                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           August 2, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 46616-3-II

                                Respondent,                    UNPUBLISHED OPINION

        v.

 JESSIE D. BRITAIN,

                                Appellant.

       BJORGEN, C.J. — Jessie Dean Britain appeals his conviction for attempting to elude

police and a sentencing enhancement for recklessly endangering others. He argues that the trial

court erred by (1) allowing improper opinion testimony, (2) admitting evidence of outstanding

warrants under ER 404(b), and (3) improperly instructing the jury regarding the verdict forms

and its duty to unanimously agree on the conduct supporting a guilty verdict. He also argues (4)

that his trial was tainted by prosecutorial misconduct because the State (a) elicited improper

opinion testimony and (b) misstated relevant law during closing argument, and (5) that he

received ineffective assistance of counsel because his attorney failed to object to (a) the opinion

testimony, (b) the testimony regarding his post-arrest silence, (c) the trial court’s improper jury
No. 46616-3-II


instruction, and (d) the prosecutor’s alleged misstatement of law. Finally, Britain argues that (6)

the cumulative effect of all these errors deprived him of a fair trial.

       We hold that (1) the witnesses did not improperly testify, (2) the trial court properly

admitted evidence of the warrants under ER 404(b), (3) the trial court did not commit prejudicial

instructional error, (4) Britain has not shown prejudicial misconduct by the prosecutor, (5)

Britain had not shown that his counsel was ineffective, and (6) Britain suffered no prejudice from

any accumulation of errors. Accordingly, we affirm Britain’s conviction and sentence.

                                               FACTS

       On May 10, 2014, two Pierce County Sheriff’s deputies, Chad Helligso and Chris Olson,

were on patrol in Tacoma. They encountered a pickup truck driven by Britain and noticed one of

its brake lights was out. They began to follow Britain, but Britain accelerated and traveled at

high speed down a residential street. The deputies turned on their lights and siren and followed

Britain. Britain abruptly turned onto another street, hitting the curb, and then drove down the

middle of the street. Britain slowed his truck to about five m.p.h., then jumped out of the truck

and took off running. Britain’s truck rolled until it hit a mailbox. RP at 87. The deputies exited

their car and followed Britain on foot, ultimately catching him and taking him into custody.

         The deputies saw a passenger, Ronnie Prim, trying to exit the truck through a window in

the canopy. Prim appeared to have been sitting in the back of the truck, where there were no

seats or security restraints. The deputies discovered an outstanding warrant for Prim’s arrest and

took him into custody.




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No. 46616-3-II


         The State charged Britain with attempting to elude a pursuing police vehicle, with a

special allegation for endangering others1; unlawful possession of a controlled substance—

methamphetamine; and first degree driving with a suspended or revoked license. Britain pled

guilty to the latter two charges, so the case proceeded to trial on the attempted eluding charge

alone.

         Before trial began, Britain moved to suppress evidence that he was the subject of

outstanding arrest warrants at the time of the incident. Britain argued that evidence of the

warrants was improper propensity evidence inadmissible under ER 404. The trial court analyzed

the merits of the argument on the record and ultimately ruled that evidence of the warrants would

be admissible as motive evidence, but that the State could not introduce evidence regarding the

crimes for which the warrants were issued.

         Both deputies testified at trial. Among the topics they covered were Britain’s manner of

driving and its potential for endangering a passenger; the charges the deputies recommended to

the prosecutor; and common signs that a driver is trying to elude a pursuing police vehicle.

When Britain’s attorney asked Deputy Helligso whether Britain was aware of the outstanding

arrest warrants, Deputy Helligso responded that Britain did not answer any questions.

