POUR] OF aP~EALS DIV I STATE OF WASNINGTOH 2019FEB5 AMIO:37
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal No. 79068-4-I Restraint of DIVISION ONE
KEVIN WAYNE FRANKLIN, UNPUBLISHED OPINION
Petitioner. FILED: February 5, 2019
CHUN, J. — Kevin Wayne Franklin raises numerous grounds for relief in
his personal restraint petition. He claims the trial court violated his right to a
public trial, admitted evidence obtained through an invalid search warrant, gave
an improper jury instruction, and allowed inadmissible gang evidence. He further
claims a witness gave improper opinion testimony, the prosecutor committed
misconduct, and both his trial and appellate lawyers performed ineffectively. For
the reasons discussed below, we deny the petition.
BACKGROUND In 2011, a jury convicted Franklin of drive-by shooting, first degree assault,
and first degree unlawful possession of a firearm. The Court of Appeals affirmed
Franklin’s conviction. The opinion from Franklin’s direct appeal contains a
recitation of the underlying facts.1 See State v. Franklin, No. 42027-9-Il (Wash.
Ct. App. April 30, 2013) (unpublished) https://www.courts.wa.gov/opinions/pdf/
1 The analysis below presents additional facts as necessary. No. 79068-4-1/2
D2%2042027-9-Il%20%20Unpublished%200pinion.pdf. The Supreme Court
denied Franklin’s petition for discretionary review.
Thereafter, Franklin filed this personal restraint petition. The Court of
Appeals dismissed the petition as untimely. The Supreme Court then accepted
discretionary review and determined Franklin timely filed the petition. Hence, we
address the issues he has raised.
ANALYSIS The standards of review for direct appeals do not apply to personal
restraint petitions. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d
324 (2011). For a court to disturb a settled judgment, the petitioner must meet a
high burden. Coats, 173 Wn.2d at 132. To obtain relief through a personal
restraint petition for constitutional errors, the petitioner must demonstrate actual
and substantial prejudice. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72,
101 P.3d 1 (2004). For nonconstitutional claims, the plaintiff must show the error
constitutes a fundamental defect resulting in a miscarriage of justice. Davis, 152
Wn.2d at 672. The petitioner must make these heightened showings by a
preponderance of the evidence. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17,
296 P.3d 872 (2013).
A. Right to a Public Trial
Franklin claims the trial court closed the courtroom during voir dire without
conducting a Bone-Club2 analysis, thus warranting a new trial. The State argues
2 State v. Bone-club, 128 Wn.2d 254, 906 P.2d 325 (1995).
2 No. 79068-4-1/3
the court did not need to conduct a Bone-Club analysis because, while it
removed certain family members, it did not close the courtroom to all spectators.
Because the record indicates that the court did not close the courtroom and
exercised caution when removing the family members, we determine it did not
violate Franklin’s right to a public trial.
During voir dire, Juror 51 told the court she heard family members of one
of the defendants speaking about the case.3 The court planned to ask Juror 51
about what she had heard, but grew concerned that she may feel intimidated if
the family members remained in the courtroom during the questioning. The
prosecutor told the judge that excluding the family members could raise an issue
under Bone-Club. Franklin’s counsel told the court, “From my perspective, Your
Honor, I don’t see it as closing the courtroom.” The court recessed to research
the Bone-Club issue.
After the recess, the court distinguished the situation from one requiring a
Bone-Club analysis as follows:
I think State v. Bone-Club was a situation where the courtroom was totally locked down and a few bystanders were allowed to stay, but in essence, the court was locked down.
It’s the Court’s intention to not lock the courtroom. It’s the Court’s intention to make this only for the purposes of determining or allowing a juror to express, without any hesitation or potential for intimidation, what that juror heard regarding any conversation from the family members. The courtroom will be excluded from those family members for only that purpose and that purpose only and would be for a limited purpose and for a limited time and for a reason which this Court believes would ensure a fair trial for both sides. Not
~ The court tried Franklin and Desmond Ray Johnson jointly as co-defendants. The record does not make clear whether the family members were Franklin’s or Johnson’s.
