State v. King

STATE OF WASHINGTON, Respondent, v. ANGELA ELIZABETH KING, a/k/a ANGELA ELIZABETH MENDOZA,a/k/a ANGELA ELIZABETH VARGAS, Appellant.

No. 34374-0-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

July 11, 2017

UNPUBLISHED OPINION

PENNELL, J. — Angela Elizabeth Mendoza¹ appeals her conviction for trafficking in stolen property in the first degree. She contends the prosecutor committed flagrant irremediable misconduct by misstating the law regarding the presumption of innocence during closing argument. Alternatively, she argues she received ineffective assistance of counsel when defense counsel failed to object to this misstatement. We affirm.

ANALYSIS

Ms. Mendoza was convicted of first degree trafficking in stolen property. The facts of Ms. Mendoza's case leading up to trial are irrelevant to the issue on appeal and need not be recounted. Instead, Ms. Mendoza's complaint rests on the following statement uttered by the prosecuting attorney during closing argument: "We've talked about the presumption of innocence. The defendant is presumed to be innocent at this point. That presumption remains here until you go to the jury room and deliberate on the case." 3 Verbatim Report of Proceedings (Mar. 24, 2016) at 118-19 (emphasis added). The defense raised no objection to this statement during trial. Nevertheless, Ms. Mendoza claims the prosecutor's comment requires reversal either under a theory of prosecutorial misconduct or ineffective assistance of counsel.

We agree with Ms. Mendoza that the prosecutor misstated the law. Our cases explain that the "presumption of innocence continues 'throughout the entire trial' and may be overcome, if at all, only during the jury's deliberations." State v. Venegas, 155 Wn. App. 507, 524, 228 P.3d 813 (2010) (quoting 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed. 2008)). By using the word "until," the prosecutor suggested the presumption of innocence ended the moment the jurors walked into the jury room. This was incorrect. State v. Reed, 168 Wn.App. 553, 578, 278 P.3d 203 (2012).

Although the prosecutor misspoke, reversal is unwarranted. When no objection is made to a prosecutor's misstatement of law during closing argument, we will not reverse unless the misstatement was so flagrant and misleading that it could not have been corrected by a curative instruction. Id. This is a classic example of an isolated misstatement that could easily have been corrected upon request. See id. at 579. We will not disturb a jury verdict under such circumstances.²

While defense counsel should have objected to the prosecutor's misstatement, Ms. Mendoza's ineffective assistance of counsel claim fails because she cannot establish prejudice. The prosecutor's remark was a very small part of his argument. It was neither repeated nor emphasized. Although, with the assistance of a transcript, we can parse the prosecutor's comment and discern error, there is no reason to think the prosecutor's momentary misstatement had an impact on the jury. The jury was properly instructed and told to disregard any statements by the attorneys that are not supported by the law. We presume the jury follows the court's instructions absent evidence to the contrary. State v.Lamar, 180 Wn.2d 576, 586, 327 P.3d 46 (2014). Ms. Mendoza has failed to show a basis for reversal.

CONCLUSION

Ms. Mendoza's conviction is affirmed. Her request to deny costs is granted.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

/s/_________

Pennell, J.

I CONCUR:

/s/_________

Korsmo, J. FEARING, C.J. (concurring) —

I concur in the majority's decision, but I write separately because of a vacuous state of the law regarding prosecutorial misconduct. Conflicting decisions and principles occupy this field of law. These variances offer the court different paths to follow, which paths lead to opposite ends. I fear that available opposing paths allow reviewing judges unlimited discretion in deciding the outcome of prosecutorial misconduct appeals such that our personal partialities influence the results of cases.

Typically in opinions we refer to the prosecution as the "State," but, in the context of purported prosecutorial misconduct, we shift our argot from the "State" to the "prosecutor," almost as if the prosecuting attorney strode outside his or her role as a State agent when engaging in claimed misconduct. To a layperson, the term "misconduct" denotes intentional and bad conduct. Nevertheless, in the context of "prosecutorial misconduct," the concept expands to simple and unintentional mistakes.

Angela Mendoza's trial prosecutor told the jury that:

We've talked about the presumption of innocence. The defendant is presumed to be innocent at this point. That presumption remains here until you go to the jury room and deliberate on the case.

