Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 65213-3
Title of Case: State Of Washinton, Respondent V. Antonio Ramos, Appellant
File Date: 10/17/2011
SOURCE OF APPEAL
Appeal from Whatcom County Superior Court
Docket No: 09-1-00903-4
Judgment or order under review
Date filed: 04/05/2010
Judge signing: Honorable Steven J Mura
Authored by Ann Schindler
Concurring: Mary Kay Becker
J. Robert Leach
COUNSEL OF RECORD
Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Seattle, WA, 98101
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Respondent(s)
Hilary A. Thomas
Whatcom County Prosecutors Office
311 Grand Ave Ste 201
Bellingham, WA, 98225-4038
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 65213-3-I
v. ) PUBLISHED OPINION
ANTONIO RAMOS, )
Appellant. ) FILED: October 17, 2011
Schindler, J. -- Antonio Ramos appeals his conviction of unlawful delivery of
cocaine. Ramos contends prosecutorial misconduct during cross examination and
closing argument violated his constitutional right to a fair trial. Because there is a
substantial likelihood that prosecutorial misconduct affected the jury's verdict, we
reverse and remand for a new trial.
Lance Tatum works as a paid informant for the Northwest Regional Drug Task
Force in Whatcom County (Task Force). Tatum receives $100 for each drug
transaction he arranges for the Task Force.
Tatum testified that he obtained the telephone number for Antonio Ramos
through a mutual friend. Tatum said that he called Ramos several times in order to
establish a relationship and they "talked about everything." At some point, Tatum
discussed purchasing cocaine with Ramos. Tatum testified that after Ramos agreed to
sell him a quarter of an ounce of cocaine for $400, he contacted Task Force Detective
On March 25, 2009, Tatum called Ramos to arrange a time and place to
purchase cocaine. Detective Slick listened to the call. Detective Slick testified that the
man Tatum called had a Hispanic accent and identified himself as "Tony." Tatum told
Tony that he had $400 and wanted to purchase a quarter of an ounce of cocaine. Tony
told Tatum to meet him at the house he was working on located on Noon Road. After
Detective Slick instructed Tatum that the meeting had to take place in the parking lot at
Sunset Square Shopping Center (Sunset Square), Tatum insisted on meeting Ramos in
the parking lot near Round Table Pizza at Sunset Square. There are approximately 40
different businesses and restaurants at Sunset Square, including Round Table Pizza,
the Cost Cutter grocery store, Rite Aid, and Kmart, as well as a movie theater and a
Detective Slick testified that before Tatum called Tony, the Task Force had
made arrangements for police surveillance and videotaping the drug transaction in the
parking lot near Round Table Pizza.
[Prosecutor:] At the time you had that conversation had you a site
planned for the control buy?
[Detective Slick:] Yes. We wanted to do it out there in the Cost Cutter,
Rite Aid, Round Table Pizza parking lot complex. It's
a good open parking lot and it's part of being a
control purchase, it's a location we picked so we can
Detective Slick also testified that the Task Force planned to use Tatum after March 25
to arrange additional drug transactions with Tony.
The plan was to further the case, do a second control purchase followed
by a third, possibly a fourth. Ultimately, after conducting a series of
control purchases, make either a probable cause arrest or establish
where he is residing and possibly do a search warrant if we could locate a
house or additional information.
At around noon on March 25, Tatum parked his green Ford Escort in the parking
lot near Round Table Pizza and the Cost Cutter grocery store. Twenty or 30 minutes
later, a man driving a blue van parked next to the Ford Escort. Detective Brent Hanger
videotaped Tatum getting into and out of the van. The police officers could not see the
facial features of the man inside the van. Tatum testified that he gave the man, he later
identified as Ramos, $400 in prerecorded cash for a quarter of an ounce of cocaine. A
couple of minutes later, Tatum got out of the van and drove to another location in the
Sunset Square complex to meet Detective Slick. Tatum gave Detective Slick the
cocaine he had purchased. Detective Slick paid Tatum $100.
Meanwhile, the police videotaped Ramos going into the Cost Cutter grocery
store. As Ramos was walking into the grocery store, he greeted a man and a woman
standing outside. Approximately 15 minutes later, Ramos came out of the grocery
store, got into the van, and drove away.
After March 25, Tatum was unable to contact Ramos. On July 31, the State
charged Ramos with one count of unlawful delivery of cocaine in violation of RCW
69.50.401(2)(A). Ramos entered a plea of not guilty.
