      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                      )         No. 77068-3-I

             Respondent,                      )         DIVISION ONE

             v.                               )         UNPUBLISHED OPINION

ERIKJON CARTER,                               )
                                              )
            Appellant.                        )
                                              )         FILED: March 18, 2019
       HAZELRIGG-HERNANDEZ, J.     —   A jury convicted Erik Carter of assault in the

second degree. Carter seeks reversal, arguing that prosecutorial misconduct and

ineffective assistance of counsel denied him his constitutional right to a fair trial.

Because Carter cannot show that the prosecutor’s argument was improper or that

defense counsel’s performance was deficient, we affirm.

                                       FACTS

       On October20, 2016, Sam Harris, Erik Carter, and Carter’s fiancée, Jessica

Bush, attended a meeting of their local iron workers union at the Labor Temple in

Seattle. After the meeting, a fight broke out involving several union members,

including Harris. A surveillance camera across the street recorded much of the

fight and subsequent events. Carter was not initially involved in the fight. Bush

was verbally involved, attempting to ‘referee” the participants and urging them to

fight one-on-one, rather than as a group. At one point when Harris had stepped
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away from the fight, he and Bush exchanged heated words. Carter then lunged

forward and punched Harris in the face, causing him to fall backward. Carter

testified that he acted to protect Bush because he believed that Harris was about

to push or strike her. The surveillance video showed that Harris was leaning his

left arm against a concrete pillar and resting his right arm on his hip. As Harris fell,

he struck the concrete pillar and then the ground. Harris sustained a skull fracture

and severe traumatic brain injury.

       Carter was charged with assault in the second degree. The State further

charged that the injury to the victim substantially exceeded the level of bodily harm

necessary to satisfy the elements of the crime. At trial, the jury received an

instruction that the lawyers’ statements are not evidence.             During closing

argument, the prosecutor told the jury that although the defendant was presumed

innocent, he was “not to be presumed truthful” as a testifying witness.             The

prosecutor encouraged the jury to assess his bias and motivation like any other

witness. The prosecutor stated that “Carter’s motivation is for you not to convict

him.   He is the most biased witness that you heard from.” Defense counsel

objected to this statement as improper argument and the court sustained the

objection. The defense counsel did not request that the statement be stricken from

the record. Therefore, the prosecutor’s statement remained. The State reminded

the jury at the beginning of its rebuttal argument that nothing the attorneys say is

evidence. The jury returned a verdict of guilty as charged and found that the

victim’s injuries substantially exceeded the level of bodily harm necessary to meet



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the elements of the crime. The court imposed an exceptional sentence of a term

of confinement of 24 months due to the presence of the aggravating circumstance.

                                   DISCUSSION

        Carter argues that the State committed prosecutorial misconduct during

closing argument that infringed upon his constitutional rights to testify in his own

defense and receive a fair trial. Additionally, Carter next argues that he was denied

his constitutional right to effective representation because defense counsel failed

to ensure that the statement was stricken from the record. Because Carter cannot

show improper argument or deficient performance, we affirm.

   I.   Prosecutorial Misconduct

        Carter argues that the prosecutor’s statement regarding the defendant’s

bias and motivation as a witness unconstitutionally penalized the defendant for

exercising his right to testify in his own defense.         The Washington State

Constitution guarantees criminal defendants the right to appear and defend in

person and the right to testify on their own behalf. Wash. Const. art. I,   § 22. A
defendant who chooses to testify at trial puts his credibility at issue by doing so.

See State v. Easter, 130 Wn.2d 228, 237, 922 P.2d 1285 (1996). The State may

not draw adverse inferences from the exercise of a constitutional right or take

action which will unnecessarily chill or penalize the assertion of a constitutional

right. State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984).

        Here, Carter asserts that his constitutional rights were infringed because

the prosecutor attacked the credibility of his trial testimony based solely on his

status as the defendant rather than the evidence produced at trial. However, the

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State more properly frames the applicable constitutional issue whether the

prosecutor argued that Carter was not credible because he had exercised his right

to testify on his own behalf. Had the defendant not elected to testify, his credibility

as a witness would not have been at issue. The prosecutor did not argue that the

defendant’s testimony was unreliable because he chose to testify in his own

defense, but rather that Carter had a greater interest in the outcome of the case

than any of the other witnesses.        The prosecutor’s comparative language—

“[Carter] is the most biased witness that you heard from”—does not necessarily

suggest that the defendant is the most biased witness in every case. However, a

testifying defendant does have an interest in avoiding conviction. This is a factor

that the jury may properly consider when assessing the credibility of the defendant

as a witness.     Accordingly, the State did not infringe upon Carter’s right to

participate in his own defense.

       Carter contends that the prosecutor’s remark constituted misconduct and

denied him a fair trial. As quasi-judicial officers, prosecutors have a duty to act

impartially in the interest of justice. State v. Reed, 102 Wn.2d 140, 147, 684 P.2d

699 (1984). When a defendant claims that prosecutorial misconduct occurred, the

burden rests on the defendant to show that the prosecutor’s conduct was both

improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937

(2009). The reviewing court is not required to reverse if the prejudicial effect of the

allegedly improper conduct could have been remedied by a curative instruction

which the defense failed to request. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d

747 (1994). When defense counsel fails to make an adequate timely objection

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and request a curative instruction, the issue of misconduct is waived unless any

improper remark was so flagrant and ill-intentioned that the resulting prejudice

could not have been cured by an instruction. State v. Gentry, 125 Wn.2d 570, 640,

888 P.2d 1105 (1995).

          We first consider whether the comment is in fact improper.     Reed, 102

Wn.2d at 145. In closing argument, prosecutors are allowed to draw reasonable

inferences from the evidence and have wide latitude in making arguments to the

jury. Fisher, 165 Wn.2d at 747.       It is improper for prosecutors to assert their

personal belief as to the credibility of a witness.     Reed, 102 Wn.2d at 145.

However, prosecutors may comment on the truthfulness of a witness as long as

the comment does not express a personal opinion or argue facts beyond the

record. State v. Smith, 104 Wn.2d 497, 510—11, 707 P.2d 1306 (1985). Prejudicial

error does not occur until it is clear and unmistakable that counsel is expressing a

personal opinion rather than arguing an inference from the evidence. State v.

Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). Alleged improper

comments, are reviewed in the context of the entire argument. Fisher, 165 Wn.2d

at 747.

          Here, the prosecutor argued that Carter’s testimony was inconsistent with

his own prior statements, the testimony of eyewitnesses, and the surveillance

video. The prosecutor urged the jury to assess the defendant’s credibility as a

witness in the same way that they would any other witness, taking into

consideration any bias or personal interest in the outcome of the case that the

witness may have. Much of this language was taken directly from the first jury

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instruction, which the jurors had already heard. The prosecutor then argued that

Carter’s relative bias was greater than any of the other testifying witnesses. In the

context of the argument, this comment on Carter’s credibility appears to have been

a reasonable inference based on the evidence rather than an assertion of the

prosecutor’s personal belief. Because this comment was not improper, Carter’s

prosecutorial misconduct claim fails.

   II. Ineffective Assistance of Counsel

       Carter contends that his trial counsel was ineffective due to the failure to

ensure that the challenged statement was stricken after the objection was

sustained. Because the prosecutor’s remark was not an improper statement of

personal opinion on the credibility of a witness, no reasonably prudent attorney

would have requested that the trial court strike it from the record. Therefore, his

ineffective assistance of counsel claim fails.

       We affirm.




WE CONCUR:




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