       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON                                                                   ro
                                                                                      CO
                                           )      No. 71968-8-1                            'i'-' ~0 rn
                         Respondent,
                                           )      DIVISION ONE
              v.                                                                      cn
                                                                                      o
                                                                                            ""_•
JOHN ROGER SHERMAN SMITH,                  )      UNPUBLISHED OPINION

                     Appellant.            )      FILED: July 28, 2014


       Becker, J. —The duty to provide effective assistance to a defendant does

not necessarily require defense counsel to elicit on direct examination the fact of

a prior conviction that has been ruled admissible for impeachment. And when a

defendant asserts self-defense in a prosecution for assault, it is not misconduct

for the prosecutor to question in argument why the defendant failed to report the

assault to the police.

       Appellant John Smith got into a fight with Jeffrey Morvel, his girl friend's        STATE COURT
ex-boyfriend, on the afternoon of August 19, 2012, in front of a motor home.

Both landed blows. Late that night, Morvel reported the incident to the police.

Smith did not report the incident to the police. When police contacted Smith to

investigate Morvel's report, he denied having been involved in any kind of fight.

       Morvel received treatment at a hospital for extensive fractures to his facial

bones. Smith suffered a cut lip and a swollen hand and eye.
No. 71968-8-1/2



       The State charged Smith with second degree assault. Smith asserted

self-defense. Morvel and Smith each claimed that the other person started the

fight. Assessing credibility was the key issue for the jury.

        Before trial, the court ruled that if Smith testified, the State could impeach

Smith using his prior conviction for making a false statement to a public servant.

       Smith testified. In his account of the fight, Morvel threw the first punch.

Smith's attorney did not ask him about the prior conviction.

       On cross-examination, the prosecutor began by asking Smith about the

prior conviction. Smith admitted the conviction. The prosecutor asked Smith if

he had ever contacted the police to report the assault. Smith testified that he had

not. The prosecutor asked Smith if he told the detective that he had not been

involved in any fight. Smith admitted making that statement to the detective and

agreed it was not a true statement. On redirect, Smith testified he was not being

honest with the detective because, having just been put in handcuffs, he was

scared. He testified that he understood that in court he was testifying under oath.

He said he was telling the truth in everything that he said in court.

       In closing argument, the prosecutor summarized the evidence that Smith

committed the assault with unlawful force. He did not mention Smith's prior

conviction for making a false statement or the fact that Smith admitted being

untruthful with the detective.

       Smith's closing argument urged the jury to "look at the bigger picture" and

believe his version of events despite his prior conviction and misstatements to

police. Defense counsel pointed out that the prior conviction was 10 years old.
No. 71968-8-1/3



He mentioned that Smith had admitted being dishonest with the detective about

the fight, but everything else he told the detective "was the truth" and Smith had

been cooperative rather than argumentative when the detective questioned him.

       In rebuttal, the State argued that Smith's failure to volunteer the conviction

in his initial testimony undermined his credibility:

               Defense counsel tells you—essentially tells you how honest
       the defendant is because he comes in here and tells you, "Yeah, I
       lied to the police," and "Yeah, I have a conviction for false
       statement." Except when did you find out about that? When did
       you find out that he had a conviction for false statement? When I
       asked him about it. He didn't share that with you. He didn't
       voluntarily share that with you.

       The jury convicted Smith as charged. This appeal followed. Smith alleges

ineffective assistance of counsel and prosecutorial misconduct.

       To show ineffective assistance, a defendant must show that counsel's

representation was deficient and that the deficiency caused prejudice. State v.

Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990). If an action can be seen

as legitimate trial strategy, it cannot serve as a basis for a claim of ineffective

assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280

(2002).

       Smith contends that competent counsel would have elicited the fact of the

prior conviction on direct examination to prevent the State from bringing it out as

a damning revelation. The State responds that omitting the question on direct

examination can be seen as a legitimate trial strategy under the circumstances.

We agree with the State. The conviction was 10 years old. Counsel may have

hoped that bringing up such a remote event to cast Smith in a bad light would
No. 71968-8-1/4



make the State appear harsh and unfair. Counsel may have hoped that to avoid

such an appearance, the State would decide not to mention the prior conviction

at all. Counsel may also have decided that any advantage gained by bringing

the prior conviction out in direct examination would be outweighed by the

prejudice incurred by having it discussed for a second time in cross-examination.

       Because the challenged conduct can be viewed as a legitimate trial

strategy, it was not ineffective assistance.

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

establish that the prosecutor's conduct was both improper and prejudicial in the

context of the entire record and the circumstances at trial. State v. Maqers. 164

Wn.2d 174, 191, 189 P.3d 126 (2008). In closing argument, the prosecuting

attorney has wide latitude to argue reasonable inferences from the evidence,

including evidence respecting the credibility of witnesses. State v. Hoffman. 116

Wn.2d 51, 94-95, 804 P.2d 577 (1991).

       The first alleged instance of misconduct occurred during the State's

rebuttal argument. The prosecutor, arguing that Smith was not credible,

mentioned that Smith did not admit his prior conviction until cross-examined

about it:


       When did you find out that he had a conviction for false statement?
       When I asked him about it. He didn't share that with you. He didn't
       voluntarily share that with you.

       Smith contends the State improperly implied that it was Smith himself,

rather than defense counsel, who was responsible for failing to introduce

evidence of the prior conviction during direct examination. He cites Miller v.
No. 71968-8-1/5



Pate. 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967). In Pate, the

prosecutor's argument referred to underwear as stained with blood, even though

he knew the stains were actually paint. Pate, 386 U.S. at 6. The comment here

is not at all like the argument decried in Pate. It was not an inappropriate

response to the defense argument that Smith should be regarded as credible.

       The second alleged instance of misconduct also occurred during the

State's rebuttal argument. The prosecutor contrasted Smith, who did not report

the assault to police, to Morvel, who did:

       The defendant claims to you that he was assaulted by Jeff, except
       that the defendant never called the police to report an assault. And
       when he was contacted by police, he said, "I wasn't in a fight with
       Jeff. I wasn't in a fight with anyone." Consider that in deciding
       whether he's credible or not. If he in fact was the victim of an
       assault, would he not have told the officer that? Would he not have
       reported the assault to the police if he was the victim?

       ... If he is the assailant, if he's the one committing the assault, he's
       having nothing to do with the police. Just like the defendant was
       having nothing to do with the police. Wouldn't tell them what
       happened. When he claims he was the victim. That's something
       you have to look at when deciding Jeff's credibility versus the
       defendant's credibility.

       Smith claims this argument impermissibly drew a negative inference from

his exercise of the constitutional right to remain silent and be free from self-

incrimination. Smith relies on cases holding that a defendant's prearrest silence

in response to police inquiries may not be used as evidence of guilt. E.g., State

v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996); State v. Burke. 163 Wn.2d 204,

217-18, 181 P.3d 1 (2008): State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d

221 (1985). A prosecutor may not argue that the defendant's refusal to talk to

investigating officers is evidence of guilt. State v. Thomas, 142 Wn. App. 589,
No. 71968-8-1/6



596, 174 P.3d 1264, review denied. 164 Wn.2d 1026 (2008) (improper for State

to convey to the jury the message that if the defendant was not guilty, he would

have returned to the crime scene to tell his side of the story).

       Here, the prosecutor was discussing Smith's conduct before the police

became involved, not his conduct during the police investigation. The argument

was not misconduct.


       Affirmed.




WE CONCUR:
