IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 82584-4-I
Respondent, DIVISION ONE
V. UNPUBLISHED OPINION CESAR EDUARDO MARTINEZ- ZUNIGA,
Appellant.
SMITH, A.C.J. — Cesar Eduardo Martinez-Zuniga was charged with three
counts of rape of a child in the first degree following accusations made by his
seven-year-old half-sister M.M. The jury returned a guilty verdict on two of the
three counts. For the first time on appeal, Martinez-Zuniga contends that the
prosecutor committed misconduct by commenting on his right to silence,
improperly appealing to emotion, and misstating the burden of proof. He also
contends that the court erroneously allowed improper opinion testimony and that
he received ineffective assistance when his counsel failed to object to any of
these errors. We conclude that the prosecutor’s closing argument improperly
appealed to emotion and agree that certain testimony was improper. However,
because the errors were not prejudicial and counsel’s performance did not fall
below an objective standard of reasonableness, we affirm.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82584-4-I/2
FACTS
Cesar Eduardo Martinez-Zuniga moved to his father’s house in Des
Moines, Washington in November 2017. Julio Cesar Martinez Sr. (Martinez) left
Martinez-Zuniga when he was a year old and, though Martinez-Zuniga felt no
animosity toward his father, their relationship was not close, and deteriorated
once they began living together. Also living in the house were Martinez’s wife,
Ana Patricia Rodriguez Moran,1 and their three children, Martinez-Zuniga’s half-
siblings: J.M., M.M., born in December 2011, and S.M. Martinez’s daughter from
a prior relationship, the oldest of his children other than Martinez-Zuniga, would
occasionally stay over on weekends.
At some point after his arrival, Martinez-Zuniga began sexually abusing
M.M. She first reported the abuse to J.M., four years her elder. He encouraged
her to tell their older sister, who in turn convinced M.M. to tell Martinez and
Moran. Martinez-Zuniga denied the accusations when confronted by his family
shortly afterward. Martinez and Moran filed a police report that night, August 7,
2019.
Two weeks later, on August 21, 2019, M.M. received a forensic
examination at the Harborview Hospital Abuse and Trauma Center. The results
were atraumatic, neither indicating nor ruling out sex abuse.
Two days after the forensic examination, M.M. interviewed with a King
County Child Interview Specialist. In the interview, M.M. describes multiple
1 Ms. Moran’s name is spelled both “Rodriguez” and “Rodriquez” in
different parts of the record. We intend no disrespect if our spelling here is incorrect.
2 No. 82584-4-I/3
instances of rape. Though the number of instances of sexual assault and their
chronology is somewhat unclear, she describes abuse in various forms
happening “[a] lot of times” on different days. She is clear, however, that the
abuse first began when she was in first grade. She is able to describe his
genitals in some detail, and describes her own as hurting and feeling “bad,”
“weird,” and “gross” during the assault. Video and transcript of the forensic
interview were admitted at trial.
The State charged Martinez-Zuniga with three counts of rape of a child in
the first degree and the case proceeded to trial. The State’s case consisted of
M.M.’s testimony, testimony from her older brother J.M., from her parents, her
older sister, the law enforcement officers who had taken the family’s report, the
doctor who conducted the review at Harborview, and the forensic interviewer.
M.M. repeated many of her previous statements and provided additional details
when she took the stand. She confirmed that the last instance of abuse occurred
when she was in second grade and made a more detailed estimate about the
number of incidents: 20-25. In response, Martinez-Zuniga testified and denied
the accusations.
The prosecution’s closing argument began with an involved comparison
between the abuse M.M. routinely suffered and everyday activities of other
children her age, concluding that “any sense of a normal childhood for [M.M.]
ceased to exist.” Defense counsel did not object to this argument either in the
midst of the State’s closing arguments or subsequently, when given the chance
to do so by the court outside the presence of the jury. The State’s closing
3 No. 82584-4-I/4
argument also compared M.M.’s credibility about her abuse to her credibility
about her seventh birthday party, which had been a repeated subject of the
State’s questioning. Defense counsel again did not object.
The jury returned a guilty verdict on two of the three counts. Martinez-
Zuniga appeals.