         At the conclusion of trial, the State and Britain filed proposed jury instructions with the

court. The State’s included instructions for the second and third charges, to which Britain had

pled guilty and which were not tried to the jury. The trial court did not give the jury the State’s

proposed instructions specifically relating to the second and third charges, but did give an

instruction referring to three verdict forms. Neither the State nor Britain objected to the


1
    RCW 9.94A.834.

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No. 46616-3-II


instructions. However, before reading the erroneous instruction to the jury, the State alerted the

trial court to the error and the trial court distributed a manually corrected version of the jury

instruction.

       The prosecutor argued in closing that Britain had attempted to elude the deputies in order

to avoid arrest, and endangered Prim, an unsecured passenger, by driving recklessly and jumping

from the truck without parking it. Britain did not object to any part of the prosecutor’s closing

argument.

       The jury found Britain guilty of attempting to elude a pursuing police vehicle and also

found that during the attempt he had endangered a person other than himself and the pursuing

deputies. Britain appeals the resulting conviction and enhanced sentence.

                                            ANALYSIS

       Britain assigns error to several actions of the trial court, the State, and his defense

attorney, arguing primarily within the framework of prosecutorial misconduct and ineffective

assistance of counsel. We address the arguments regarding the trial court’s errors first, then

address the prosecutorial misconduct and ineffective assistance claims, which incorporate the

preceding analyses of the underlying errors.

                                   I. IMPROPER OPINION TESTIMONY

   Britain argues that the trial court erred by allowing law enforcement officers to give improper

opinion testimony. Britain failed to preserve this issue for review by objecting in the trial court.

However, because the issue affects other arguments not subject to waiver, we address the issue

and hold that the testimony was not improper.




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No. 46616-3-II


1.     Waiver

       Under RAP 2.5(a), a defendant generally may not raise an error for the first time on

appeal unless it is a manifest constitutional error. State v. Kirkman, 159 Wn.2d 918, 926, 155

P.3d 125 (2007). A trial court commits constitutional error by allowing improper opinion

testimony, but such an error is not manifest from the appellate record if the jury was properly

instructed that it alone must determine the facts and credibility of witnesses. State v.

Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008); Kirkman, 159 Wn.2d at 937. Here, the

jury was so instructed. Therefore, Britain waived his right to challenge Deputy Helligso’s

testimony by failing to object to that testimony.

2.     Merits

       We exercise our discretion to address Britain’s challenge on the merits, because its

resolution affects that of other issues. Britain argues that the trial court erred by allowing both

Deputy Helligso and Deputy Olson to give improper opinion testimony. We disagree.

       A lay witness may offer opinion testimony if helpful to the jury and not informed by

special expertise. ER 701. However, opinion testimony as to a criminal defendant’s guilt

“‘invades the exclusive province of the jury’” to decide the facts of the case. State v. Demery,

144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (quoting City of Seattle v. Heatley, 70 Wn. App. 573,

577, 854 P.2d 658 (1993)). To determine whether opinion testimony is impermissible, courts

consider five Demery factors: “‘(1) the type of witness involved, (2) the specific nature of the

testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before

the trier of fact.’” Montgomery, 163 Wn.2d at 591 (quoting Demery, 144 Wn.2d at 759).




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No. 46616-3-II


       a. Deputy Helligso’s testimony

       Britain points to two portions of Deputy Helligso’s testimony as conveying an improper

opinion to the jury. First, he argues that Deputy Helligso opined that Britain had endangered

Prim, and therefore that he was guilty of the charged aggravating condition. The exchange at

issue occurred during the State’s direct examination:

       Q.      And based off of what you observed of Mr. Britain’s driving, did you have
               any concerns in retrospect about any possible harm that could have been
               caused to Mr. Prim based off of Mr. Britain’s driving?

       A.      Yes. There was no seat whatsoever back there [in the back of the truck].
               The back end of the truck had a lot of garbage type stuff in it and there was
               no seatbelt in the back of the truck.

       Q.      And was there anything, specifically during your search, you testified to
               several instances where you had safety concerns, specific instances during
               the pursuit that possibly could have endangered Mr. Prim as a passenger?

       A.      Yes.

       Q.      And what were those?

       A.      The high-speed turns, could have been ejected out the side windows. The
               quick acceleration could have caused him to roll towards the back and come
               out the back end.

Report of Proceedings (RP) at 41-42 (emphasis added). In this exchange Deputy Helligso is

describing the various possible dangers Britain’s driving posed to Prim.

       As a law enforcement officer, Deputy Helligso’s testimony had “a special aura of

reliability.” Kirkman, 159 Wn.2d at 928. An opinion by the deputy that the conditions he

described in fact endangered Prim may have been improper opinion testimony as to Britain’s

guilt. See RCW 9.94A.834(2) (requiring a finding that “one or more persons other than the

defendant or the pursuing law enforcement officer were endangered [during] the commission of


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No. 46616-3-II


the crime.” (Emphasis added.) However, Deputy Helligso did not offer such an opinion.

Instead, he opined only that the conditions “possibly could have endangered” Prim, i.e., that the

conditions were dangerous to a person in Prim’s situation. RP at 41. This testimony constituted

the primary evidence of the dangerous conditions, directly challenging Britain’s defense denying

that Prim was in any real danger. Therefore, the bulk of the Demery factors weigh toward

admissibility. This testimony did not invade the province of the jury and was admissible.

       The second portion of Deputy Helligso’s testimony that Britain claims was improper

related to the underlying charge that Britain eluded police. During cross examination, Britain’s

attorney questioned Deputy Helligso about the charging recommendation he made to the

prosecutor, noting that he did not recommend a reckless driving charge. On redirect, Deputy

Helligso testified that he recommended in his police report that the prosecutor charge Britain

with “eluding police,” which he later clarified referred to “[f]elony elude.” RP at 56. As the

State notes, this was not truly opinion testimony; Deputy Helligso was merely describing his

charging recommendation. At no point did Deputy Helligso opine that he believed Britain was

in fact guilty of that charged crime. Therefore, Deputy Helligso did not offer improper opinion

testimony on the matter.

       b. Deputy Olson’s Testimony

       Britain argues that Deputy Olson also gave improper opinion testimony by describing the

conditions that would usually lead him to pursue a driver for eluding. During the State’s direct

examination, Deputy Olson offered the following testimony:




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No. 46616-3-II


       Q.      [W]hat are the conditions that might trigger something that starts out
               perhaps as a stop for a traffic infraction into a pursuit, for somebody eluding
               you?

       A.      When you activate your overhead lights and the vehicle doesn’t stop and
               then you activate your siren and the vehicle continues to go straightforward
               and not stop.

RP at 77. According to Britain, this constituted an opinion that he was guilty of attempting to

elude police because the conditions mirrored those of Britain’s case. However, Deputy Olson

merely described generally the conditions that would lead him to pursue a driver for eluding

police. He offered no opinion as to Britain’s guilt.

       Britain’s arguments regarding improper opinion testimony fail. The trial court did not err

in admitting the challenged testimony by Deputy Helligso or Deputy Olson.

                                     II. ER 404(B) VIOLATION

       Britain argues that the trial court violated ER 404(b) by allowing the deputies to testify

that Britain had warrants out for his arrest at the time they encountered him. The State argues

that this testimony was relevant to show Britain’s motive for attempting to elude police and that

the trial court properly allowed the testimony for that limited purpose. The State is correct.

       Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.” However, this

evidence may be admissible “for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). Before a

trial court admits evidence under ER 404(b), it must (1) find by a preponderance of the evidence

that the misconduct occurred, (2) identify the purpose for admitting the evidence, (3) determine

the relevance of the evidence to prove an element of the crime, and (4) weigh the probative value


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No. 46616-3-II


of the evidence against its prejudicial effect under ER 403. State v. Gunderson, 181 Wn.2d 916,

923, 337 P.3d 1090 (2014).

       We review the trial court’s decision for an abuse of discretion. State v. Fisher, 165

Wn.2d 727, 745, 202 P.3d 937 (2009). A trial court abuses its discretion when its decision is

manifestly unreasonable or based on untenable grounds. State v. Hassan, 184 Wn. App. 140,

151, 336 P.3d 99 (2014).

       Here, the trial court admitted evidence of the warrants on the condition that the evidence

not divulge the reasons for their issuance. The trial court justified this ruling by touching on

each of the necessary factors:

       [The proposed evidence] is evidence that there was an outstanding warrant. That,
       indeed, would be evidence relevant on the issue of why he would flee, and a motive
       for fleeing. That’s relevant evidence. It’s prejudicial. Any evidence is generally
       prejudicial, but its probative value outweighs any unfair prejudicial effect, and so
       evidence of the outstanding warrants are admissible.

RP at 73. The trial court recognized the undisputed fact that the warrants were outstanding at the

time of Britain’s flight, explained that evidence of the warrants was relevant to show Britain’s

motive for attempting to elude police and therefore admissible for that purpose, and weighed the

warrants’ probative value against their potential for undue prejudice.

       Britain argues that the trial court erred in finding that the warrants were sufficiently

probative, because the State was not required to prove Britain’s motive and presented no

evidence that Britain was aware of the warrants. However, the State was required to prove, inter

alia, that Britain willfully failed to stop when the pursuing deputies signaled him. RCW

46.61.024(1). Evidence that he had a motive to resist contact with police was highly probative of

Britain’s willfulness in failing to stop. Evidence of the warrants, even without further evidence


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No. 46616-3-II


that Britain was aware of them, allowed the jury reasonably to infer that Britain was afraid to

stop the vehicle because he believed he would be arrested for a reason unrelated to the traffic

stop.

        The trial court properly recognized that this high probative value outweighed the

potential for the evidence to unduly prejudice Britain. The potential prejudice from evidence of

the warrants lay in the inference that Britain had a propensity for lawlessness. However, the trial

court limited the potency of the inference by barring evidence of the underlying crimes. The

court's circumspect approach of allowing important evidence while confining any bias from it

was not, on these facts, an abuse of discretion.

                                         III. INSTRUCTIONAL ERROR

        Britain argues that the trial court erred by (1) giving jury instructions on charges to which

Britain had already pled guilty and (2) failing to give the jury a unanimity instruction. We

disagree.

1.      Instruction Referring to Counts Not Before the Jury

        Britain argues that the trial court erred by giving the jury instructions referring to charges

not before it. Jury instructions must allow counsel to argue their theory of the case and properly

inform the jury of the applicable law, and may not be misleading. State v. Aguirre, 168 Wn.2d

350, 363-64, 229 P.3d 669 (2010). However, even if an instruction is misleading, it is not

reversible error unless the complaining party shows that it was prejudicial. Id. at 364. Such a

nonconstitutional error is prejudicial only if “‘within reasonable probabilities, had the error not

occurred, the outcome of the trial would have been materially affected.’” State v. Barry, 183




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No. 46616-3-II


Wn.2d 297, 303, 352 P.3d 161 (2015) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d

951 (1986)).

       Here, the trial court did not give the jury the State’s proposed instructions specifically

relating to the charges not before it, but did give an instruction referring to three verdict forms

and asked the jury to complete each verdict form. The instructions thereby initially misled the

jury as to the number of verdict forms it would be required to complete and return. However, the

trial court recognized its mistake, apparently after counsel mentioned the problem, before

reading the instructions aloud to the jury. The trial court then corrected the erroneous instruction

by making manual edits to the printed text, under which the original text could still be seen, and

distributed corrected versions of the instruction. These edits made clear there was only one

verdict form, but showed the original errors referring to three forms underneath.

       Britain contends that the original instruction informed jurors about the additional charges

Britain faced. However, the instruction referred only to the number of verdict forms the jury was

to complete and did not refer to any additional charges or underlying crimes. The jury was

aware only that the trial court had given it an instruction containing a clerical error, which the

trial court had corrected. The jury could not have divined Britain’s other charges from the

original or corrected text. Nothing in the record suggests that the jury’s verdict was materially

affected by the error. With that, Britain cannot show that he was prejudiced by the error, and

reversal is not warranted.

2.     Unanimity Instruction

       Britain argues that the trial court erred by failing to instruct the jury that it must

unanimously agree on the conduct underlying Britain’s conviction and sentencing enhancement.


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No. 46616-3-II


We disagree. No such instruction was necessary, because Britain engaged in a continuing course

of conduct.

       Where the State alleges multiple acts that could lead to conviction, the jury may convict

only if it unanimously agrees on the particular conduct underlying the conviction. State v. Locke,

175 Wn. App. 779, 802, 307 P.3d 771 (2013), review denied, 179 Wn.2d 1021 (2014). In such a

case, the trial court must instruct the jury regarding this requirement. Id. However, where the

defendant’s course of conduct is continuing—“‘an ongoing enterprise with a single objective’”—

no such instruction is needed because the jury is not tasked with considering multiple acts. Id. at

803 (quoting State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996)). We review de novo

whether a unanimity instruction was necessary. State v. Boyd, 137 Wn. App. 910, 922, 155 P.3d

188 (2007).

       Britain’s conduct was an ongoing enterprise with a single objective. His actions were all

part of his attempt to elude pursuing law enforcement officers. In deciding whether to find the

sentencing enhancement, the jury was charged with finding whether one or more persons other

than Britain and the pursuing officers were endangered by that continuing course of conduct.

RCW 9.94A.834(2). They were not charged with identifying any particular endangered persons,

and the statute requires no such finding. Similarly, the statute requires no finding as to the

specific means of endangerment; the jury must only determine whether “the accused committed

the crime while endangering” somebody. RCW 9.94A.834(2). The jury was properly instructed

to decide whether Britain’s continuing course of conduct endangered “any person.” Clerk’s

Papers at 111. No specific unanimity instruction was necessary.




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No. 46616-3-II


                                IV. PROSECUTORIAL MISCONDUCT

       Britain argues that the State committed prosecutorial misconduct (1) by eliciting

improper opinion testimony from Deputy Helligso and Deputy Olson and (2) by misstating the

law in closing argument. We disagree.

       To prevail on a claim of prosecutorial misconduct, a defendant must show that in the

context of the record and all of the circumstances of the trial, the prosecutor’s conduct was both

improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). We

examine the prosecutor’s conduct and whether prejudice resulted therefrom by considering the

evidence presented, the context of the total argument, the issues in the case, the evidence

addressed in the argument, and the instructions given to the jury. State v. Monday, 171 Wn.2d

667, 675, 257 P.3d 551 (2011). Misconduct is prejudicial if there is a substantial likelihood it

affected the verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).

1.     Eliciting Improper Opinion Testimony

       Britain argues that the State committed prosecutorial misconduct by eliciting improper

opinion testimony from Deputy Helligso and Deputy Olson. We disagree.

       As discussed in section I supra, neither deputy gave improper opinion testimony. Britain

does not argue that the State’s particular manner of questioning constituted independent

misconduct, and points to no prejudicial effect apart from eliciting the testimony. Therefore, we

hold the State committed no misconduct on this basis.

2.     Misstatement of the Law

       Britain argues that the prosecutor prejudicially misstated the law during closing argument

by suggesting that the jury could find endangerment if it believed that Britain’s actions


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No. 46616-3-II


endangered unknown persons. We disagree. The prosecutor may not have misstated the law,

and regardless Britain has not established prejudice in light of his failure to object.

       In stating the relevant law to the jury, a prosecutor may not stray beyond the boundaries

of the jury’s instructions. State v. Walker, 164 Wn. App. 724, 736, 265 P.3d 191 (2011). A

prosecutor who misstates the law commits a “serious irregularity” with “grave potential to

mislead the jury.” Id.