Tatum, Detective Slick, and the other Task Force members who participated in
the controlled drug transaction at Sunset Square on March 25 testified at trial. Tatum
identified Ramos as the person who sold him cocaine on March 25. Tatum conceded
he had been previously convicted for theft.
The court admitted the videotapes into evidence and the State played the
videotapes for the jury. The first video clip shows Tatum getting into the van and
getting out of the van. The glare from the sun and a red truck block the view of the man
in the van. However, Detective Colin Bertrand testified that he recognized Ramos and
was certain that he was in the van with Tatum. The second video clip shows Ramos
walking out of the Cost Cutter grocery store and getting into the blue van. Officer
Hanger testified that he recognized the man and woman Ramos talked to outside the
grocery store from "an investigation."
Detective Slick testified that he did not determine who owned the blue van.
Detective Slick also conceded that the police did not investigate the cell number Tatum
used to call Ramos, or whether Ramos used prerecorded buy money to pay for the food
he purchased at the Cost Cutter grocery store.
Ramos testified. Ramos said that on March 25, he was working at a house
located on Noon Road. Ramos said that he had done stucco work for 30 years and
earns between $60,000 and $70,000 a year. Ramos admitted using drugs but denied
selling drugs to Tatum.
Ramos said that he made arrangements the day before to have his friend Dave
pick him up at the house on Noon Road and drive him to the Cost Cutter grocery store
at Sunset Square to get lunch. Ramos is Hispanic and approximately 50-years-old with
a beard and long, black hair. Ramos described Dave as approximately 32-years-old
with long, black hair and a beard.
Ramos testified that after Dave dropped him off at the Cost Cutter grocery store,
he went inside to buy lunch. Ramos said that when he returned, the van was in the
parking lot, Dave was not in the van, but the keys were in the ignition. Ramos assumed
Dave had gone to a nearby pub in Sunset Square. Ramos testified that he drove the
van to the pub to pick up Dave, and then Dave drove him back to work at the house on
During cross examination, the prosecutor asked Ramos how much money he
earned in 2008. In response, Ramos admitted that he was in prison in 2008 "for drugs"
and was jail in 2007 for possession of hydrocodone. Ramos also admitted meeting
Dave while incarcerated at the Whatcom County Jail. The prosecutor asked Ramos a
number of questions about the drug history of the man and the woman he talked to
outside the Cost Cutter grocery store. Over repeated objections, the prosecutor also
asked Ramos whether people who use drugs "sometimes sell drugs . . . to support their
At the beginning of closing argument, the prosecutor urged the jury to act on
behalf of the community and stop Ramos from continuing to sell cocaine at Sunset
Square. During closing, the defense argued that the police did not include key details
testified to at trial in the written reports, that the police did not investigate who owned
the van, and did not determine whether prerecorded buy money was used by Ramos to
purchase lunch at Cost Cutter. The jury found Ramos guilty of delivery of cocaine on
March 25. The court imposed a standard range sentence. As part of the judgment and
sentence, the court ordered Ramos to pay legal financial obligations of $5,550.1
Ramos argues prosecutorial misconduct during cross examination and in closing
argument denied him the right to a fair trial. A prosecutor owes a defendant a duty to
ensure the right to a fair trial is not violated. State v. Monday, 171 Wn.2d 667, 676,
297 P.3d 551 (2011). We review a claim of prosecutorial misconduct for abuse of
discretion. State v. Ish, 170 Wn.2d 189, 195, 241 P.3d 389 (2010).
To prevail on a claim of prosecutorial misconduct, Ramos must establish that the
conduct was both improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202
P.3d 937 (2009). Prosecutorial misconduct is prejudicial where there is a substantial
likelihood the improper conduct affected the jury's verdict. State v. Yates, 161 Wn.2d
714, 774, 168 P.3d 359 (2007).
Where the defense fails to object or to request a curative instruction, the error is
waived unless the conduct is " 'so flagrant and ill-intentioned that it evinces an enduring
and resulting prejudice' " that could not have been neutralized by a curative instruction
to the jury. Fisher, 165 Wn.2d at 747 (internal quotation marks omitted) (quoting State
v. Gregory, 158 Wn.2d 759, 858, 147 P.3d 1201 (2006)).
