Dixon was convicted of bail jumping and meth possession. Its always bad when the state concedes that the evidence is insufficient for a charge of bail jumping, and that, sure, there was misconduct, but it didn't warrant a new trial. Since this is all about the testimony:
During closing argument, defense counsel noted that "[t]here is doubt" about her control over the purse because "[t]here was an unknown person in the car."
In rebuttal, the prosecutor stated:
I want to pose this question to you: Why didn't [Dixon] bring that passenger in to testify for her? She knew who he was. He was her friend, that's what Deputy Stewart said. Deputy Stewart said he didn't write this guy's name down because he didn't do anything wrong. He didn't need to write his name down. This passenger didn't commit a crime, the defendant did. And if that passenger had anything at all to say, don't you think [Dixon] would have contacted him? She knew who he was. He was in her car. She didn't call him. That passenger -- what they're suggesting is that passenger put the drugs in her purse, but there's no evidence of that whatsoever, whatsoever. As a matter of fact, Deputy Stewart said he didn't see that passenger put anything in her purse. Did the defendant make any statement that "he put that in my purse"' No. We didn't hear any of that testimony. There's nothing, absolutely nothing that indicates that that passenger had anything to do with this.
In case you missed it...I will put it up there again...this time with the misconduct in bold.
During closing argument, defense counsel noted that "[t]here is doubt" about her control over the purse because "[t]here was an unknown person in the car."
In rebuttal, the prosecutor stated:
I want to pose this question to you: Why didn't [Dixon] bring that passenger in to testify for her? She knew who he was. He was her friend, that's what Deputy Stewart said. Deputy Stewart said he didn't write this guy's name down because he didn't do anything wrong. He didn't need to write his name down. This passenger didn't commit a crime, the defendant did. And if that passenger had anything at all to say, don't you think [Dixon] would have contacted him? She knew who he was. He was in her car. She didn't call him. That passenger -- what they're suggesting is that passenger put the drugs in her purse, but there's no evidence of that whatsoever, whatsoever. As a matter of fact, Deputy Stewart said he didn't see that passenger put anything in her purse. Did the defendant make any statement that "he put that in my purse"' No. We didn't hear any of that testimony. There's nothing, absolutely nothing that indicates that that passenger had anything to do with this.
For the state to comment on a missing witness, the missing witness doctrine must apply and the state may only rely on the doctrine when, "it is clear the defendant was able to produce the witness and the defendant's testimony unequivocally implies the uncalled witness's ability to corroborate his theory of the case." State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114 (1990). The doctrine also requires:
First, the doctrine applies only if the potential testimony is material and not cumulative. Second, the doctrine applies only if the missing witness is particularly under the control of the defendant rather than being equally available to both parties. Third, the doctrine applies only if the witness's absence is not satisfactorily explained. . . . Finally, the doctrine may not be applied if it would infringe on a criminal defendant's right to silence or shift the burden of proof.
There were also two explanations (both plausible) as to why the witness was unavailable. The court also held that the state shifted the burden in suggesting Dixon had the burden of proving a defense rather than the state having the burden of supporting a conviction. It was improper because, while the Dixon argued that she hadn't had dominion of the purse where the meth was found, this only gave the prosecutor limited discretion to rebut. He could have simply said, there's no evidence that the passenger placed anything in her bag. He went above and beyond and it was prejudicial. As to the comment on silence, the state conceded it was improper, and the court, looking at the whole kit and kaboodle, determined there was no way to cure the prejudice.
Judge hunt, dissenting in part, would have found no prejudice.
Remanded for new trial.
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