[No. 34471-8-II. Division Two. April 29, 2008.]
[1] Prosecuting Attorneys — Duties — Conduct of Trial. A prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that an accused receives a fair trial. [2] Criminal Law — Trial — Misconduct of Prosecutor — Test. A criminal conviction will be reversed on the grounds of prosecutorial misconduct if the defendant shows (1) improper conduct by the prosecutor and (2) resulting prejudice to the defendant's right to a fair trial. Prejudice is shown where there is a substantial likelihood the misconduct affected the jury's verdict. [3] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Waiver — Failure To Object — Test. A criminal defendant's failure to object to an improper remark by the prosecutor at trial does not effect a waiver of the right to raise a claim of prosecutorial misconduct on appeal if the remark was so flagrant and ill-intentioned as to cause enduring and resulting prejudice that could not be remedied by a curative instruction. [4] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Review — Factors. For purposes of a claim of prosecutorial misconduct, a prosecutor's comments in closing argument are reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given by the trial court. [5] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Inferences From Evidence — In General. A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. [6] Criminal Law — Trial — Misconduct of Prosecutor — Violation of Pretrial Evidentiary Ruling — Inadvertent Error — Absence of Prejudice. A prosecutor's violation of a pretrial order excluding certain evidence does not constitute prosecutorial misconduct if the error is both inadvertent and nonprejudicial to the defense. [7] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Inferences From Evidence — Impermissible Inference — Unsupported Statements. Although a prosecutor has wide latitude in closing argument to draw and express reasonable inferences from the evidence, a prosecutor may not make prejudicial statements that are unsupported by the record. [8] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Credibility of Witnesses — Police Officer — Facts Not in Evidence. A prosecutor commits misconduct by bolstering a testifying police officer's character or credibility with prejudicial "facts" not in evidence. [9] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Credibility of Confidential Informant — Facts Not in Evidence. A prosecutor commits misconduct by bolstering a confidential informant's character or credibility with prejudicial "facts" not in evidence. [10] Criminal Law — Trial — Misconduct of Prosecutor — Subject Opened by Defendant — Effect. Even though a criminal defendant may "open the door" to testimony on a particular subject, the defendant does so within the confines of the rules of evidence. A defendant has no power to "open the door" to prosecutorial misconduct by introducing an improper subject. A prosecutor may not, therefore, examine a witness on an improper subject just because the defendant has "opened the door" to the subject. [11] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Facts Not in Evidence — Prejudicial Statements. A prosecutor commits misconduct in closing argument by persistently making prejudicial statements involving "facts" that are not in evidence. [12] Evidence — Opening the Door — Introduction of Inadmissible Evidence — Effect. The "opening the door" doctrine is an evidence doctrine that pertains to whether evidence concerning a subject matter is admissible at trial. There are two contexts in which the doctrine applies: (1) a party who introduces evidence of questionable admissibility may open the door to rebuttal with evidence that would otherwise be inadmissible and (2) a party who is the first to raise a particular subject at trial may open the door to evidence offered to explain, clarify, or contradict the party's evidence. [13] Criminal Law — Evidence — Opening the Door — Constitutional Requirements — Right to Fair Trial. The "opening the door" doctrine pertaining to the admissibility of evidence must give way to constitutional requirements, such as the right to a fair trial. Even if a criminal defendant "opens the door" to testimony on a particular subject matter during the examination of a witness, the prosecutor is not absolved of his or her ethical duty to ensure a fair trial by presenting only competent evidence on the subject. [14] Appeal — Review — Invited Error — Mistake by Party. The invited error doctrine applies when a party induces the trial court to err. It does not excuse a party's mistake; parties do not "err" as that word is understood in the context of appellate review. [15] Criminal Law — Trial — Misconduct of Prosecutor — Invited Error — Applicability. The invited error doctrine does not apply to prosecutorial misconduct; i.e., a prosecutor's misconduct cannot be excused on the grounds that it was "invited" by the defendant. [16] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Response to Defense Argument — Test. A