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    i                                                                   FILED

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                                                                     JULY 11, 2017
                                                              In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division III


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    ]




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                     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                        DIVISION THREE
!
l
]        STATE OF WASHINGTON,                           )
                                                        )
                                                                    No. 34374-0-111
I
j
j                             Respondent,               )
i                                                       )
                v.                                      )
1                                                       )           UNPUBLISHED OPINION
1l       ANGELA ELIZABETH KING,                         )
l        a/k/a ANGELA ELIZABETH MENDOZA,                )
1        a/k/a ANGELA ELIZABETH VARGAS,                 )
i                                                       )
l                             Appellant.                )
J
1I              PENNELL, J. -Angela Elizabeth Mendoza 1 appeals her conviction for trafficking

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         in stolen property in the first degree. She contends the prosecutor committed flagrant



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         irremediable misconduct by misstating the law regarding the presumption of innocence

         during closing argument. Alternatively, she argues she received ineffective assistance of

l        counsel when defense counsel failed to object to this misstatement. We affirm.
I
j
l               1
                  The appellant is identified by several surnames in the record on appeal. For
l        clarity and consistency, we refer to her by the one utilized throughout trial: Mendoza.

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1
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    No. 34374-0-III
    State v. Mendoza
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!                                          ANALYSIS
l
f          Ms. Mendoza was convicted of first degree trafficking in stolen property. The facts
I

I   of Ms. Mendoza's case leading up to trial are irrelevant to the issue on appeal and need
1
I   not be recounted. Instead, Ms. Mendoza's complaint rests on the following statement


I
1
    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


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    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
1
J
J   defense raised no objection to this statement during trial. Nevertheless, Ms. Mendoza
I
    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.



                                                 2
I
1
l    No. 34374-0-III
     State v. Mendoza


     App. 553, 578, 278 P.3d 203 (2012).
~
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i           Although the prosecutor misspoke, reversal is unwarranted. When no objection is
i
i    made to a prosecutor's misstatement of law during closing argument, we will not reverse

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     unless the misstatement was so flagrant and misleading that it could not have been


lj
}
     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

I    not disturb a jury verdict under such circumstances. 2
I
1           While defense counsel should have objected to the prosecutor's misstatement, Ms.

l1   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.




            2
             State v. Evans, 163 Wn. App. 635, 648, 260 P.3d 934 (2011); State v. Johnson,
     158 Wn. App. 677,243 P.3d 936 (2010); Venegas, 155 Wn. App. at 525; and State v.
     Fleming, 83 Wn. App. 209, 213-16, 921 P.2d 1076 (1996) all involved multiple
     misstatements of law.

                                                  3
No. 34374-0-III
State v. Mendoza


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.




I CONCUR:




                                            4
                                      No. 34374-0-111

       FEARING, C.J. (concurring)- I concur in the majority's decision, but !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 the
No. 34374-0-III
State v. Mendoza (concurring)


prosecutor 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.
                                             2
No. 34374-0-111
State v. Mendoza (concurring)


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

mnocence. 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

mnocence.

      In State v. Fleming, 83 Wn. App. 209,921 P.2d 1076 (1996), the prosecuting
                                             3
No. 34374-0-III
State v. Mendoza (concurring)


attorney 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."

15 5 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 the
                                             4
No. 34374-0-III
State v. Mendoza (concurring)


comment 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 all the way until you walk into that [jury] room

and start deliberating." State v. Reed, 168 Wn. App. at 578 (alteration in original). This

court characterized the prosecutor's statement regarding the presumption of innocence as

an incorrect statement of the law. Rather than dissipating at the beginning of

deliberations, the presumption of innocence continues .throughout the entire trial and may

be overcome, if at all, during the jury's deliberations.

         The State argues that the trial prosecutor did not misstate the law. The State

contends that the prosecuting attorney meant that the presumption of innocence ends after

the jury renders a final verdict at the end of deliberations. Nevertheless, the State's

interpretation skews the ordinary meaning of the words uttered by the prosecuting

attorney. The prosecutor commented: "That presumption remains here until you go to the

jury room and deliberate on the case." RP at 119. The jury goes to the jury room at the

commencement of deliberations, and the presumption of innocence endures after

deliberations begin. The word "deliberate" does not entail the vote to convict after jury
                                               5
No. 34374-0-III
State v. Mendoza (concurring)


discussion. The word means: "to think about or discuss issues and decisions carefully.