3 No. 79068-4-1/4
to limit the defendants’ ability to have a public trial, but in order to promote both the State and the defendant’s right to have a trial by jurors who are uninfluenced by any other outside process.
The prosecution and defense counsel agreed with the court. When
defense counsel inquired about other members of the public being welcome
inside the courtroom, the court said, “They can walk in at any time.” Franklin’s
counsel said, “I have no disagreement with the Court’s ruling.” The court then
stated, “Ladies and gentlemen, I would ask you at this point in time to briefly
leave the courtroom so we can interview Juror No. 51.” After the court
questioned Juror 51 and other jurors who had heard the family members
speaking, the court allowed the family members back into the courtroom. The
record does not reflect whether there were other spectators in the courtroom
during the questioning of the jurors.
Franklin contends the trial court’s actions violated his right to a public trial.
The public trial right derives from the Washington State constitution. Wash.
Const. art. I, § 22 (“the accused shall have the right ... to have a speedy public
trial”); Wash. Const. art I, § 10 (‘Justice in all cases shall be administered openly.”). The right safeguards the criminal justice system by ensuring public
oversight of the administration of justice. State v. Wise, 176 Wn.2d 1, 6, 288
P.3d 1113 (2012). The right applies to voir dire proceedings, including the
questioning of individual prospective jurors. Wise, 176 Wn.2d at 11.
But defendants do not have an absolute right to a public trial. State v.
Bone-Club, 128 Wn.2d at 259. While a court may close its courtroom to the
public, it must first conduct a five factor balancing test laid out by the Supreme
4 No. 790684-1/5
Court in Bone-Club. 128 Wn.2d at 258-59. If the trial court closes the courtroom
without conducting a Bone-Club analysis, it commits structural error for which a
new trial is the only remedy.” State v. Frawley, 181 Wn.2d 452, 459, 334 P.3d
1022 (2014).
However, ‘[the Bone-Club] rules come into play when the public is fully
excluded from proceedings within a courtroom.” State v. Lormor, 172 Wn.2d 85,
92, 257 P.3d 624 (2011). ‘[A] ‘closure’ of a courtroom occurs when the
courtroom is completely and purposefully closed to spectators so that no one
may enter and no one may leave.” Lormor, 172 Wn.2d at 93.
Here, when the trial judge initially made the ruling, he said, “The
courtroom will be excluded from those family members Additionally, the
minutes provide, “The family members are asked to leave the courtroom so that
we can interview juror #51 .“ After the questioning of Juror 51, the court asked
the rest of the panel if they had also heard the family members talking. The court
stated, “I’m going to hold back bringing in the observers at this point in time until
we can inquire as to the other jurors, but I want the record to reflect our
courtroom is not locked. It’s open to other individuals . . . .“ The record shows
the judge, lawyers for all parties, and defendants were present in the courtroom
during the questioning. The court specified that it did not lock the doors and that
observers other than the family members could watch the proceedings. The
court indicated it intended only for the family members to leave and nothing in the
record indicates any additional individuals also left. As the court did not fully
5 No. 79068-4-1/6
exclude the public from the courtroom, a closure did not occur. ~ Lormor, 172
Wn.2d at 93.
Nevertheless, a trial court must exercise caution when removing a
spectator. Lormor, 172 Wn.2d at 94. The court should ‘articulate the reasons
[for removal] on the record, and tak[eJ into particular account the defendant’s
right to have family present.” Lormor, 172 Wn.2d at 94.
The court in this case complied with these requirements before removing
the family members. The court explained it decided to remove the family
members so the juror could speak freely about what she had heard them saying.
By doing so, the court sought to protect Franklin’s right to an impartial jury.
Moreover, the court excluded the family only for this limited purpose and allowed
them to return afterwards. This demonstrates the court exercised the required
caution. The trial court did not err by removing the family members.
B. Search Warrant
Franklin next argues the trial court erred by denying his motion to
suppress evidence from his cell phone pursuant to an overly broad search
warrant. The State disputes this, arguing the search warrant specified the crime
being investigated.
