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State v. McCall

Court of Appeals of Washington, Division 1

November 18, 2013

STATE OF WASHINGTON, Respondent,
v.
LITTERTORY DEANDRE MCCALL, Appellant.

UNPUBLISHED

Cox, J.

Littertory McCall challenges his judgment and sentence, claiming that the prosecutor made improper statements during closing argument and rebuttal and that this misconduct requires reversal. Because McCall fails to show that the statements, to which he failed to object below, were incurable by a proper instruction or prejudicial, we disagree and affirm.

The State charged McCall with one count of delivery of cocaine, one count of possession of cocaine with intent to deliver, one count of possession of marijuana with intent to deliver, and one count of bail jumping.

At trial, the State presented testimony from four Seattle police officers. These officers testified that on April 1, 2012, they were working on a narcotics "buy/bust" operation. A "buy/bust" operation is where undercover police officers attempt to buy street-level narcotics and then, if successful, the seller is immediately arrested.

Two of the four officers were working undercover. One testified that McCall gave him crack cocaine in exchange for prerecorded twenty-dollar bills. The second testified that he observed the exchange.

The other two officers were part of the arrest team. One testified that when he arrested McCall, he found the prerecorded twenty-dollar bills and a rock of cocaine in McCall's pocket and a second rock of cocaine on the ground. The other testified that he recovered a backpack that contained marijuana.

McCall testified on his own behalf. He testified that the undercover officer handed him twenty-dollar bills, instructed him to give the money to another man, and then walked away. He denied giving the officer any cocaine, and he denied possessing cocaine. McCall testified that the cocaine was planted on him during the arrest. He testified that he planned to smoke the marijuana.

During closing argument, the prosecutor explained the reasonable doubt standard as follows:

So, it doesn't require that you have not one shred of doubt that there's some scenario that's hypothetically possible under which he might not have done it. No. It asks, do you believe he did it, and is there a reasonable doubt? Is there a reasonable scenario or reasonable explanation for how it might have happened that he didn't commit the crime? So, when you're deliberating, think about that. Is it reasonable to think that he didn't do it? Is there a reasonable probability that this—that it didn't happen, and that is what the—the test requires. If you believe it's true, if you believe the charge is true, and that belief is going to stay with you, then you are satisfied beyond a reasonable doubt, and it is your duty to return a verdict of guilty.[1]

And in rebuttal, the prosecutor stated:

And if you have doubts, ask yourself, is that a reasonable doubt? Is it reasonable to think that that other scenario happened? And that is how you have to analyze these cases.[2]

McCall failed to object to either of the above parts of the prosecutor's arguments.

The jury found McCall not guilty of possession of marijuana with intent to deliver. It could not agree on a verdict of cocaine possession with intent to deliver or on bail jumping. The ...


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