• The jury deliberated for several days before reaching a verdict." MERRIAM-WEBSTER

ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/deliberate (last

visited July 3, 2017). The jury thinks about and discusses issues as much at the

beginning of deliberations as at the end of deliberations. If the jury deliberated for days,

as in the example given by the dictionary, the jury engaged in deliberations not only

immediately before its final vote but also on the first day and during the first hour.

Angela Mendoza's prosecutor echoed the comments made by the prosecutors in State v.

Evans and State v. Reed.

       Since we hold that Angela Mendoza's prosecuting attorney committed

prosecutorial misconduct, we must next measure the extent of the misconduct.

Mendoza's trial counsel failed to object to the misleading comments of the prosecutor

concerning the presumption of innocence. Different rules reign concerning the nature of

the misconduct the appellant must show to gain a new trial depending on whether defense

counsel objected at trial.

       The law encourages a party to raise objections at trial rather than for the first time

on appeal. Despite this policy, one might argue that a defendant should be entitled to one

free trial, even without an objection, when the prosecuting attorney misstates the law.

The prosecutor should know the law, and the defendant should not undergo the
                                              6
No. 34374-0-111
State v. Mendoza (concurring)


embarrassment of objecting before a jury to correct the prosecutor's mistake of the law.

Vindication of an accused's rights should not depend on the skills of her lawyer and

whether her lawyer timely objected to errors by the prosecuting attorney. According to

one Supreme Court decision, the failure to object should and will not prevent a reviewing

court from protecting a defendant's constitutional right to a fair trial. State v. Walker,

182 Wn.2d 463,477,341 P.3d 976, cert denied, 135 S. Ct. 2844, 192 L. Ed. 2d 876

(2015). The State, by its misconduct, bears the blame for any retrial despite the lack of

an objection. Unless the courts impose a prophylactic rule that always reverses a

conviction upon prosecutorial misconduct, a prosecuting attorney could knowingly

continue to misstate the law with the expectation that a reviewing court will find no

prejudice and affirm a verdict of guilt at least as long as he or she misstates the law only

once.

        Alas, the law consistently places a burden of objection on the criminal defendant

with few exceptions. Counsel may not remain silent, speculating on a favorable verdict,

and then, when it is adverse, use the claimed misconduct as a life preserver on a motion

for new trial or on appeal. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994); State

v. Reed, 168 Wn. App. at 577-78 (2012). Proper and timely objections provide the trial

court an opportunity to correct the prosecutorial misconduct and caution jurors to

disregard it. State v. Walker, 182 Wn.2d at 477. Timely objections prevent abuse of the
                                              7
No. 34374-0-III
State v. Mendoza (concurring)


appellate process and save the substantial time and expense of a new trial. State v.

Emery, 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012).

       To prevail on appeal on a claim of prosecutorial misconduct when the defense

objected below, a defendant must show first that the prosecutor's comments were

improper and second that the comments were prejudicial. State v. Warren, 165 Wn.2d

17, 26 (2008); State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007); State v. Russell,

125 Wn.2d at 85. If defense counsel fails to object to the misconduct at trial, the

defendant on appeal must show more than a misstatement of the law and some prejudice.

We consider the claim of prosecutorial misconduct waived on appeal unless the

misconduct is so flagrant and ill-intentioned that it evinces an enduring prejudice the trial

court could not have cured by an instruction. State v. Gregory, 158 Wn.2d 759, 841, 147

P.3d 1201(2006), overruled on other grounds by, Sate v. WR., 181 Wn.2d 757,336 P.3d

1134 (2014); State v. Evans, 163 Wn. App. at 642-43 (2011).

       Because of Angela Mendoza's attorney's failure to object to the prosecutor's

eroding of the presumption of innocence, this appeal tasks us with determining whether

the prosecuting attorney's misconduct was flagrant and ill-intentioned and whether

Mendoza suffered enduring prejudice. I question our ability to do so.

       When defense counsel failed to object to prosecutorial misconduct, this court must

find the prosecuting attorney to be ill-intentioned in order to grant the defendant relief.
                                              8
No. 34374-0-111
State v. Mendoza (concurring)


"Ill-intention" means having malicious intentions. DICTIONARY.COM,

http://www.dictionary.com/browse/ill-intentioned (last visited July 3, 2017). A

prosecutor will likely never concede to malevolent intent. Thus, a reviewing court enters

a quagmire when attempting to discern the intentions of a prosecuting attorney.

       The misconduct of the prosecutor must also be flagrant. "Flagrant" is something

considered "wrong or immoral[,] conspicuously or obviously offensive." OXFORD

ENGLISH DICTIONARY ONLINE, https://en.oxforddictionaries.com/definition/flagrant (last

visited July 3, 2017). Characterizing a prosecuting attorney's conduct as flagrant also is

problematic. I am generally able to assess a flagrant foul in professional basketball and

may even be able to distinguish between a flagrant one and flagrant two foul. I possess

this ability because I can see the player's conduct. Nevertheless, as an appellate judge, I

am unable to hear the prosecutor's intonation and view the prosecuting attorney's

mannerisms and do not necessarily comprehend the entire context of the misconduct. I

was not courtside.

      Reviewing courts wish not to impugn any attorney with a ruling that the attorney

engaged in flagrant, malicious behavior. This reluctance particularly extends to a

prosecuting attorney who is a representative of the State of Washington and either an

elected official or the deputy of an elected official. Assessing whether prosecutorial

misconduct is flagrant and ill-intentioned imposes an embarrassing and difficult duty on a
                                             9
No. 34374-0-III
State v. Mendoza (concurring)


reviewing court. For this and other reasons, courts may shy from assessing prosecutorial

misconduct as flagrant. Such an assessment may depend on the predilection of individual

judges rather than being based on the rule of law, and the outcome of the appeal could

vary from panel to panel.

       Despite the ill-intentioned standard, our Supreme Court directed us not to delve

into the mind of the prosecutor. The Supreme Court has written twice that we should not

focus on the prosecutor's subjective intent in committing misconduct, but instead on

whether the defendant received a fair trial in light of the prejudice caused by the violation

of existing prosecutorial standards and whether that prejudice could have been cured with

a timely objection. State v. Walker, 182 Wn.2d at 478 (2015); State v. Emery, 174 Wn.2d

at 762 (2012). This principle conflicts with the common understanding of ill-intention

being subjective in nature. Intentions are always subjective.

       The law affords a reviewing court few guidelines and standards for determining

either the subjective or objective intentions of the prosecuting attorney. Nevertheless, at

least two Washington courts have noted one factor to consider when determining if

improper prosecutorial arguments were flagrant and ill-intentioned. An argument should

be so characterized when a Washington court previously recognized those same

arguments as improper in a published opinion. State v. Johnson, 158 Wn. App. at 685

(201 O); State v. Fleming, 83 Wn. App. 213-14 ( 1996). In State v. Fleming, the
                                             10
No. 34374-0-III
State v. Mendoza (concurring)


prosecuting attorney told the jury that to acquit the defendants of rape the jury must find

that the victim lied or was confused. This court held the misconduct to be flagrant

because the prosecutor uttered the argument two years after an opinion proscribing the

argument.

       We do not know the intentions of Angela Mendoza's trial prosecuting attorney.

We do not know if Mendoza's trial prosecutor knew he misstated the presumption of

innocence. Nevertheless, ifwe follow Johnson and Fleming, we would need to hold

Mendoza's prosecutor to have engaged in flagrant and ill-intentioned conduct. Numerous

decisions before the date of trial held that a prosecuting attorney should not tell a jury that

the presumption of innocence ends when the jury enters the deliberation room. Any

prosecutor should know not to render any comment that hints at ending the presumption

when the jury goes "to the jury room and deliberate[ s] on the case." RP at 118-19. This

court, however, chooses not to follow the path of Johnson and Fleming.

       In State v. Warren, the Washington high court highlighted the error of a prosecutor

demeaning the presumption of innocence. The court wrote:

              The jury knows that the prosecutor is an officer of the State. It is,
       therefore, particularly grievous that this officer would so mislead the jury
       regarding the bedrock principle of the presumption of innocence, the
       foundation of our criminal justice system.




                                              11
    No. 34374-0-III
    State v. Mendoza (concurring)


    165 Wn.2d at 27. Based on this Supreme Court passage, a reviewing court could

    determine any erosion of the presumption of innocence to be flagrant and ill-intentioned.

    In this appeal, this court chooses not to follow the path of Warren.

           Remember that, in the end, the defendant must show the prosecutorial misconduct

    resulted in enduring prejudice, if counsel raised no objection. The rule of prosecutorial

    misconduct is oft~n phrased as requiring the defendant to demonstrate that the

    prosecutor's remark was so flagrant and ill-intentioned that no curative instruction would

    have been capable of neutralizing the resulting prejudice. State v. Gregory, 158 Wn.2d at

    841 (2006); State v. Evans, 163 Wn. App. at 642-43 (2011). From this rule, one may

    deduce that the prosecutor's conduct is flagrant and ill-intentioned if and only if no

    curative instruction could correct the resulting prejudice. If so, the adjectives "flagrant"

    and "ill-intentioned" become redundant. We could streamline the rule by simply stating

    the defendant gains a new trial if and only if she establishes that no instruction could cure

    the prejudice of the prosecutor's misstatement. But this streamlined presentment of the

    rule begs the most important question in resolving appeals based on alleged prosecutorial

    misconduct: how do appellate judges, who did not observe the entire trial and who know

    nothing about the twelve jurors' thoughts and deliberations, determine whether a curative

    instruction will prevent the jury from being influenced by the prosecuting attorney's

    misstatement.
                                                 12




I
No. 34374-0-III
State v. Mendoza (concurring)


          In Angela Mendoza's appeal, the majority probably applies a nonconstitutional

prejudice standard. Under this standard, prosecutorial misconduct is grounds for reversal

when there is a substantial likelihood the improper conduct affected the jury. State v.

Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009); State v. Gregory, 158 Wn.2d at 858-

59 (2006). This standard may echo the conventional nonconstitutional standard in other

contexts stated awkwardly and backhandedly as whether, within reasonable probabilities,

had the error not occurred, the outcome of the trial would have been materially affected.

State v. Gresham, 173 Wn.2d 405,433, 269 P.3d 207 (2012). In analyzing prejudice

resulting from prosecutorial misconduct, we do not look at the comments in isolation, but

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

instructions given to the jury. State v. Warren, 165 Wn.2d at 28 (2008); State v. Yates,

161 Wn.2d at 774. When applying this standard, the court usually measures the strength

of the State's evidence of guilt. State v. Barry, 183 Wn.2d 297,303,352 P.3d 161

(2015).

       In their briefs, neither party addressed the strength or weakness of the State's

evidence for purposes of appraising prejudice against Angela Mendoza. In tum, the

majority has not reviewed any of the State's evidence. This court does not enlighten

Mendoza whether we consider the State's evidence strong such that prosecutorial

misconduct did not impact her verdict.
                                             13
No. 34374-0-III
State v. Mendoza (concurring)


       On a side note, our Supreme Court, in its recent decision of State v. Walker, 182

Wn.2d 463 (2015), rejected weighing the State's evidence when assessing prejudice in

the context of prosecutorial misconduct. Walker did not entail a prosecutor's attempt to

weaken the presumption of innocence. Instead, during closing the prosecutor employed a

PowerPoint presentation that included 250 slides, one hundred of which were captioned

with the words "DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER."

One slide showed Walker's booking photograph altered with the words "GUILTY

BEYOND A REASONABLE DOUBT," which words were superimposed over the

defendant's face in bold red letters. State v. Walker, 182 Wn.2d at 471-75 (boldface

omitted). Other photographs juxtaposed the defendant with the victim and included

inflammatory captions. Trial defense counsel remarkably never objected to the

PowerPoint slides. The Supreme Court reversed the conviction and held that the

prejudicial effect could not have been cured by a timely objection.