       RCW 9.94A.834 provides:

       (1) The prosecuting attorney may file a special allegation of endangerment by
       eluding in every criminal case involving a charge of attempting to elude a police
       vehicle under RCW 46.61.024, when sufficient admissible evidence exists, to show
       that one or more persons other than the defendant or the pursuing law enforcement
       officer were threatened with physical injury or harm by the actions of the person
       committing the crime of attempting to elude a police vehicle.

       (2) In a criminal case in which there has been a special allegation, the state shall
       prove beyond a reasonable doubt that the accused committed the crime while
       endangering one or more persons other than the defendant or pursuing law
       enforcement officer. The court shall make a finding of fact of whether or not one
       or more persons other than the defendant or the pursuing law enforcement officer
       were endangered at the time of the commission of the crime, or if a jury trial is had,
       the jury shall, if it finds the defendant guilty, also find a special verdict as to whether
       or not one or more persons other than the defendant or the pursuing law
       enforcement officer were endangered during the commission of the crime.

It is clear from this language that the State must present evidence sufficient to prove to the jury

beyond a reasonable doubt that the driver’s actions threatened at least one person other than the

driver and pursuing law enforcement officers with physical injury or harm.

       According to Britain, the prosecutor’s closing argument improperly suggested that the

jury could find endangerment if it believed that Britain’s actions endangered unknown persons:

              As far as the Special Verdict Form, I submit to you that he did threaten
       Ronnie Prim, his physical security. If you jump out of a car while it’s rolling, you
       can hurt somebody. . . . You heard [the officers’] testimony, but I submit to you as

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No. 46616-3-II


       a general proposition, you jump out of a car while it’s moving, you threaten the
       safety of somebody. Might not have been Ronnie. It could have been somebody
       in the house, had that car rolled into a house. It’s a potential for harm. Jump out
       of a moving car, it’s dangerous, you are not only possibly going to injure yourself,
       but it’s other people in the county out on the road in their car.

RP at 136. Our courts have not decided whether such reliance on danger to unknown persons

misstates the requirements of RCW 9.94A.834.

       Whether or not the prosecutor’s argument misstated the law, Britain has not shown that

any misstatement sufficiently prejudiced him. Because he did not object to the prosecutor’s

argument he must show on appeal that the prosecutor’s conduct was not only improper, but so

flagrant and ill-intentioned that a curative instruction could not have cured it. Emery, 174 Wn.2d

760-61. The prosecutor’s comments were not inflammatory and did not present the potential for

incurable prejudice. See id. at 762-63. Any potential for prejudice resulting from prosecutor’s

argument would have been easily cured by an instruction from the court clarifying the relevant

law. Therefore, Britain has not shown flagrant and ill-intentioned misconduct sufficient to

overcome his failure to object.

                            V. INEFFECTIVE ASSISTANCE OF COUNSEL

       Britain contends that he received ineffective assistance of counsel because his attorney

(1) did not object to improper opinion testimony; (2) did not object to the prosecutor’s

misstatement of the law during closing argument, (3) did not object to jury instructions referring

to charges not at issue, and (4) elicited testimony concerning Britain’s post-arrest silence. We

disagree with each of these contentions and hold that Britain received effective assistance at trial.

       We review de novo a criminal defendant’s claim that he received ineffective assistance of

counsel. State v. Jones, 183 Wn.2d 327, 338, 352 P.3d 776 (2015). A defendant is entitled to


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No. 46616-3-II


effective representation as part of his constitutional right to counsel. State v. Grier, 171 Wn.2d

17, 32, 246 P.3d 1260 (2011), cert. denied, 135 S. Ct. 153 (2014). Representation is ineffective

if (1) counsel’s performance is deficient, and (2) the deficiency prejudiced the defense. Id.