A prosecutor has wide latitude in closing argument to draw reasonable
inferences from the evidence and may freely comment on the credibility of the
witnesses based on the evidence. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d
1239 (1997). Improper remarks by the prosecutor are not grounds for reversal if invited
1 Because we reverse, we need not address whether the trial court erred by requiring Ramos to pay
legal financial obligations of $5,550.
or provoked by defense counsel "unless the remarks are not a pertinent reply or are so
prejudicial that a curative instruction would be ineffective." State v. Russell, 125 Wn.2d
24, 86, 882 P.2d 747 (1994).
Ramos contends that the prosecutor improperly asked him on cross examination
whether Tatum had a motive to lie. The State concedes some of the questions
improperly called for speculation, but argues that the question about whether Tatum
had a motive to lie was not improper.
It is prosecutorial misconduct to ask a witness whether another witness is lying.
State v. Wright, 76 Wn. App. 811, 821, 888 P.2d 1214 (1995); State v.
Casteneda -- Perez, 61 Wn. App. 354, 362 -- 63, 810 P.2d 74 (1991). Requiring a
defendant to testify about whether a witness is lying is prejudicial. Wright, 76 Wn. App.
at 822. However, a prosecutor does not commit misconduct by asking a witness
whether another witness was mistaken. Such questions "do not have the same
potential to prejudice the defendant or show him or her in a bad light." Wright, 76 Wn.
App. at 822.
The prosecutor asked Ramos if Tatum had any reason to dislike him. In
response, Ramos denied knowing Tatum. The prosecutor then asked Ramos if Tatum
had any reason "to make up anything untrue about you." Defense counsel objected to
the question as calling for speculation. The court sustained the objection. The
prosecutor then asked Ramos if he could "think of any reason [Tatum] might be making
up something untrue about you?" Defense counsel did not object.
The State cites State v. Graham, 59 Wn. App. 418, 798 P.2d 314 (1990) to
argue that the prosecutor did not commit misconduct by asking Ramos whether he
knew if Tatum "might be making up something untrue." In Graham, the trial court
allowed the prosecutor to ask the defendant whether he knew of any reason why the
complaining witness would lie. On appeal, we held that while the question was
improper, it was not flagrant and ill-intentioned misconduct and, if objected to, could
have been addressed with a curative instruction. Graham, 59 Wn. App. at 427, 429.
Likewise, asking Ramos whether Tatum had a motive to testify untruthfully was
improper but, standing alone, it was not so flagrant and ill-intentioned that an
instruction to the jury could not have cured any prejudice.2
Ramos also contends that the prosecutor committed misconduct by asking him
about the drug history of the man and the woman he spoke to before going into the
Cost Cutter grocery store. The prosecutor asked Ramos whether he knew Rachel
Lebec and Aaron Salsbury "from the drug world." Despite objections to this line of
questioning, the prosecutor continued to ask Ramos about the drug history of Lebec
Q Now, you met some people outside the Cost Cutter store which you
A No, I didn't meet anybody.
Q You didn't meet Rachel Lebec outside Cost Cutter as you walked in?
A I said hi to a couple people but I didn't know who they are.
Q You didn't know who they are?
A Not by name.
2 The prosecutor also asked Ramos why he was the only one seen near the van in a parking lot
"crawling with police officers." Contrary to the argument on appeal, the question does not ask Ramos to
comment on whether the police were lying. Ramos also argues that questions about his ethnicity and prior
convictions were improper. But Tatum and Detective Slick testified that "Tony" had a "Hispanic accent," and
Ramos testified that he earned $60,000 -- $70,000 each year. Ramos also admitted using but not selling drugs.
The questions about his income that he earned that elicited his admission as to prior drug convictions were not
Q Rachel Lebec was one of those persons?
A Yeah. I don't know her as Rachel.
Q Do you just know her from the drug world?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q (By [the prosecutor]) Did you recognize her from the drug world?
A I don't know. I don't know.
Q Do you know if Rachel Lebec has a serious drug problem?
A I have no idea.
[DEFENSE COUNSEL]: Objection, speculation.
THE COURT: Sustained.
Q (By [the prosecutor]) Do you know she's in drug court right now?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
Q (By [the prosecutor]) The other person was Aaron Salsbury; do you
recognize that name?
Q Do you know him from the drug world?
Q You know he has convictions?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Move that all those be stricken.
THE COURT: I will strike the last answer.
The State concedes that "it was error to attempt to cross examine Ramos about
his acquaintances' drug problems and convictions." However, the State asserts that
Ramos cannot establish prejudice. We accept the State's concession that the
prosecutor's questions about the drug history of Lebec and Salsbury were improper.