       In State v. Walker, the Supreme Court directed an analysis that ignores the State's

evidence. The court held that an analysis of "prejudicial impact" does not rely on a

review of sufficiency of the evidence. 182 Wn.2d at 479. The Court of Appeals had

affirmed Walker's conviction despite misconduct by minimizing the prejudicial impact

because of overwhelming evidence of guilt. The high court wrote that, even if the State

has strong evidence to affirm the convictions had the defendant challenged the
                                            14



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                                                                                             i
No. 34374-0-III
State v. Mendoza (concurring)


sufficiency of the evidence, the focus must be on the misconduct and its impact, not on

the evidence that was properly admitted. The voluminous number of slides depicting

statements of the prosecutor's belief as to defendant's guilt, shown to the jury just before

it was excused for deliberations, was presumptively prejudicial and difficult to overcome,

even with an instruction. The ruling in Walker may be limited to its unique facts.

Otherwise Walker may have silently overruled numerous Washington decisions that

weigh the vigor of the State's evidence when assessing prejudice.

       I previously asked how appellate judges, who did not observe the entire trial and

who know nothing about the twelve jurors' thoughts and deliberations, determine

whether a curative instruction will prevent the jury from being influenced by the

prosecuting attorney's misstatement. I question how a reviewing court can adjudge

whether the jury would still have convicted the defendant if the prosecutor had not

engaged in the misconduct. A jury consists of twelve representatives of the community,

with each juror being influenced differently by evidence and argument. Appellate

judges' pampered existence in an ivory tower disqualifies them from being

representatives of the community. As one earlier court observed:

             It is highly improper for courts, trial or appellate, to speculate upon
      what evidence appealed to a jury. Jurors and courts are made up of human
      beings, whose condition of mind cannot be ascertained by other human
      beings. Therefore it is impossible for courts to contemplate the
      probabilities any evidence may have upon the minds of the jurors.
                                             15
No. 34374-0-III
State v. Mendoza (concurring)


State v. Robinson, 24 Wn.2d 909,917, 167 P.2d 986 (1946). Ifthe parties wantedjudges

to sit in the seat of jurors and recreate the thoughts of jurors, the parties would have

waived a jury trial.

       The rule that the defendant must show that a curative instruction could not prevent

prejudice assumes that a curative instruction helps. The rule is based on the presumption

that the jury follows the court's instruction. State v. Smith, 144 Wn.2d 665, 679, 30 P.3d

1245, 39 P.3d 294 (2001). Many jurists question the efficacy of a curative instruction

under any circumstances. United States Supreme Court Justice Robert Jackson wrote:

"The naive assumption that prejudicial effects can be overcome by instructions to the jury

... all practicing lawyers know to be unmitigated fiction." Krulewitch v. United States,

336 U.S. 440,453, 69 S. Ct. 716, 93 L. Ed. 790 (1949) (Jackson, J. concurring); quoted in

State v. Arredondo, 188 Wn.2d 244, 280, 394 P.3d 348 (2017) (Gonzalez, J. dissenting);

State v. Craig, 82 Wn.2d 777,789,514 P.2d 151 (1973) (Stafford, J. dissenting); State v.

Newton, 109 Wn.2d 69, 74, n.2, 743 P.2d 254 (1987).

       I return to State v. Johnson, 158 Wn. App. 677 (2010), wherein 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

Johnson court measured the seriousness of the prosecutor's misstatement by determining

if a jury instruction cured any prejudice. This court held that the arguments, despite an
                                              16
No. 34374-0-III
State v. Mendoza (concurring)


accurate jury instruction on the presumption of innocence, constituted flagrant and ill-

intentioned misconduct and incurable by a trial court's instruction. The court wrote:

               Although the trial court's instructions regarding the presumption of
       innocence may have minimized the negative impact on the jury, and we
       assume the jury followed these instructions, a misstatement about the law
       and the presumption of innocence due a defendant, the bedrock upon which
       [our] criminal justice system stands, constitutes great prejudice because it
       reduces the State's burden and undermirtes a defendant's due process
       rights.

