f I I l
l l. i FILED
l "I i j JULY 11, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
l li ]
I 1
l I ; ., 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 l ] STATE OF WASHINGTON, ) ) No. 34374-0-111 I j j Respondent, ) i ) v. ) 1 ) UNPUBLISHED OPINION 1l ANGELA ELIZABETH KING, ) l a/k/a ANGELA ELIZABETH MENDOZA, ) 1 a/k/a ANGELA ELIZABETH VARGAS, ) i ) l Appellant.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
I ~ in stolen property in the first degree. She contends the prosecutor committed flagrant
l j l 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.
I l 1 ! ' No. 34374-0-III State v. Mendoza j l l ! 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
I l 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). ~ l 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
l I 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
f 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.
Fe~