ANALYSIS
Martinez-Zuniga asserts four main errors on appeal: (1) the prosecutor
committed misconduct by commenting on Martinez-Zuniga’s right to silence by
mentioning in his cross-examination of the defendant that they had never spoken
before; (2) the prosecutor committed misconduct by making an emotional appeal
during closing argument; (3) the prosecutor trivialized the burden of proof in his
closing argument when comparing M.M.’s credibility about her abuse and her
birthday; and (4) opinion testimony from M.M.’s brother J.M. constitutes manifest
error and the prosecutor committed misconduct by eliciting of the testimony. In
addition to these four errors, Martinez-Zuniga contends that his attorney provided
ineffective assistance by not objecting to any of the asserted prosecutorial
misconduct. He finally argues that even if any particular error does not alone
warrant reversal, the cumulative effect of the errors does.
Prosecutorial Misconduct and Opinion Testimony
The right to a fair trial is secured by the Sixth and Fourteenth
Amendments to the United States Constitution and by Article I, Section 22 of the
Washington State Constitution. In re Pers. Restraint of Glassman, 175 Wn.2d
696, 703, 286 P.3d 673 (2012). Prosecutors, as quasi-judicial officers
4 No. 82584-4-I/5
representing the state, are uniquely positioned to create constitutional error
affecting a defendant’s due process right to a fair trial. See State v. Reed, 102
Wn.2d 140, 145-47, 684 P.2d 699 (1984) (concerning long-recognized duties of
prosecutors). A prosecutor’s misconduct can violate this right. State v.
Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984).
It is the general rule that appellate courts will not consider issues raised
for the first time on appeal. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 935,
155 P.3d 125 (2007). An unchallenged error is nonetheless reviewable where it
is “manifest error affecting a constitutional right.” RAP 2.5(a). This exception is
narrowly construed. Kirkman, 159 Wn.2d at 935. To establish manifest error, an
appellant must (1) identify a constitutional error and (2) demonstrate prejudice by
showing “how the alleged error actually affected the defendant’s rights at trial.”
Kirkman, 159 Wn.2d at 926-27.
Where misconduct is at issue, the defendant bears the burden to
demonstrate the prejudice required for the manifest error analysis by showing
that a substantial likelihood exists that the improper conduct affected the jury’s
verdict. State v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43 (2011).
Defense counsel’s failure to object constitutes waiver unless the misconduct was
so flagrant and ill-intentioned as to render it incurable by jury instruction. State v.
Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).
1. Implication of Right to Silence
Martinez-Zuniga first contends that the prosecutor commented on his
constitutional right to silence when he began cross-examination by noting that
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they had never spoken before. U.S. CONST. amend V; CONST. art. I, sec. 9. We
disagree.
It is generally improper for a prosecutor to comment on a defendant’s
silence.2 Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966); State v. Easter, 130 Wn.2d 228, 241, 922 P.2d 1285 (1996) (use of
pre-arrest silence may be used only for impeachment); State v. Lewis, 130
Wn.2d 700, 705-06, 927 P.2d 235 (1996) (use of post-arrest silence to impeach
improper even where defendant testifies). Washington courts distinguish
between direct and indirect comments. State v. Romero, 113 Wn. App. 779, 790,
54 P.3d 1255 (2002). While a direct comment is sufficient to establish manifest
error, an indirect comment may not be. Romero, 113 Wn. App. at 790-91.
Here, the challenged exchange was not a comment on Martinez-Zuniga’s
right to silence, direct or indirect: Q: All right, Mr. Martinez-Zuniga, I’m going to be asking you a few questions, okay, sir? A: Yes, sir. Q: And so, sir, we’ve never spoken before. Is that right? A: No. Q: This is sort of the first opportunity that you and I have been able to have a conversation. Is that right? A: Yes, sir.
2 There is no indication in the record that Martinez-Zuniga was ever read
his Miranda rights. The State asserts that Martinez-Zuniga never exercised his right, and so “there was nothing upon which the State could impermissibly comment.”
6 No. 82584-4-I/7
The defense did not object and the prosecutor immediately moved on to
different matters. The exchange was not referenced at any later point during
trial.