State v. Johnson, 158 Wn. App. at 685-86 (2010) (alteration in original) (internal

quotation marks omitted). Angela Mendoza's prosecuting attorney battered the bedrock

of our criminal justice system when misstating the presumption of innocence. A broad

reading of Johnson stands for the proposition that no jury instruction may cure this

misstatement and a new trial is demanded. This court chooses not to follow the path of

Johnson.

       State v. Reed, 168 Wn. App. 553 (2012) contrasts with State v. Johnson and

Justice Robert Jackson's observation. Reed suggests that, if the prosecuting attorney

utters only one erroneous statement of law, the misconduct is not flagrant. In State v.

Reed, this court observed that the prosecutor engaged in misconduct by stating in rebuttal

argument that the presumption of innocence "does last all the way until you walk into

that [jury] room and start deliberating." 168 Wn. App. at 578 (alteration in original).

Nevertheless, trial defense counsel did not object to the prosecuting attorney's statement.
                                            17
No. 34374-0-III
State v. Mendoza (concurring)


This court affirmed the conviction because Reed failed to demonstrate that the remark

was so flagrant and ill-intentioned that no curative instruction would have been capable

of neutralizing the resulting prejudice. This court also noted that the prosecuting attorney

only uttered the error once and did not couple the error with any other obviously

improper arguments. The Reed court reasoned that a simple instruction from the trial

court indicating that the presumption of innocence may be overcome, if at all, only

during the jury's deliberations would have been sufficient to overcome any prejudice

resulting from the prosecutor's remark.

       Other decisions conclude that the prosecutor committed flagrant and ill-

intentioned misconduct, when eroding the presumption of innocence, but the prosecuting

attorney also committed other misconduct. 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 be a flagrant misconduct. Nevertheless, the State's counsel

also informed the jury that it must provide a reason for any doubt in the defendant's guilt.

Defense counsel did not object to either misstatement of the law. This court held that

cumulative error denied Venegas a right to a fair trial. We do not know if one isolated

comment disparaging the presumption of innocence would have led to a reversal. We do

not know if this court would have held only one misstatement to be prejudicial.
                                             18
No. 34374-0-III
State v. Mendoza (concurring)


       In State v. Evans, this court reversed a conviction for first degree robbery. The

prosecutor told the jury that the presumption of innocence "kind of stops once you start

deliberating." 163 Wn. App. at 643. Nevertheless, the prosecutor also suggested to the

jury that its role was to decide the truth of what happened, not merely whether the State

proved the elements of the crime beyond a reasonable doubt. The prosecutor told the jury

that the jury must be able to explain or supply a reason for its doubt before acquitting the

defendants. The court did not expressly declare that misstating the presumption of

innocence was inherently flagrant and incurable. The Evans court reversed because of

cumulative error. We do not know if the court would have reversed only if the

prosecutor misstated the presumption of innocence. The court also noted that the case

against the defendants was not so strong that the court could hold the prosecutor's

comments harmless. The State only had one witness to testify about the events and that

witness had credibility problems. The victim refused to cooperate.

       I have highlighted hitches inherent in an appeals court's review of a conviction

because of prosecutorial misconduct. I solicit firmer principles and methods of resolving

appeals that narrow the ability of judges to employ varying analyses and thereby utilize

their own attitudes of justice when assessing misconduct and prejudice.

      The decision as to whether prosecutorial misconduct warrants a new trial for

Angela Mendoza poses a more difficult question than the majority opinion recognizes. I
                                             19




                                                                                               I
No. 34374-0-111
State v. Mendoza (concurring)


agree, however, with the majority. The prevailing Washington view reverses convictions

in trials wherein the prosecuting attorney eroded the presumption of innocence only when

the prosecutor uttered other misstatements of the law. Angela Mendoza's trial court

rendered a jury instruction that properly instructed the jury on the presumption of

innocence. During trial, Angela Mendoza supplied no plausible explanation as to why

she returned, for a refund, toys to a local Toys R Us store and represented that the

franchise shipped the purchased toys to her home, when someone had earlier stolen the

toys from the victim's locked storage unit.

I CONCUR:




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