecutor made in closing. He objected to only three of the statements, but argues that this court should consider all five because they create the context for the other objectionable comments. Roscoe concedes, however, that the arguments he did not object to were not so improper that they could not have been remedied by a curative instruction, and fails to show how they "set ...