Appeal from Superior Court of King County. Docket No: 95-1-04185-6. Date filed: 11/06/95. Judge signing: Hon. Kathleen J. Learned.
PER CURIAM -- Semere Gebre appeals his conviction for delivery of cocaine, arguing that the prosecutor's closing argument infringed on his right to be present at trial. He further argues that the prosecutor's remark was not harmless. Because the remark was too subtle and brief to infringe Gebre's rights and because any infringement was harmless beyond a reasonable doubt, we affirm.
The State charged Gebre and his codefendant, John Hawkins, with one count of delivery of cocaine. Hawkins pleaded guilty and subsequently testified on Gebre's behalf.
At trial, Officer Leist testified that on the evening of June 6, 1995, he acted as a roving observer in a "buy-bust" operation near Occidental Park. He carried prerecorded buy money in case the opportunity for a controlled buy arose.
Gebre approached Leist, who indicated he was looking for narcotics. Gebre asked how much he wanted, and Leist said $40 worth. Gebre asked to see the money. When Leist produced it, Gebre said he wanted to feel the bills. Leist let Gebre touch a corner of the bills. Gebre said the bills felt phony but did not let go of them. Leist told him to let go and said he was going to buy from somebody else.
Leist walked away, but Gebre came after him. Gebre apologized for calling the bills fake and said he would deal with him. After walking together for a short distance, Gebre told Leist to wait while he went to find some cocaine. When Gebre did not return, Leist went looking for another seller.
Leist soon ran into Hawkins, who said he could help Leist find what he wanted. As Leist and Hawkins walked around the area, they passed Gebre. Hawkins and Gebre made eye contact. Gebre eventually walked over to Leist and Hawkins and asked Leist to smoke some cocaine with him. Gebre pulled out a pipe and began loading it with what appeared to be cocaine. Leist refused to smoke with Gebre and started to walk away. Gebre called him back and held out his hand. Hawkins then picked a small white object out of Gebre's hand and gave it to Leist in exchange for a twenty dollar bill. The white object later tested positive for cocaine.
Officer Larrabee observed the transaction through binoculars and generally corroborated Leist's version of the transaction. He also testified that he saw Hawkins hand Gebre currency after the transaction.
A member of the arrest team--Officer Jokela--testified that as he moved in to arrest, he saw Gebre throw currency on the sidewalk and a pipe between some cars. Jokela recovered the currency and found that the serial numbers on the bills matched serial numbers on his photocopy of the buy money. Jokela also recovered the shattered pipe, which appeared to contain cocaine. Gebre was then arrested by another officer.
Jokela testified he was ten to fifteen feet from Gebre when he threw the currency, but he admitted he might have told a defense investigator he was half a block away. Jokela also testified that both suspects were wearing black pants and black jackets, although one was wearing a black baseball cap.
Hawkins testified that prior to June 6, 1995, he had seen Gebre several times but did not know him. When asked to explain how he and Gebre got together on June 6, Hawkins said Gebre looked like he needed to rest his feet, so Hawkins invited him to his home. Shortly thereafter, they encountered Officer Leist, who was accompanied by a black male with reddish hair and a goatee. Leist and his companion asked Hawkins for cocaine. Hawkins told Leist to walk behind him, and they proceeded to conduct a transaction as they walked. According to Hawkins, Gebre had no part in the transaction and watched "in disbelief . . . ."
As Hawkins and Gebre walked away, Hawkins became suspicious of Leist and threw the money onto the street. The police then arrested Hawkins, Gebre, and a third man whom Hawkins did not know. Hawkins denied having a pipe in his possession that evening and said he never saw Gebre with one. Hawkins also denied having a cocaine addiction. The prosecutor then confronted him with a contrary statement to an interviewer.
Gebre testified that he is a cocaine addict but had no drugs on him when he met Officer Leist on June 6. When Officer Leist said he was looking for cocaine, Gebre asked how he was going to pay for it. Leist showed Gebre some currency, and Gebre attempted to take it. Leist appeared angry, so Gebre let go. According to Gebre, Leist walked away but then turned around and came back. Gebre immediately apologized for trying to take the money. Leist again asked for cocaine, and Gebre said he would help him find some if Leist would let him smoke with him.
As they walked around, Leist told Gebre he did not want to smoke with anybody, including Gebre. At that point, Gebre saw no reason to help Leist, so he went to get something to eat. He subsequently ran into Hawkins, whom he had seen before but did not know. Hawkins told ...