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State v. Smith

May 5, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
MARY ANNA SMITH AKA MARY ANNA MILLER, APPELLANT.



Appeal from Superior Court of King County. Docket No: 91-1-03586-1. Date filed: 12/07/93. Judge signing: Hon. Leroy McCullough.

Petition for Review Denied October 7, 1997,

PER CURIAM - Mary Miller appeals from her conviction of delivery of cocaine within a school zone. She makes two arguments: (1) that the prosecution was barred by the double jeopardy clause because it occurred after Miller had already been punished for the same act in a civil forfeiture action, and (2) that her conviction should be reversed as a result of the prosecutor's unfairly prejudicial rebuttal argument. Miller's double jeopardy claim is without merit. In addition, because she failed to object to the prosecutor's argument or to establish prejudice, we reject her second argument and affirm her conviction.

Police officers seized Miller's car and served her with a notice of forfeiture. Two days later, the State charged Miller with delivery of cocaine. Later, Miller's car was returned to her and the forfeiture action dismissed.

The United States Supreme Court has held that civil forfeiture is remedial, not punitive, for purposes of double jeopardy analysis. *fn1 Thus, the State did not violate Miller's federal constitutional rights by pursuing the criminal action after instituting the forfeiture action. In any event, because forfeiture does not implicate double jeopardy, it is clear that mere temporary loss of use does not.

At trial, the State presented evidence that undercover officers Mullens and Terry asked a woman where they could buy cocaine. The woman directed the officers to a nearby parked car occupied by three persons, including Miller in the front passenger seat. Mullens stood just outside the passenger door and gave Miller a previously copied $20 bill in exchange for cocaine. During the transaction, Miller looked Mullens in the face. Terry did not see Miller's face. He described her as wearing a green, long-sleeved shirt. After completing their purchase, the officers returned to their car and drove by Miller's car as they left. Terry noted Miller's car and its license plate number. He transmitted a description of the car and license plate number to fellow officers, who arrested Miller and her husband, who was sitting in the driver's seat. Officers searched the car and found the same $20 bill used by Mullens to buy the cocaine in an open glove compartment.

At the police station, after being advised of her rights, Miller confessed that she sold an officer $20 worth of cocaine in order to raise money to pay overdue bills.

Miller presented evidence she was not the woman who sold the cocaine. Miller's husband, friend and sister, as well as Miller herself, testified that as Miller sat inside her car, a woman asked her if she had change for a $20 bill. Miller gave the woman two $10 bills in exchange for the $20. She placed the $20 in her glove compartment. Miller explained she confessed to selling drugs only because the police told her that if she didn't admit to the crime, her children would be taken away and placed in foster care. She denied selling drugs and testified she never saw officers Mullens or Terry the night of her arrest.

During closing argument, defense counsel argued that one of the many reasons to doubt the State's case was the testimony of the defense witnesses:

These people are the salt of the earth. They are not sophisticated. They are not trained witnesses. They haven't sat on the witness stand and talked before. . . . But you saw them and you heard them, and they were believable.

During rebuttal, the prosecutor argued as follows, without objection from Miller:

You have a key reason to doubt, as the defense attorney points out, because these are the salt of the earth people who have testified on behalf of the defendant and they have a very believable story. Does it seem a little bit too perfect? It's no secret the defense knows what the State is going to go for in the case. The defense has the discovery in the case. They know what our theory of our case is.

She has got to say something. She has got to come up with something to create a doubt in your mind. So what happens is that all of these people get together and, by the way, it is her husband, her sister, who, by the way, had been convicted of theft in the third degree, and a friend of hers. And they just happened to be right there . . . .

Members of the jury, they got together and they came up with something. They have got to. The reason they have to is because the buy money is found in the glove compartment of the car. Ms. Miller wants you to believe that when she got the buy money, ...


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