While, standing alone, Ramos may not be able to establish prejudice, when coupled
with the prosecutor's improper arguments in closing, we conclude there is a substantial
likelihood the misconduct affected the jury verdict.
Ramos asserts the prosecutor committed misconduct in closing argument by
improperly appealing to the passion and prejudice of the jury by arguing that he was a
part of the drug world, and that the jury should convict in order to protect the community
from drug dealing at Sunset Square. The State concedes the prosecutor impermissibly
argued that the jury should convict Ramos in order to eliminate the drug dealing at
Sunset Square. But the State asserts that Ramos cannot show prosecutorial
misconduct affected the jury verdict. We disagree.
At the very beginning of closing argument, the prosecutor asked the jury to convict
Ramos in order to prevent "the coke dealers" from engaging in "drug activity" at Sunset
Good afternoon, ladies and gentlemen. You now have all the evidence
that you're going to be receiving in this case. As I said in my opening
statement, this evidence shows that Antonio Ramos is guilty beyond a
reasonable doubt of the crime of delivery of a controlled substance and
I'm going to ask you to return that verdict based upon the evidence that
has been submitted.
Again, this crime occurred March 25th of 2009, shortly before noon at
the Sunset Square parking lot off of Sunset Drive, Bellingham, Whatcom
County, Washington. In the course of this trial you probably learned things
about drug activity in the community that you had no idea was going on. You
have actually seen videotape of drug activity in this community. Most of you
had no idea what is going on and probably wish you didn't know it was going
on. But the events that are depicted in the video you saw this morning of
March 25th of 2009 is why the detectives were out there at that parking lot on
that date to investigate drug crimes. This is also why we are here today, so
people can go out there and buy some groceries at the Cost Cutter or go to a
movie at the Sunset Square and not have to wade past the coke dealers in
the parking lot. That's why they were there, that's why you're here, and that's
why I'm here, to stop Mr. Ramos from continuing that line of activities. That's
what the case is about and that's what the truth of this case is about and
that's why this is a serious case.
In United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir. 1991), the court held
that a prosecutor engages in misconduct by arguing that the jury should convict in
order to protect the community, deter future law-breaking, or other reasons unrelated to
the charged crime.3
A prosecutor may not urge jurors to convict a criminal defendant in order
to protect community values, preserve civil order, or deter future
lawbreaking. The evil lurking in such prosecutorial appeals is that the
defendant will be convicted for reasons wholly irrelevant to his own guilt
or innocence. Jurors may be persuaded by such appeals to believe that,
by convicting a defendant, they will assist in the solution of some pressing
social problem. The amelioration of society's woes is far too heavy a
burden for the individual criminal defendant to bear.
Solivan, 937 F.2d at 1153 (internal quotation marks omitted).
In Solivan, the prosecutor argued:
What you're listening to is a wholesale distributor of narcotics, cocaine
discuss her business affairs and complain about her busy schedule, the
lack of good product and the trouble she's having getting this stuff up
here now. And I'd submit to you, folks, that she's been caught now. And
I'm asking you to tell her and all of the other drug dealers like
her -- (defense counsel's objection and Court's response omitted) -- [t]hat
we don't want that stuff in Northern Kentucky and that anybody who
brings that stuff in Northern Kentucky and . . . .
Solivan, 937 F.2d at 1148 (internal quotation marks and italics omitted) (alteration in
original). The court held that the defendant's constitutional right to a fair trial was
violated by the prosecutor's improper appeal "to the community conscience in the
context of the War on Drugs."
Here, defendant's constitutional right to a fair trial was violated because
the appeal to the community conscience in the context of the War on
Drugs prejudicially impacted on her. The fear surrounding the War on
Drugs undoubtedly influenced the jury by diverting its attention away from
its task to weigh the evidence and submit a reasoned decision finding
defendant guilty or innocent of the crimes with which she was charged.
The substance of the statements made by the prosecutor in this case
were designed, both in purpose and effect, to arouse passion and
prejudice and to inflame the jurors' emotions regarding the War on Drugs
by urging them to send a message and strike a blow to the drug problem.
3 In Perez-Mejia, we also held that "a prosecutor engages in misconduct when making an argument
that appeals to jurors' fear and repudiation of criminal groups." State v. Perez-Mejia, 134 Wn. App. 907, 916,
143 P.3d 838 (2006).
This nation faces a variety of social problems with which all
citizens are daily confronted. The drug problem is one of the most
compelling and devastating problems faced by this nation today. This
Court is acutely aware of the nature and extent of the drug problem.
However, government prosecutors are not at liberty to urge jurors to
convict defendants as blows to the drug problem faced by society or
specifically, within their communities, or to send messages to all drug
dealers. Such appeals are extremely prejudicial and harmful to the
constitutional right to a fair trial. It should be clear from the foregoing
discussion that, while not causing error per se unless the statements are
deemed to be calculated to
incite prejudice, prosecutors should exercise extreme caution when
making any statement referring to the community interests of jurors.
Solivan, 937 F.2d at 1153-54.
Although the trial court in Solivan instructed the jury to disregard the improper
argument, the court reversed because the "admonition to the jury did not neutralize the
prejudice resulting from such comments." Solivan, 937 F.2d at 1157.
The State relies on a case that distinguishes Solivan in an effort to argue Ramos
cannot establish prejudice. In United States v. Wettstain, 618 F.3d 577 (6th Cir. 2010),
the court held that the prosecutor's appeal to community conscience during closing
argument was not prejudicial because it was an isolated instance of misconduct, and
the evidence at trial showed that the defendants had sold drugs in the community for at
least ten years. Wettstain, 618 F.3d at 588-90. The court held that "an immediate,
strong, and proper curative instruction" was sufficient to prevent prejudice. Wettstain,
618 F.3d at 590.
Here, unlike in Wettstain, the prosecutor's argument was not based on the
evidence and was not isolated. Ramos was charged with one count of delivery of
cocaine. There was no evidence that Ramos was "continuing" to engage in drug
activity or drug dealing at Sunset Square. To the contrary, the evidence established
that the Task Force insisted that the drug transaction Tatum arranged with Tony take
place at Sunset Square. Rather than an isolated instance of misconduct, the
prosecutor's improper comments were made at the beginning of closing argument as a
prism through which the jury should view the evidence. The prosecutor argued that
"the case is about" preventing Ramos from continuing to engage in drug dealing at
Sunset Square "so people can go out there and buy some groceries at the Cost Cutter
or go to a movie at the Sunset Square and not have to wade past the coke dealers in
the parking lot." As in Solivan, we conclude that an instruction could not have cured
the prejudicial effect of the prosecutor's improper and intentional appeal to convict
Ramos based on an irrelevant and prejudicial argument.
We also conclude the prosecutor improperly argued that because Ramos knew
Lebec and Salsbury, he was part of the "drug world" and drug business. The
Mr. Ramos acknowledges that he ran into two people on the way to the
store. He wouldn't say their names but Detective Hanger knows who they
are. He knows that they were Rachel Lebec and Aaron Salsbury, two
people that he had opened investigations upon and he recognized them
and knew exactly who they were.
Contrary to the prosecutor's argument, the testimony did not establish that Lebec and
Salsbury were the targets of a drug task force investigation. While a prosecutor has
"some latitude to argue facts and inferences from the evidence," a prosecutor is not
"permitted to make prejudicial statements unsupported by the record." State v. Jones,
144 Wn. App. 284, 293, 183 P.3d 307 (2008) (citing State v. Weber, 159 Wn.2d 252,
276, 149 P.3d 646 (2006)); see also Miller v. Pate, 386 U.S. 1, 6-7, 87 S. Ct. 785, 17 L.
Ed. 2d 690 (1967) (holding that a prosecutor commits misconduct by misrepresenting
the facts in the record).4
4 Ramos also contends that the prosecutor committed misconduct during rebuttal argument by
vouching for the credibility of the police officers. The State argues that the argument was a permissible
response to the defense closing argument. Wedisagree. It is misconduct for a prosecutor to vouch for a
witness by expressing his or her personal belief as to the truthfulness of a witness. Ish, 170 Wn.2d at 196. "
'It is misconduct for a prosecutor to state a personal belief as to the credibility of a witness.' " Ish, 170 Wn.2d at
196 (quoting State v. Warren, 165 Wn.2d 17, 30, 195 P.3d 940 (2008)). The prosecutor argued that "the truth
of the matter is [the police witnesses] were just telling you what they saw and they are not being anything less
than 100 percent candid." While Ramos timely objected, the trial court overruled the objection. Weconclude
Although the evidence against Ramos was strong, we hold there is a substantial
likelihood that prosecutorial misconduct on cross examination and in closing argument
impermissibly affected the jury's verdict. We reverse Ramos's conviction for unlawful
delivery of a controlled substance and remand for a new trial.
the prosecutor improperly vouched for the credibility of the police witnesses.