Franklin was in the Ford SUV involved in the drive-by shooting at issue in
this case. Franklin, No. 42027-9-Il, slip op. at 4, 12. Several witnesses observed
gun shots from the Ford SUV fired at a vehicle owned and driven by John Morris.
Franklin, No. 42027-9-Il, slip op. at 4-5. No one in Morris’s vehicle was harmed
in the drive-by shooting. Franklin, No. 42027-9-Il, slip op. at 4. Morris and the
6 No. 79068-4-117
other occupants of his vehicle then fled the scene, drove to Kyle Ragland’s car,
and opened fire in a separate drive-by shooting. Franklin, No. 42027-9-Il, slip op.
at 4, n.4. Ragland died as a result of injuries suffered in the incident. Franklin,
No. 42027-9-li, slip op. at 4, n.4.
The police obtained a warrant to search several cell phones for evidence
in connection with the murder of Kyle Ragland.4 Johnson filed a motion to
suppress cell phone evidence on the grounds that the search warrant at issue
was overbroad. The motion argued the affidavit supporting the warrant failed to
establish a connection between the crimes charged and all of the cell phones
searched. Franklin moved to adopt all motions and memoranda filed by his co
defendant Johnson.
With regard to cell phones other than Jerome Kennedy’s, the affidavit
provided, “Mardre Combs confirmed during an interview that he was contacted
via phone by the occupants of the white Ford Explorer prior to arriving at the gas
station on 72nd Street.” The affidavit further stated:
Your affiant has received numerous levels of cellular forensic training and is a certified Mobile Forensic Cell Phone Examiner. The combination of this specific training and work on several violent crimes where cell phones were used has had consistent results. The results are that cell phones document geographically where they are when being used. This also includes a date and time. They also are a preferred method of society communication, and are used by most everyone. The devices typically have the ability to store text, images, and other data. Among past findings (on the actual handset) have been gang images, confessions through text, weapon images, call history to associates/victims and other stored criminal notations.
The State did not charge Franklin with any crime related to this second drive-by shooting. Franklin, No. 42027-9-Il, slip op. at 4, n.4.
7 No. 79068-4-1/8
Your affiant has also located deleted data on handsets that has been used in the criminal investigations. Pursuant to the affidavit, the court granted a search warrant for “{a]ny and
all data to include secondary storage and Deleted data that includes but is not
limited to call history, SMS/MMS content, sound, video and image files, and
proprietary files for cellular handsets . . . 2 Blackberry’s both Model 8320 -
(Titanium) . . . .“ Franklin owned one of the BlackBerry phones. The court
denied the motion to suppress.
“A warrant can be ‘overbroad’ either because it fails to describe with
particularity items for which probable cause exists, or because it describes,
particularly or otherwise, items for which probable cause does not exist.” State v.
Maddox, 116 Wn. App. 796, 805, 67 P.3d 1135 (2003) (footnote omitted).
Assuming, without deciding, that the search warrant was overbroad,
Franklin must also show the error caused actual and substantial prejudice by a
preponderance of the evidence. Davis, 152 Wn.2d at 671-72.
Franklin fails to explain how any evidence admitted pursuant to the
warrant prejudiced him. Instead, he asserts “[t]he prosecution rested its case on
stacking together threads of evidence that alone would not have proved Mr.
Franklin’s involvement.” This does not demonstrate that any evidence from the
phone caused Franklin actual and substantial prejudice by a preponderance of
the evidence. Accordingly, we reject Franklin’s argument on these grounds.
C. Jury Instruction No. 17
Franklin next claims the jury instruction defining knowledge misstated the
law. We disagree.
8 No. 79068-4-1/9
The challenged jury instruction provided as follows:
INSTRUCTION No. 17 A person knows or acts knowingly or with knowledge with respect to a fact when he or she is aware of that fact. It is not necessary that the person know that the fact is defined by law as being unlawful or an element of a crime.
If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.
When acting knowingly as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally as to that fact. Franklin contends the instruction misstated the definition of knowledge.
Washington statutory law defines ‘knowledge’ in the criminal context as follows:
A person knows or acts knowingly or with knowledge when:
(i) he or she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(H) he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense. RCW 9A.08.O10(1)(b).
Franklin argues the instruction ran afoul of the definition, stating the
statute “requires that the fact be described by criminal statute, not that the
fact itself be described as a crime.” However, the instruction followed the
Washington Pattern Jury Instruction5 concerning knowledge. ~
~ Pattern jury instructions “are drafted and approved by a committee that includes judges, law professors, and practicing attorneys.” State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). Thus, “pattern instructions generally have the advantage of thoughtful adoption and provide some uniformity in instructions throughout the state.” Bennett, 161 Wn.2d at 308.
9 No. 79068-4-1/10
WASHINGTON PRAcTIcE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL1O.02 (4th Ed) (WPIC). In Statev. Leech, 114 Wn.2d 700, 710,
790 P.2d 160 (1990), the Washington Supreme Court approved of the
language in the second edition ofWPIC 10.02. Later editions of the
instruction did not contain substantive amendments. 11 WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL1O.02 (4th
Ed) (WPIC).
A comment to WPIC 10.02 states: Modification of statutory definition. The instruction is based largely on the statutory definition of “knowledge.” RCW 9A.08.010(1)(b); RCW 9A.08.010(2).
The instruction varies from the statutory language in several regards. First, the instruction no longer includes the statutoty limitation that the fact, circumstance, or result be one that is “described by a statute defining an offense.” RCW 9A.O8.O1O(1)(b). This phrase adds nothing to what the jurors need to understand about the knowledge requirement and unnecessarily complicates the instruction. 11 WASHINGTON PRAcTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL1O.02 (4th Ed) (WPIC) (emphasis added).
We agree with the comment that the phrase, “described by a
statute defining an offense,” unnecessarily complicates the definition.
“The court need not include specific language in a jury instruction, so long
as the instructions as a whole correctly state the law.” Boeing Co. v. Key,
101 Wn. App. 629, 633, 5 P.3d 16 (2000). Accordingly, the instruction did
not violate Franklin’s due process rights.
10 No. 79068-4-I/li
D. Evidence of Gang Involvement
Franklin challenges the gang evidence introduced at his trial. He claims
admission of the evidence violated both ER 404(b) and the First Amendment.
We do not address the ER 404(b) claim because it was resolved in Franklin’s
direct appeal. Franklin’s First Amendment claim fails because the direct appeal
determined the gang evidence had a sufficient nexus to the charged crimes.
On a personal restraint petition, appellate courts “will not review issues
previously raised and resolved on direct review.” In re Pers. Restraint of Gentry,
137 Wn.2d 378, 388, 972 P.2d 1250 (1999). “[Courts] take seriously the view
that a collateral attack by PRP on a criminal conviction and sentence should not
simply be a reiteration of issues finally resolved at trial and direct review.
Gentry, 137 Wn.2d at 388. Instead, the petition should address new points of
law or fact that the defendant did not raise or could not have raised in the direct
appeal. Gentry, 137 Wn.2d at 388-89.
If a petition argues issues previously raised and decided on direct review,
the court will not address them unless the petitioner demonstrates “the ends of
justice will be served by reexamining the issue.” Gentry, 137 Wn.2d at 388. A
petitioner meets this burden if he or she demonstrates an intervening change in
law or other justification. Gentry, 137 Wn.2d at 388.
First, Franklin contends the court should not have admitted evidence of his
gang involvement under ER 404(b). However, the direct appeal resolved this
issue. The court determined that the gang evidence was admissible under ER
11 No. 79068-4-1/12
404(b) “to show motive.” Franklin, No. 42027-9-Il, slip op. at 18-19. Franklin has
not provided any justification as to why we should address the issue again.
Second, Frankhn claims the admission of the evidence violated his First
Amendment right to freedom of association. Franklin asserts “the trial court
abused its discretion when it allowed witnesses to testify regarding gangs and in
the case of Detective Ringer, about gang culture, because the State did not show
a nexus between the evidence and the crimes alleged.” Again, the direct appeal
addressed the nexus issue, albeit under a different legal argument. As part of its
analysis under ER 404(b), the court determined:
At trial, gang-expert Ringer also testified that a gang member or associate can achieve status by doing “drive-by shootings” on a rival gang; and if such member or associate does not “step up” and help retaliate when asked, he will be perceived as “weak” and will be “checked” by members of his own gang. 12 VRP at 1464, 1487, 1488. This testimony connected Franklin’s and Johnson’s gang affiliations, as well as Kennedy’s, to the charged crimes. We hold, therefore, that there was a sufficient nexus between Franklin’s and Johnson’s gang affiliations and the charged crimes. Franklin, No. 42027-9-Il, slip op. at 21.
Because the direct appeal already resolved the issue of whether a nexus
existed between the gang evidence and the charged crimes, we do not
reconsider the issue. The existence of a nexus defeats Franklin’s claim under
the First Amendment. See Davis, 152 Wn.2d at 670-71 (noting that recasting an
issue already addressed within a new claim does not constitute a new ground for
relief).
Accordingly, we reject the arguments that the admission of the gang
evidence violated ER 404(b) and the First Amendment.
12 No. 79068-4-1/13
2. Improper Opinion Testimony
Franklin argues Detective Ringer’s testimony—that “[ajlmost 100 percent
of the time, a gang individual, gang member, is not going to be totally honest with
law enforcement in an interview—constituted impermissible opinion testimony.6
At trial, the prosecution questioned Detective Ringer about Kennedy (and
not Frankhn) contacting a different detective to discuss the night of the drive-by
shooting. Detective Ringer testified as follows:
Q: In regard to this intimidation factor,~7~ now considering there are gang overtones that you already realized, I assume, by June 1st-- bandannas, drive-by shooting, individuals involved, etcetera --were you concerned about the veracity, I guess, of a gang person, Mr. Kennedy, giving you truthful information?
A: Definitely.
Q: Is there in your experience an adverse effect to when a gang member talks, whether they’re being truthful or not, to law enforcement?
A: Almost 100 percent of the time, a gang individual, gang member, is not going to be totally honest with law enforcement in an interview. There are still many factors affecting them. The whole culture of gangs says you don’t cooperate with the police. You certainly don’t talk honestly with the police. You don’t snitch. You don’t tell an fellow gang members even if you’re a victim. You tend -- the gang culture says you don’t talk with the police, you don’t cooperate.
So generally when we find a gang member who’s willing to talk, we approach it very sort of apprehensively as far as whether he’s
6 Franklin’s co-defendant, Johnson, raised the issue on direct appeal. Because he did not object to the testimony at trial, the court considered whether the error constituted manifest constitutional error. The court concluded the testimony did not prejudice Johnson because, as he did not testify, his credibility was not at issue. Additionally, the court determined the statement did not directly or indirectly comment on Johnson’s truthfulness. Franklin, No. 42027-9-Il, slip op. at 34-38. Detective Ringer had just testified the police will often interview someone without recording, before taking a recorded statement, because a recorder can be intimidating.
13 No. 79068-4-1/14
going to tell the truth or not. We take everything with a grain of salt. We work through the issues and try to get as much truth out as possible, but we go in anticipating that they’re not going to be truthful with us. “Generally, no witness may offer testimony in the form of an opinion
regarding the guilt or veracity of the defendant.” State v. Demerv, 144 Wn.2d
753, 758, 30 P.3d 1278 (2001). Trial courts should exclude such testimony
because it invades the province of the jury. Demery, 144 Wn.2d at 758. An
officer’s testimony as to his or her perception of a person’s truthfulness in relation
to explaining interview protocols does not constitute impermissible opinion
testimony. Kirkman, 159 Wn.2d at 931.
In State v. Kirkman, the Washington Supreme Court upheld admission of
testimony from a detective that he had engaged in a “preliminary competency
protocol” to determine a child’s ability to tell the truth, and that the child had
promised to tell him the truth in their pretrial interview. 159 Wn.2d at 923. When
the defendant challenged the testimony as an improper opinion, the Court
decided the detective’s testimony “[was] simply an account of the interview
protocol he used to obtain [the child]’s statement. . . . By testifying as to this
interview protocol, [the detective] ‘merely provided the necessary context that
enabled the jury to assess the reasonableness of the . . . responses.” Kirkman,
159 Wn.2d at 931 (citing Demerv, 144 Wn.2d at 764).
Here, Detective Ringer did not testify as to Franklin’s credibility, Instead,
in the context of discussing Kennedy, he stated he is often skeptical of whether a
gang member who initiates contact with the police is going to tell him the truth.
Detective Ringer did not say gang members can never be trusted, but rather that
14 No. 79068-4-1115
he “work[s] through the issues” to make sure his investigation is premised on
accurate information. Detective Ringer’s testimony, like the testimony in
Kirkman, related to his interview protocol in assessing and utilizing voluntary
statements from gang members in his investigation. This does not constitute
impermissible opinion testimony.
Moreover, Detective Ringer’s statement only addressed statements made
during interviews the police conduct while investigating a crime. This did not
bear on whether Detective Ringer thought Franklin would testify truthfully at trial.
Accordingly, we conclude Detective Ringer did not give improper opinion
testimony.
F. Prosecutorial Misconduct
Franklin claims the prosecutor committed misconduct by (1) referring to
improper opinion testimony, (2) implying Franklin acted as the shooter, and (3)
suggesting the trial was a search for truth. The State argues that none of the
prosecutor’s statements during closing argument amounted to misconduct. We
determine the prosecutor did not commit misconduct.
A prosecutor’s misconduct may deny a defendant his or her right to a fair
trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673
(2012). ‘A personal restraint petitioner raising a prosecutorial misconduct claim
must prove the misconduct was either a constitutional error resulting in actual
and substantial prejudice or a fundamental defect resulting in a complete
miscarriage of justice.” In re Pers. Restraint of Phelps, 190 Wn.2d 155, 165, 410
P.3d 1142 (2018).
15 No. 79068-4-1/16
Where a defendant does not object to alleged misconduct at trial, courts
consider the claim waived “unless the misconduct is so flagrant and ill-
intentioned that it cause[dj an enduring and resulting prejudice that could not
have been neutralized by a curative instruction.” Phelps, 190 Wn.2d at 165
(quoting In re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P3d 90 (2017)
(alteration in original). Courts determine a prosecutor’s actions constituted
flagrant and ill-intentioned misconduct “only when it crosses the line of denying a
defendant a fair trial.” Phelps, 190 Wn.2d at 166. The Supreme Court has found
flagrant and ill-intentioned misconduct “in a narrow set of cases where [the Court
was] concerned about the jury drawing improper inferences from the evidence,
such as those comments alluding to race or a defendant’s membership in a
particular group, or where the prosecutor otherwise comments on the evidence in
an inflammatory manner.” Phelps, 190 Wn.2d at 170.
First, Franklin claims the prosecutor relied on improper opinion testimony
in his closing argument. Franklin fails to point to any specific portion of the
closing argument that addressed the portion at issue of Detective Ringer’s
testimony. The prosecutor’s closing argument did not discuss Detective Ringer’s
testimony that “[ajlmost 100 percent of the time, a gang individual, gang member,
is not going to be totally honest with law enforcement in an interview.”
Second, Franklin challenges the prosecutor’s statement that “Mr. Franklin,
but for the position in the vehicle, he’s the shooter. He certainly had knowledge,
he certainly had motive.” Franklin argues this “misstated and distorted the
evidence in a manner that was both flagrant and so prejudicial it could not have
16 No. 79068-4-1/17 ~
been cured by instruction from the court by strongly implying the [sic] either he
was the actual shooter or ‘could have been’ the shooter.”
Courts give prosecutors wide latitude to argue reasonable inferences from
the evidence. Glasmann, 175 Wn.2d at 704. Under the prosecutor’s theory of
the case, four men—Franklin, Johnson, Kennedy, and Conrad Evans—had
gotten together that night to retaliate against a rival gang. The prosecutor argued
the group did not know each other very well, but all went out together because
they planned the drive-by shooting and cover up. The prosecutor’s inference that
Franklin willingly participated in the drive-by shooting and would have been
willing to shoot at Morris’s car had he been on the right side of the vehicle was
not unreasonable and does not rise to the level of flagrant and ill-intentioned
conduct. While perhaps not artfully phrased, the prosecutor’s argument did not
depict Franklin as the shooter; he clearly prefaced the statement with “but for his
position in the vehicle.” Even Franklin recognizes the prosecutor fell short of
saying he acted as the shooter.
Finally, Franklin contends the prosecutor committed misconduct by
suggesting that the trial was a search for the truth. However, the prosecutor did
not necessarily make such a suggestion. The prosecutor argued as follows:
Now remember, the first thing I asked an individual in the jury selection was, if you’re chosen to be on this jury, how important would it be for you to return a verdict that represents the truth about what happened. Everybody said, that’s what we’re here for. That’s justice, that’s our system. You can’t get a correct decision unless you get the truth about what happened.
Well that’s not exactly accurate. It’s certainly in principle and whatever everybody meant, of course, we all agree with. But, in
17 No. 79068-4-1/18
reality, this is the truth you have to decide. This is what you’re here for is the truth of the elements, the truth of the charges as the Court read.
So in this to convict, it says, under No. 1, on the 31st day of May, 2009, the defendant or an accomplice assaulted Benjamin Grossman. You have to find the truth of that beyond a reasonable doubt. If in any one of these elements, you can’t come to a truth that was proved, then it’s not guilty. The prosecutor’s argument accorded with Jury Instruction No. 2, which
stated, “If, from such consideration, you have an abiding belief in the truth of the
charge, you are satisfied beyond a reasonable doubt.” The prosecutor explained
that a jury does not search for the truth about what happened, but the truth about
the elements or charges. While the prosecutor’s statements verged on the
problematic, they fell short of distorting the role of the jury or the prosecutor’s
burden. See State v. Berube, 171 Wn. App. 103, 120-21, 286 P.3d 402 (2012)
(finding statement that “The word verdict means to speak the truth. And I ask
that you search for thetruth. When you go back into that jury room, you search
for the truth, not a search for reasonable doubt. And I ask that you find him
guilty” misstated prosecutor’s burden and constituted misconduct).
Here, by failing to object to any of the foregoing statements at issue,
Franklin waived his claim of prosecutorial misconduct. None of the statements
rise to the level of flagrant and ill-intentioned conduct causing an enduring
prejudice to Franklin that could not have been cured by a curative instruction.
G. Ineffective Assistance of Counsel
Lastly, Franklin claims ineffective assistance of counsel. He argues his
trial counsel was ineffective for failing to object to prosecutorial misconduct. He
18 No. 79068-4-1/19
also asserts his appellate counsel represented him ineffectively for failing to raise
the public trial right issue in his direct appeal. We conclude neither trial nor
appellate counsel performed ineffectively.
To make a successful claim for ineffective assistance of counsel, the
petitioner must show that counsel performed deficiently and that it resulted in
prejudice. State v. Salas, 1 Wn.App.2d 931, 949, 408 P.3d 383 (2018). The
deficiency element requires that the attorney’s performance fell below an
objective standard of reasonableness based on the circumstances. State v.
Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To establish prejudice, “there
[must be] a reasonable probability that, but for counsel’s unprofessional errors,
the outcome of the proceedings would have been different.” In re Pers. Restraint
of Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992).
Because we conclude the State did not commit prosecutorial misconduct
and the trial court did not violate Franklin’s right to a public trial, his ineffective
assistance of counsel claims necessarily fail. See Phelps, 190 Wn.2d at 169,
n.7.
We deny Franklin’s petition.
/ WE CONCUR:
A A. a