prosecutor's improper remarks at trial are grounds for reversing a conviction, even if they were invited or provoked by defense counsel and were made in reply to defense counsel's acts and statements, if the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective. [17] Criminal Law — Trial — Misconduct of Prosecutor — Argument — Credibility of Witnesses — Police Officer — Prejudice. A criminal defendant is prejudiced by the prosecutor's misconduct of bolstering a testifying police officer's character or credibility with prejudicial "facts" not in evidence if the State's case substantially depends on whether the jury finds the officer's testimony to be credible. [18] Criminal Law — Trial — Misconduct of Prosecutor — Review — Harmless Error — Cumulative Effect. The cumulative effect of multiple instances of prosecutorial misconduct may warrant reversal of a conviction, even if each error standing alone would otherwise be considered harmless. [19] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Test. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits any rational trier of fact to have found guilt beyond a reasonable doubt. A claim of insufficiency of the evidence admits the truth of the State's evidence and all inferences that can be drawn therefrom. [20] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Review — Inferences. In determining the sufficiency of the evidence in support of a verdict against the defendant in a criminal case, a court will draw all reasonable inferences from the evidence in favor of the State and interpret all reasonable inferences from the evidence strongly against the defendant. [21] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Review — Role of Appellate Court — Deference to Trier of Fact. An appellate court reviewing a criminal conviction must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. [22] Witnesses — Credibility — Question of Law or Fact — Review. Witness credibility determinations are for the trier of fact to make and are not subject to appellate review. HOUGHTON, C.J., concurs in the result only. Nature of Action: Prosecution for unlawful delivery of a controlled substance. Superior Court: The Superior Court for Thurston County, No. 04-1-02370-3, Paula Casey, J., on March 8, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the prosecutor's repeated misconduct cumulatively deprived the defendant of a fair trial, but that the charge is not subject to dismissal because the record contains sufficient evidence to support a conviction, the court reverses the judgment and remands the case for further proceedings. Patricia A. Pethick-, for appellant. George O. Darkenwald- (of South Puget Sound Community College) and Edward G. Holm-, Prosecuting Attorney, for respondent. ¶1 QUINN-BRINTNALL, J. — Based on a confidential informant's (CI) tip, the Thurston County Narcotics Task Force set up a controlled buy targeting Richard Jones. Jones approached the CI, who was waiting in his car, and gave him a small bag of cocaine in exchange for money. The CI then met the Task Force officers and immediately handed them the small bag of cocaine. Thereafter, the State charged Jones with one count of unlawful delivery of a controlled substance. At trial, neither the CI nor Jones testified. But the State played for the jury a body wire recording and a videotape recording of the drug buy. The State also provided the jury with a transcript of the body wire recording. The jury found Jones guilty as charged. He appeals, arguing (1) prosecutorial misconduct, (2) insufficient evidence, and (3) that the CI was not credible. We hold that the prosecutor's repeated misconduct cumulatively deprived Jones of a fair trial and accordingly reverse and remand for retrial. FACTS BACKGROUND ¶2 Based on a tip from a CI, the Task Force set up a controlled drug buy targeting Jones. Officer Dale Elliott described the drug buy: The plan this day was to give [the CI] $850. We were going to equip him with a body wire or recording device. Then we were going to set him near the barber shop where he was working. And he would make a phone call to Mr. Jones, and the arrangement would be made to purchase the narcotics. He would wait, and Mr. Jones was hopefully going to show up and make a purchase. Report of Proceedings (RP) (Feb. 21, 2006) at 32. ¶3 Before the drug buy, Officer Elliott thoroughly searched the CI for drugs, finding none. And Officer Adam Seig thoroughly searched the CI's car for drugs, again finding none. The officers equipped the CI with a body wire and then gave him the buy money. From a nearby location, Officer Mike Aalbers recorded the events with a video camera. ¶4 The CI drove his car to the barber shop and parked it in the parking lot. Before Jones arrived, a man approached the CI's car and asked him for a haircut. The CI told the man that he was busy. ¶5 Officers Elliott and Seig observed the CI and the man during this conversation. Despite the unanticipated contact with someone other than Jones, they continued with the scheduled drug buy. Elliott