(reaffirming Washington’s adoption of the test described in Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We presume that counsel’s performance

was not deficient and will hold otherwise only if that performance fell below an objective

standard of reasonableness. Grier, 171 Wn.2d at 33. Strategic or tactical actions are not

deficient as long as they are reasonable. Id. at 33. If the defendant can show that counsel’s

performance was deficient, he must then show prejudice by establishing a reasonable probability

that but for counsel’s deficient performance the outcome of the proceedings would have been

different. Id. at 34.

1.      Opinion Testimony

        Britain argues that his attorney provided ineffective assistance of counsel by failing to

object to the deputies’ allegedly improper opinion testimony. We disagree.

        Britain’s attorney’s decision not to object was not deficient. “The decision whether to

object is a classic example of trial tactics [that] only in egregious circumstances will . . .

constitute ineffective assistance of counsel.” State v. Kolesnik, 146 Wn. App. 790, 801, 192 P.3d

937 (2008). Moreover, “[w]here a claim of deficiency rests on counsel’s failure to make an

objection, a defendant must show that the objection would likely have been sustained to establish

prejudice.” State v. Brown, 159 Wn. App. 1, 17, 248 P.3d 518 (2010).

        As discussed in section I supra, neither deputy gave improper opinion testimony.

Therefore, the trial court likely would have overruled any objection to that testimony. Britain


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No. 46616-3-II


has not shown any other reason why his attorney’s decision not to object under these

circumstances was unreasonable, much less egregious. Therefore, Britain has not shown that his

attorney’s performance was deficient. We reject Britain’s claim that the decision not to object

rendered his representation ineffective.

2.        Misstatement of Law

          Britain argues that his attorney provided ineffective assistance of counsel by failing to

object when the prosecutor mischaracterized the law during closing argument. We disagree.

          Defense counsel’s failure to object during closing argument generally will not constitute

deficient performance unless the prosecutor made an “‘egregious misstatement[]’” to the jury. In

re Pers. Restraint of Cross, 180 Wn.2d 664, 721, 327 P.3d 660 (2014) (quoting In re Pers.

Restraint of Davis, 152 Wn.2d 671, 101 P.3d 1 (2004)). Yet even in cases of egregious

mischaracterization, a criminal defendant must show that the trial court likely would have

sustained an objection at the time of trial. See Brown, 159 Wn. App. at 17.

          Britain contends that his attorney should have objected to the prosecutor’s misstatement

of the law related to the special verdict form. However, as noted in section IV(2) above, it is

unsettled whether actual or potential endangerment is required under RCW 9.94A.834. More

importantly, Britain has not shown that the trial court would have agreed with the interpretation

he now proposes and sustained the objection. Nor has he shown that but for counsel’s failure to

object, the outcome of the proceedings would have been different, given the danger posed to

Prim. Therefore, Britain has not established that he was prejudiced by his attorney’s failure to

object.




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No. 46616-3-II


3.        Jury Instructions

          Britain argues that his attorney provided ineffective assistance of counsel by failing to

object to jury instructions referring to charges not put to the jury. We hold that Britain’s

attorney’s performance was deficient, but that the deficiency did not prejudice Britain.

Therefore, we reject Britain’s argument.

          The record shows that Britain’s attorney did not object to the erroneous jury instruction.

In general, determining whether a defense attorney performed deficiently by failing to object to a

jury instruction turns on whether that objection would have been successful. See, e.g., State v.

Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007). Such an objection will usually be

sustained if the instruction appears likely to mislead the jury. Id. Here, the trial court clearly

recognized that its instruction was issued in error and had the potential to mislead the jury.

Therefore, had Britain’s attorney objected to the instruction, the trial court would almost

certainly have sustained the objection. Britain’s attorney performed deficiently in failing to

object.