These comments do not reference the right explicitly. Instead, they
appear mainly to have served the purpose of initiating the conversation and
establishing to the jury the level of rapport and familiarity to expect. In beginning
cross-examination by establishing the degree of previous communication
between witness and attorney, the prosecutor was following a track well-trodden
by defense counsel, who began the vast majority of his cross-examinations in a
similar fashion. Though the responsibilities of defense counsel and the state are
not identical—only the latter is subject to the misconduct analysis we engage in
now—this context still helps inform both how the questions were intended to be
heard and how the jury may have interpreted them. We conclude that the
prosecutor’s questions were not comments on Martinez-Zuniga’s right to silence
and therefore did not constitute prosecutorial misconduct.
2. Emotional Appeal During Closing Argument
Martinez-Zuniga next challenges statements made by the prosecutor
during closing arguments, directly comparing the abuse M.M. suffered to typical
childhood activities. We agree that the statements were an improper appeal to
emotion, but conclude that that they did not prejudice the defendant sufficiently to
rise to the level of manifest error.
“A prosecutor acts improperly by seeking a conviction based on emotion
rather than reason.” State v. Craven, 15 Wn. App. 2d 380, 385, 475 P.3d 1038
7 No. 82584-4-I/8
(2020) rev. denied, 197 Wn.2d 1005 (2021). Prosecutors have wide latitude to
make arguments and may draw reasonable inferences from the record, but bald
appeals to a jury’s passion and prejudice and references to evidence outside the
record constitute misconduct. Fisher, 165 Wn.2d at 747. “We review allegedly
improper comments in the context of the entire argument.” Fisher, 165 Wn.2d
at 747.
The sort of comment that is not only misconduct but also serves as basis
for reversal is egregious. Our Supreme Court in State v. Monday, for instance,
reversed where the prosecutor played on racial prejudice by imitating the
defendant’s pronunciation and asserting that “black folk don’t testify against black
folk.” 171 Wn.2d 667, 674, 257 P.3d 551 (2011). In Glassman, the prosecutor
during closing argument not only included unadmitted evidence in a slideshow
but editorialized, superimposing text over the evidence saying “WHY SHOULD
YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?” and “GUILTY.”
175 Wn.2d at 701-02.
In contrast, many cases acknowledge misconduct but do not find that it
prejudiced the defendant sufficiently to rise to the level of manifest error. For
instance, the Supreme Court in State v. McKenzie found misconduct where the
prosecutor drew attention to the victim’s “lost innocence,” but nonetheless
declined to find that the statements were so prejudicial that they could not have
been cured by instruction. 157 Wn.2d 44, 60, 134 P.3d 221 (2006). Similarly,
the prosecution in Craven repeatedly emphasized during closing argument that
the correct verdict is one that “should feel right.” 15 Wn. App. 2d at 384. This
8 No. 82584-4-I/9
court still declined to find that the misconduct was so flagrant that it required
review for the first time on appeal. Craven, 15 Wn. App. 2d at 391-92. That
conclusion was strengthened by the mitigating effect of the jury instruction
directing jurors to “reach your decision based on the facts proved to you and on
the law given to you, not on sympathy, prejudice, or personal preference.”
Craven, 15 Wn. App. 2d at 390-91. In light of that instruction, the presumption
that it was followed, and nothing indicating that the jury was misled, the
misconduct did not lead to the prejudice required for manifest error. Craven, 15
Wn. App. 2d at 391-92.
Here, the prosecutor improperly appealed to the jurors’ emotion
and therefore committed misconduct. The State’s closing arguments
began: Good afternoon. Now while other little 6 or 7-year-old little children were busy playing hide-and-seek, or outside playing soccer with their friends and family, [M.M.] was being raped and sexually abused in her home. While other kids were occupied with the thought of what they would be eating for a snack after class, [M.M.] was occupied with the thought of having the defendant’s penis so far in her mouth that she would be choking and gagging. While other children her age were busy and engaged with homework from school and planning what they were going to do for recess the very next day, [M.M.] was in the defendant’s bedroom with her [clothes] off and her penis [sic] in her vagina and butt. Ladies and gentlemen, when the defendant, Cesar Eduardo Martinez moved into that house in 2017, any sense of a normal childhood for [M.M.] ceased to exist. While other third graders were busy doing math or science, [M.M.] shared her day with us in that seat.3 And she told you the horrors of her reality. She told you what the defendant did to her on those days.
3 Martinez-Zuniga relies on this language about M.M. testifying to assert
that the prosecutor was improperly drawing attention to the exercise of his right
9 No. 82584-4-I/10
Although 2017 was some sort of a new beginning for Eduardo, it was also the beginning of M.M.’s nightmare.
The defense did not object. As in Craven, the jury was instructed to reach its
decision based on the facts and the law.
These comments are similar in nature to those in McKenzie and Craven.
The prosecutor, by not only engaging in a lengthy discourse emphasizing the
severity of the abuse M.M. suffered, but also by placing it at the beginning of his
opening to frame everything that followed, committed misconduct. His
statements were aimed at evoking the jurors’ emotional reactions to the nature of
the crimes and invited them to consider Martinez-Zuniga’s guilt through a lens of
moral outrage. They veer close to the “lost innocence” argument of McKenzie.
His arguments did not interpret the evidence and argue guilt on that basis but
instead emphasized the severity of the charges over the evidence supporting
them. This is misconduct.
Nonetheless, the misconduct was not so flagrant and ill-intentioned as to
be reviewable despite the lack of objection below. The prosecutor’s statements
were not so prejudicial as to be comparable to those in Glassman or Monday.
They did not incite racial prejudice, introduce evidence not admitted, or engage in
flagrant editorializing. As in Craven, we presume that the jury instruction
to trial, “making M.M.’s attendance and testimony necessary.” This issue was not assigned error, and to the extent that Martinez-Zuniga is making an argument separate from his more general contention that the prosecutor made an improper emotional appeal during closing, we need not address it. RAP 10.3(a); Graves v. Dep’t of Emp’t Sec., 144 Wn. App. 302, 182 P.3d 1004 (2008) (declining to address insufficiently briefed due process issue). His argument here is limited to a single citation, without elaboration or application, to State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006).
10 No. 82584-4-I/11
admonishing against emotional deliberation was effective, particularly in the
absence of any indication otherwise. Finally, though the comments drew
attention to the severe nature of the charges, that severity was not unknown to
the jury, which had already seen both M.M.’s testimony on the stand and her
videotaped interview with the forensic interview specialist. Under such
circumstances—particularly since there was no objection and a jury instruction
would likely have cured any prejudice—the prosecutor’s comments did not give
rise to manifest error and were not properly preserved for our review.
3. Misstatement of the Burden of Proof
Martinez-Zuniga next contends that the prosecutor committed misconduct
during closing argument, misstating the burden of the proof by comparing the
credibility of M.M.’s statements about her seventh birthday party to those about
her abuse. We disagree.
Prosecutors may not misstate or trivialize their burden of proof. State v.
Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014). One proscribed method of
trivialization is comparing the level of confidence required to find “beyond a
reasonable doubt” to that required for everyday decision-making. Lindsay, 180
Wn.2d at 436 (prosecutor trivialized and thereby misstated burden equating level
of comfort walking across a street with “beyond a reasonable doubt”). But a
prosecutor is “entitled to make a fair response to the arguments of defense
counsel.” State v. Gregory, 158 Wn.2d 759, 842, 147 P.3d 1201 (2006),
overruled on other grounds by State v. W.R., Jr., 181 Wn.2d 757, 771, 336 P.3d
1134 (2014). They are also permitted to “comment upon the quality and quantity
11 No. 82584-4-I/12
of evidence presented by the defense. . . . [Doing so] does not necessarily
suggest that the burden of proof rests with the defense.” Gregory, 158 Wn.2d at
860.
Martinez-Zuniga cites heavily to State v. Anderson, 153 Wn. App. 417,
431, 220 P.3d 1273 (2009) to further his argument on this issue. The prosecutor
in Anderson argued that “beyond a reasonable doubt” is the same standard
applied in choosing to, for instance, have elective surgery: “[you] might get a
second opinion. You might be worried, do I really need it? If you go ahead and
do it, you were convinced beyond a reasonable doubt.” Anderson, 153 Wn. App.
at 425. This was improper. Anderson, 153 Wn. App. at 431.
Such downplaying of the burden of proof did not occur here. Because
evidence at trial consisted almost entirely of the opposing testimony of M.M. and
Martinez-Zuniga, both the prosecutor’s and the defense counsel’s closing
arguments focused on issues of credibility. Several of the prosecutor’s
statements are at issue: [A]s the child in this case, [M.M.] . . . was the only eye witness to what her older stepbrother did to her. So don’t make no mistake about it, don’t get distracted. If you listen to [M.M.] and you believed her, that is enough in this case to find the defendant guilty.