and Seig testified that they continued with the buy because the man who had asked for a haircut did not lean into the CI's car window, exchange anything with the CI, or put anything into the CI's car. Neither Elliott nor Seig searched the CI or the car after the unanticipated contact with the man who had asked for a haircut. ¶6 Thereafter, the CI called Jones and arranged to meet at another location. The CI told Officer Elliott that he was going to drive about a block to another parking lot. Elliott and Seig followed the CI, both observing that he made no contact with anyone else. ¶7 After the CI parked his car in the parking lot, a car approached him. Jones exited his car and entered the CI's car. Officer Elliott testified, "Both people were bent down in conversation. I could see an exchange. I couldn't see what was exchanged, but I could see an exchange." RP (Feb. 21, 2006) at 45. ¶8 After the exchange, the CI drove his car back to the original parking lot. Again, Officers Elliott and Seig followed him, both observing that he made no contact with anyone else. When the CI exited his car, he immediately handed Elliott a small bag of cocaine. PROCEDURE ¶9 The State charged Jones with one count of unlawful delivery of cocaine, a controlled substance. At trial, neither the CI nor Jones testified. Officers Elliott and Seig testified as set out above, and the State played for the jury the body wire recording and the videotape recording of the purported drug buy. The State also provided the jurors with copies of the body wire recording transcript. ¶10 The jury found Jones guilty as charged. By special verdict, the jury found that Jones had unlawfully delivered a controlled substance within 1,000 feet of a school bus route stop. Based on Jones's offender score of five, the trial court sentenced him to 60 months of confinement. Jones appeals. ANALYSIS PROSECUTORIAL MISCONDUCT ¶14 Jones argues that four instances of prosecutorial misconduct occurred during his trial. He contends that the prosecutor (1) played an inadmissible portion of the body wire recording for the jury, (2) improperly bolstered the credibility of the CI and Officer Elliott during closing argument, (3) improperly cross-examined Elliott about why he thought the CI did not testify, and (4) asserted in closing argument that the CI did not testify because he was afraid of Jones. We hold that playing the inadmissible portion of the body wire recording was an inadvertent error that does not rise to the level of prosecutorial misconduct, but we hold that the three other instances constitute misconduct that cumulatively deprived Jones of a fair trial. A. PLAYING BODY WIRE RECORDING ¶15 First, Jones argues that the prosecutor committed misconduct when she ignored the trial court's order that portions of the body wire recording could not be played to the jury. Relying, on State v. Stephans, 47 Wn. App. 600, 604, 736 P.2d 302 (1987), Jones claims that this "[n]oncompliance with court orders constitutes misconduct." Br. of Appellant at 8. We disagree. ¶16 Before trial, the trial court ruled that the State could play an excerpt from the body wire recording to the jury but could not include any reference to future heroin buys contained in the tape. ¶17 Jones immediately requested a sidebar conference. The trial court heard argument, but it allowed the State to proceed. At the end of the day, the trial court allowed Jones to make a record of the objection he had made during the sidebar conference. ¶18 The State responded that it had made a mistake by not stopping the recording soon enough. The State told the trial court that it could give a limiting instruction to the jury, although "it would kind of highlight that area." RP (Feb. 21, 2006) at 97. Nevertheless, the State noted that the jury did not hear Jones's answer to the CI's request and noted that "it's harmless in this case because it's not on the transcript. You were listening to the transcription as well, Your Honor. You didn't hear it. And we didn't [hear a] response by Mr. Jones." RP (Feb. 21, 2006) at 97. B. BOLSTERING CREDIBILITY ¶20 Jones next argues that the prosecutor improperly bolstered the credibility of the CI and Officer Elliott during closing argument. We agree. ¶21 The prosecutor argued: [T]his [CI], he's been working with the task force for a long time. He's – this was now his seventh buy-walk. His seventh. Not first, not second, his seventh. And why did the police still use the same informants? Because they are reliable. Because they can be trusted. Because when they say something happens, it happens. When they are instructed to do something, they do it. They don't fool around. They don't steal money from the police. They don't take the buy funds and secretly hide them in a compartment only to be distrusted and discovered later on. That doesn't make any sense. And how much sense does it make to you that Detective Elliott or any narcotics detective would put their own reputation on the line? Their own credibility? Their own integrity of their investigation? Their very livelihood on the line for one silly person who is duping or snookering them somehow? They are smart individuals. They too are not fools. If they believe for one second, one second that [the CI] wasn't up to par, that he was under the influence or that he couldn't be trusted, do you think they would have continued to use him? I submit to you they would not. RP (Feb. 22, 2006) at 54. ¶23 Not only did the prosecutor's argument here bolster Officer Elliott's character, it did so by using facts not in evidence, namely that police (1) would suffer professional repercussions if they used an untrustworthy informant and (2) would have discontinued using an informant if they doubted his sobriety or trustworthiness. Similarly, the argument improperly bolstered the CI's character based on facts not in evidence that the police use the same informants repeatedly, as the CI in this case, because (1) those informants are "reliable" and "can be trusted"; (2) "when they say something happens, it happens"; (3) "[w]hen they are instructed to do something, they do it"; (4) "[t]hey don't steal money from the police"; (5) and "[t]hey don't take the buy funds and secretly hid them in a compartment only to be distrusted and discovered later on." RP (Feb. 22, 2006) at 54. None of these "facts" were in evidence; Officer Elliott, who described the CI's role and history, said nothing about his credibility or trustworthiness. The prosecutor's argument constituted misconduct because it sought to bolster the CI's and Elliott's credibility based on highly prejudicial "facts" that were not in evidence. C. CROSS-EXAMINATION ABOUT CI'S MOTIVES ¶24 Jones further argues that the prosecutor committed misconduct by asking Officer Elliott questions about why the CI did not testify at trial during the redirect examination. We agree that the prosecutor's questions were improper. ¶25 During its direct examination of Officer Elliott, the State did not ask any questions regarding why the CI did not testify at trial. But on cross-examination, Jones asked Elliott, "So [the CI] has actually dropped out of sight, hasn't he?" RP (Feb. 21, 2006) at 94. Elliott replied, "Yes." RP (Feb. 21, 2006) at 94. Jones then asked Elliott, "There's a warrant out for his arrest?" RP (Feb. 21, 2006) at 94. Elliott replied, "Yes, there is." RP (Feb. 21, 2006) at 94. The State did not object. ¶26 Following this exchange, on redirect examination, the State asked Officer Elliott about the last time he saw the CI and why he was unable to find him. Then the State asked Elliott, "The last time you saw him, did he appear excited about testifying?" RP (Feb. 21, 2006) at 95. Elliott replied, "He was very concerned and excited." RP (Feb. 21, 2006) at 95. Over Jones's objection, Elliott explained his answer, "He told me he was frightened." RP (Feb. 21, 2006) at 95. ¶28 A prosecutor's duty is not merely to zealously advocate for the State, but also to ensure the accused receives a fair trial. Huson, 73 Wn.2d at 663. A criminal defendant can "open the door" to testimony on a particular subject matter, but he does so under the rules of evidence. A defendant has no power to "open the door" to prosecutorial misconduct. We hold that the State's redirect examination was improper, but we decline to rule whether it alone requires reversal of Jones's conviction. D. SPECULATING ABOUT CI'S MOTIVATIONS ¶29 Jones further argues that the prosecutor committed misconduct during rebuttal closing argument because she made prejudicial statements and vouched for the credibility of the CI and Officer Elliott. Again, we agree. ¶30 Here, in his closing argument, Jones's counsel said: And when it comes time, what's the one piece of evidence you don't have here? You don't have [the CI] saying, yes, he handed me some drugs and he handed me some money. He apparently did something else wrong after this incident. Now there is a warrant out for his arrest. And that in itself is reason to doubt. RP (Feb. 22, 2006) at 47-48. And the prosecutor argued: Now where is [the CI]? There's lots of discussion of where is [the CI] today. You know, when you were sitting over there as prospective jurors, we had a discussion about what if an informant doesn't show up. Are there reasons for that? One issue came out that, well, [he] could be in the hospital. Another – I used juror 12 at the time and said, hey, you know, maybe he's not going to testify because his identity would be revealed. [DEFENSE COUNSEL]: Your Honor; I would ask that counsel not ask the jury to speculate as to matters that aren't in evidence. THE COURT: You may make your argument about this issue from the evidence. [PROSECUTOR]: Now, what do we know from the evidence? We know there is a reason why [the CI] isn't here. You heard Detective Elliott tell you all of the attempts he made of this 15-year relationship he's had with [the CI]. He knows [the CI]. He knows where he lives. He knows his family. He knows what he does. He knows [the CI] well. They started out as friends before he ever started helping the police catch drug dealers. Where is [the CI]? Why wouldn't [he] show up? We heard from Detective Elliott that [the CI] was frightened. We heard that he was afraid to appear. Why do we know he was afraid? Well, we heard from Detective Elliott that is the case they know each other well. In addition to that, this was only one drug deal. The first of a planned many, right? The first. Well, what does that tell you? You can infer from what you hear that [the CI] was afraid. Why would he be afraid? [DEFENSE COUNSEL]: Your Honor, I'm going to make the same request that we not ask the jury to speculate as to matters not in evidence. [PROSECUTOR]: It's a reasonable inference from the evidence. THE COURT: You may complete your argument. [PROSECUTOR]: So what do we infer from the evidence before us? We can infer that, well, we had one deal with [Jones], and that [the CI] was discovered. And why would he be frightened and not want to testify in this particular trial? Because he's afraid of [Jones]. Well, that makes sense now, doesn't it? Somebody who has a 15-year history of being around, and all of a sudden he's afraid to come and testify. Told you he got paid for a reason. It's because he placed his life in danger. This is not easy work. It's scary work. It's dangerous work. [Jones] gets his haircut at the barber shop where [the CI] works. That's how they know each other. Who else works there? [The CI's] family does, his dad, his mom. It's a family-owned shop. He has every reason to be afraid because his whole family has been discovered now. Ladies and gentlemen, put your thinking caps on – [DEFENSE COUNSEL]: Your Honor, I'm sorry, but I have to make the same objection. THE COURT: You do need to move on in your argument. [PROSECUTOR]: Use your common sense. RP (Feb. 22, 2006) at 54-57. E. INVITED ERROR AND OPENING THE DOOR DOCTRINES ¶32 On appeal, the State argues that Jones invited any of these errors when he opened the door to evidence and speculation about why the CI did not testify. But the State misconstrues the doctrines of opening the door and invited error. The doctrines are not synonymous and neither excuses the State's fair trial duties here. (1) a party who introduces evidence of questionable admissibility may open the door to rebuttal with evidence that would otherwise be inadmissible, and (2) a party who is the first to raise a particular subject at trial may open the door to evidence offered to explain, clarify, or contradict the party's evidence. KARL B. TEGLAND, 5 WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67 (5th ed. 2007). Because this "opening the door" doctrine pertains to the admissibility of evidence, it must give way to constitutional concerns such as the right to a fair trial. See State v. Frawley, 140 Wn. App. 713, 720, 167 P.3d 593 (2007) (ruling that constitutional concerns trump strict application of court rules); and see ER 402 (allowing trial court to rule that otherwise relevant evidence is admissible if admission would violate constitutional protections). Thus, even if Jones had "opened the door" to evidence or examination of a particular subject at trial, the prosecutor is not absolved of her ethical duty to ensure a fair trial by presenting only competent evidence on this subject. Officer Elliott's opinion and the CI's alleged heresay statement are not such evidence. F. PREJUDICE ¶36 Having found several instances of misconduct, we now must determine whether (1) Jones waived his right to object and (2) " 'there is a substantial likelihood the instances of misconduct affected the jury's verdict.' " Dhaliwal, 150 Wn.2d at 578 (quoting Pirtle, 127 Wn.2d at 672). 1. NOT WAIVED ¶37 We first hold that Jones did not waive his right to object to Officer Elliott's opinion testimony or the prosecution's arguments that were not supported by the record when he raised the subject of why the CI did not testify. We note that a prosecutor's misconduct is not grounds for reversal if the remarks " 'were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective.' " Weber, 2. SUBSTANTIAL LIKELIHOOD VERDICT WAS AFFECTED SUFFICIENCY OF THE EVIDENCE ¶39 Next Jones argues in his direct appeal and statement of additional grounds for relief (SAG) ¶41 Drawing all reasonable inferences from the evidence in favor of the State and interpreting all reasonable inferences from the evidence most strongly against Jones, we are satisfied that, from the evidence outlined above, a jury could find a reasonable doubt that Jones unlawfully delivered cocaine, a controlled substance. CI'S CREDIBILITY ¶42 In his SAG, Jones also claims that the CI was "intoxicated" during the drug buy. Before the drug buy, the CI stated, "Ah, got me sitting out here in the hot sun with a hangover." Ex. 8, at 4. Later, the CI complained, "Sweating all booze, I got to be. . . . I'm gonna jump in the river at the Valley." Ex. 8, at 7. Based on these statements, Jones essentially argues that the CI was not credible. ¶44 According, we reverse and remand for retrial. ARMSTRONG, J., concurs. HOUGHTON, C.J., concurs in the result.