          However, Britain has not shown that this deficiency prejudiced him. As discussed in

section III(1) above, the original jury instruction only misled the jury regarding the number of

verdict forms it was charged with returning. The instruction did not mention or imply any

information about Britain’s other charges. Under the circumstances, the jury could glean little

beyond the existence of a clerical error, which the trial court promptly corrected. Nothing in the

record indicates that the jury’s decision was in any way affected by the correction or the original

issuance of the erroneous instruction. Britain has not shown that he suffered any prejudice.




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No. 46616-3-II


4.     Testimony Concerning Post-Arrest Silence

       Britain argues that his attorney provided ineffective assistance of counsel by failing to

fully investigate the facts of his case and by inadvertently eliciting commentary from Deputy

Helligso on Britain’s post-arrest silence. We disagree.

       The case law sets out the basic standard governing the duty to investigate:

       “To provide constitutionally adequate assistance, ‘counsel must, at a minimum, conduct a
       reasonable investigation enabling [counsel] to make informed decisions about how best
       to represent [the] client.’”

In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001) (alteration in original)

(emphasis omitted) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994)).

       The rules concerning comments on silence are also found in the case law. We generally

treat commentary on a criminal defendant’s failure to respond to post-arrest questioning as a

violation of that defendant’s constitutional right against self-incrimination. State v. Easter, 130

Wn.2d 228, 236, 922 P.2d 1285 (1996). “A comment on an accused’s silence occurs when used

to the State’s advantage either as substantive evidence of guilt or to suggest to the jury that the

silence was an admission of guilt.” State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).

However, a “mere reference” to the defendant’s silence does not amount to such a comment.

State v. Burke, 163 Wn.2d 204, 206, 181 P.3d 1 (2008).

       Britain posits that his attorney showed a lack of reasonable investigation by eliciting

commentary on Britain’s post-arrest silence during the following exchange on cross examination

of Deputy Helligso:

               Q.      [Y]ou said Mr. Britain had warrants. Do you know if Mr.
                       Britain was aware of those warrants?

               A.      He did not answer any questions, so I don’t know.

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No. 46616-3-II



               Q.      So he could have been unaware? It’s possible?

               A.      Anything’s possible, yeah.

RP at 99.

       Britain’s attorney’s questions were aimed at casting doubt as to Britain’s awareness of

the warrants, and therefore challenging their value as evidence of his motive for attempting to

elude police. This was a legitimate trial tactic, and it was reasonable under the circumstances

because the warrants were admitted only as evidence of Britain’s motive for attempting to elude

police. Considered in this context, there is no reason to believe that Britain’s attorney did not

know Britain had refused to answer questions. Because Britain points to no other evidence of

inadequate investigation, we hold that the record does not establish that Britain’s attorney failed

to reasonably investigate the case. Therefore, the questioning by Britain’s attorney demonstrated

no deficient performance.

       Accordingly, we reject Britain’s claim that he received ineffective assistance of counsel.

                                      VI. CUMULATIVE ERROR

       Britain argues that the cumulative effect of the various errors he assigns to the

proceedings below produced a fundamentally unfair trial. An accumulation of errors may

prejudice a criminal defendant, even if no single error is sufficiently prejudicial. See State v.

Venegas, 155 Wn. App. 507, 520, 228 P.2d 813 (2010). However, Britain has not established

prejudice resulting from any of the assigned errors. More to the point, Britain points to no

particular prejudicial effect produced by any accumulation of those errors; he simply offers the

conclusory statement that his trial “was riddled with errors.” Br. of Appellant at 42. Therefore,

we hold that he has shown no cumulative error sufficient to deprive him of a fair trial.

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No. 46616-3-II


                                         CONCLUSION

       Britain has not shown that the trial court erred, that the State committed prejudicial

misconduct in its prosecution of his case, or that his attorney provided constitutionally

ineffective assistance. Accordingly, we affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it

is so ordered.



                                                       BJORGEN, C.J.
 We concur:



MAXA, J.




SUTTON, J.




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