Report of Proceedings (RP) at 118-19. The easy part of the appeal is concluding that theprosecutor engaged in misconduct not necessarily in the sense of deliberate delinquent behavior, but at least in the sense of committing error. The difficult part of the appeal is characterizing the nature and degree of the misconduct, and determining what, if any, prejudice Mendoza suffered. The grade of the prosecutorial misconduct and the extent of the prejudice control whether we reverse Mendoza's conviction.

Angela Mendoza's prosecutor perpetrated misconduct because the closing remarks eroded the presumption of innocence that does not end when the jury enters the jury room. The presumption continues while the jury deliberates and until the jury finds the evidence established guilt beyond a reasonable doubt. The presumption of innocence does not stop at the beginning of deliberations; rather, the presumption persists until the jury, after considering all the evidence and the instructions, becomes satisfied that the State proved the charged crime beyond a reasonable doubt. State v. Evans, 163 Wn. App. 635, 643, 260 P.3d 934 (2011). The presumption continues throughout the trial and may only be overcome, if at all, during deliberations. State v. Evans, 163 Wn. App. at 643; State v. Venegas, 155 Wn. App. 507, 524, 228 P.3d 813 (2010).

The presumption of innocence arises from the federal and state constitutions. The presumption of innocence, although not expressly enumerated in the Constitution, comprises a basic component of a fair trial under our system of criminal justice as protected by both the state and United States Constitutions. Estelle v. Williams, 425 U.S.501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). The presumption of innocence is the bedrock on which the criminal justice system stands. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008); State v. Bennett, 161 Wn.2d 303, 315, 165 P.3d 1241 (2007). Washington courts, as guardians of all constitutional protections, are vigilant to protect the presumption of innocence. State v. Warren, 165 Wn.2d at 26; State v. Bennett, 161 Wn.2d at 316.

A Washington statute confirms the constitutional dictate of a presumption of innocence. RCW 10.58.020 declares, in part:

Every person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt.

At least six Washington decisions directly or indirectly address a prosecutor's errant remark in diminishing the presumption of innocence. In State v. Warren, 165 Wn.2d 17, the prosecutor, in closing argument, told the jury that reasonable doubt does not mean giving the defendant the benefit of the doubt. The Warren court observed that the prosecutor committed misconduct. Although Warren's prosecutor's argument did not restate Angela Mendoza's prosecutor's words about the presumption of innocence ending when the jury retires to the jury room, the comments attacked the presumption of innocence.

In State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996), the prosecutingattorney commented, during summation, that to find the defendants not guilty of rape, the jury must either find that the victim lied or was confused. This court held that the prosecutor misstated the law and misrepresented the role of the jury and the burden of proof. The argument conflicted with the State's burden of proving each element of its case beyond a reasonable doubt. The need to establish each element beyond a reasonable doubt is a corollary to the presumption of innocence.

In State v. Johnson, 158 Wn. App. 677, 243 P.3d 936 (2010), the trial court instructed the jury that the State must prove all elements of the crime beyond a reasonable doubt. The prosecutor told the jury that, to acquit the defendant, the jury needed to find a reason for its doubt in the defendant's guilt and that the jury needed to disbelieve the defendant's testimony. The court held that the argument constituted misconduct since the argument subverted the defendant's presumption of innocence.

In State v. Venegas, the prosecutor argued, in closing, that the presumption of innocence "erodes each and every time you hear evidence that the defendant is guilty." 155 Wn. App. at 519. This court found this misstatement of the law to constitute prosecutorial misconduct.

In State v. Evans, the prosecutor, during closing, echoed the comments of Angela Mendoza's prosecutor. Evans' prosecutor informed the jury that presumptive innocence "kind of stops once you start deliberating." 163 Wn. App. at 643. This court held thecomment to be misconduct. The comment invited the jury to disregard the presumption of innocence once it began deliberating, a concept that diluted the State's burden of proof.

State v. Reed, 168 Wn. App. 553, 278 P.3d 203 (2012) restates the holding in State v. Evans. Reed's prosecutor engaged in misconduct by stating in rebuttal argument that the presumption of innocence "does last...