And: These were the things that stood out to [M.M.]. Do you doubt that [M.M.] had a birthday party with the piñata and the cake? Because she couldn’t tell you any more details about that party of who was there, who all participated in that birthday party? The answer should be no. And if you believe that [M.M.] had this 7th birthday party with the piñata and cake, you can also say you believe her when she tells you about the rape and sexual abuse she suffered at the hands of Eduardo, the defendant.
12 No. 82584-4-I/13
And, at the very end of the argument: If you believe [M.M.] when she had a 7th birthday party, then you can say that you believed her when she told you about the sexual abuse she suffered at the hands of the defendant. And if you believe her when she talks about the sexual abuse, then you can find the defendant guilty. Thank you.
These were not misstatements of the burden of proof, but instead
arguments on how to interpret testimony where credibility is at issue. Even when
taken alone, out of context, they are not comments on the burden of proof. Each
comment stresses that the jury “can” take M.M.’s comments as proof rather than
urging that the jury was obligated to. The prosecutor’s argument focused on the
sufficiency of her testimony to establish guilt. It did not assert the existence of
any sort of necessary connection between belief in her testimony about her
birthday and a guilty verdict.
In context, the purpose behind and meaning of the comments is even
clearer. By analogizing between her testimony about her seventh birthday and
her abuse, the prosecutor was rebutting defense counsel’s arguments that
“inconsistencies” in M.M.’s testimony weakened her credibility. The prosecutor
reframed them, instead, as natural complications that arise when relying on
testimony about relatively distant events in the life of a child.
Furthermore, the court instructed the jury that it was the sole determiner of
credibility. And though the defense did not object to the challenged comments,
counsel for Martinez-Zuniga did address the prosecutor’s analogy between
M.M.’s birthday party testimony and abuse testimony in his closing argument.
13 No. 82584-4-I/14
The comments were not statements on, much less misstatements of, the
burden of proof. The prosecutor was making arguments about the quality of the
evidence presented to the jury and responding to the defense’s attempts to
impeach it. There was no error.
4. Opinion Testimony
Martinez-Zuniga contends that J.M.’s testimony about believing his sister
was improper opinion testimony constituting manifest error. He asserts that the
admission of the opinion testimony alone constitutes manifested error, but that
the prosecutor also committed misconduct by asking questions potentially
intended to elicit the testimony. While we agree that the testimony was improper,
we disagree that it, or the questions that gave rise to it, constitute manifest error.
Witness testimony discussing belief in the statements of other witnesses is
impermissible because it “invades the province of the jury as the fact finder in a
trial.” State v. Demery, 144 Wn.2d 753, 764, 30 P.3d 1278 (2001). Generally,
“[w]hether testimony constitutes an impermissible opinion about the defendant's
guilt depends on the circumstances of the case, including (1) the type of witness
involved, (2) the specific nature of the testimony, (3) the nature of the charges,
(4) the type of defense, and (5) the other evidence before the trier of fact.” State
v. Hudson, 150 Wn. App. 646, 653, 208 P.3d 1236 (2009). Martinez-Zuniga cites
to State v. Johnson for the notion that opinion testimony on the truthfulness of
testimony from family members carries special prejudicial weight. 152 Wn. App.
924, 219 P.3d 958 (2009). In Johnson, the relevant opinion testimony comprised
out-of-court statements from the defendant’s wife that she believed the victim’s
14 No. 82584-4-I/15
allegations because of specific descriptions of the defendant’s genitals and
masturbatory habits. Johnson, 152 Wn. App. at 933.
Here, no disagreement exists about whether the statement was proper or
admissible: it was neither. The testimony at issue is that of J.M., the first person
M.M. told about the abuse, who was 11 years old at the time. During direct
examination, the following exchange occurred in which J.M. expressed his belief
in the veracity of M.M.’s accusations: Q [Prosecutor]: Okay. And so you mentioned that with that, when you heard that, what were some thoughts going through your head when you were listening to this? A: I was really confused at first. I, I was like, did he really do that. And then she started getting emotional. And that’s when I started to believe her.
This violated a ruling in limine prohibiting “any witness from testifying that they
believed M.M.” Nonetheless, the defense did not object to this testimony.
Martinez-Zuniga suggests that its sheer existence constitutes constitutional error,
arguing only in the alternative that it is prosecutorial misconduct. Regardless of
the legal theory, we undertake the same manifest error analysis concerning
whether the testimony was prejudicial.
The requisite prejudice does not exist here to demonstrate manifest error,
and Johnson is distinguishable. That M.M.’s older brother, who later referred her
to their older sister, believed her accusations is hardly surprising and does not
carry such weight as to affect the outcome of the trial. It is extremely unlikely that
the jury extended J.M., who was 13 years old when testifying and 11 years old
during the events described, a similar weight of credibility as the jury in Johnson
15 No. 82584-4-I/16
did the defendant’s wife, whose testimony was particularly forceful because of
her access to extremely private information about Johnson. We find no manifest
error.
Ineffective Assistance of Counsel
Martinez-Zuniga, in addition to errors assigned above, contends that
defense counsel’s failure to object in each instance constituted ineffective
assistance of counsel. Because objectively reasonable tactical decisions could
support his attorney’s decision not to object, we do not find that his assistance
was ineffective.
Defendants have a right to effective representation. State v. McFarland,
127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995); Strickland v. Washington, 466
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate
ineffective assistance, a defendant must show (1) “defense counsel’s
representation . . . fell below an objective standard of reasonableness based on
consideration of all the circumstances and (2) defense counsel's deficient
representation prejudiced the defendant, i.e., there is a reasonable probability
that, except for counsel's unprofessional errors, the result of the proceeding
would have been different.” McFarland, 127 Wn.2d at 334-35.
Courts engage in a strong presumption that representation was effective.
State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). That presumption may
be overridden where there is an “absence of ‘legitimate strategic or tactical
reasons supporting the challenged conduct by counsel.’ ” State v. Crawford, 159
Wn.2d 86, 98, 147 P.3d 1288 (2006) (quoting McFarland, 127 Wn.2d at 336).
16 No. 82584-4-I/17
Defense counsel often “ ‘engages in . . . legitimate trial tactic[s] when forgoing an
objection in circumstances when counsel wishes to avoid highlighting certain
evidence.’ ” State v. Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424, 431 (2021)
(alterations in original) (quoting State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d
541 (2019)). Failure to object where that objection would not have been
sustained is not ineffective assistance of counsel. State v. Johnston, 143 Wn.
App. 1, 19, 177 P.3d 1127 (2007).
First, Martinez-Zuniga’s counsel can not be found ineffective for failing to
object when an objection would not have been sustained. Since the prosecutor
did not comment on Martinez-Zuniga’s right to remain silent or misstate the
burden of proof, no objection could have been sustained regarding those
statements. Counsel was therefore not ineffective in not objecting to them.
Second, counsel was not ineffective in not objecting to the prosecutor’s
emotional appeal because the failure to object is explainable by legitimate
strategic and tactical reasoning.4 The emotionally charged nature of this case is
self-evident. The jury was acutely aware of the severity of the charges, had sat
through weeks of testimony from M.M.’s parents, siblings, and numerous experts,
and had watched M.M. tell her own story both on the stand and through the video
of her forensic interview. Where the facts underlying the prosecutor’s
misconduct-laden emotional appeal are so well known, defense counsel faced a
4 Martinez-Zuniga does not address this matter in the body of his brief.
We briefly discuss it here even though we are not required to consider assignments of error unsupported by argument or authority. Talps v. Arreola, 83 Wn.2d 655, 657, 521 P.2d 206 (1974).
17 No. 82584-4-I/18
choice between the risk of calling even greater attention to them through an
objection or aiming to rebut the prosecutor’s improper argument in his own
closing argument. The latter approach is a legitimate and reasonable tactic
under the circumstances.
Finally, Martinez-Zuniga asserts that counsel was ineffective in failing to
object to J.M.’s opinion testimony. Though the testimony was improper and any
objection should have been sustained, J.M.’s comments were fleeting, unlikely to
carry much weight in the eyes of the jury, and wholly unsurprising—it was
reasonable in context to already assume his belief in his sister’s statements,
especially since he passed them along. Defense counsel’s decision not to object
was supportable by the desire not to call undue attention to the impropriety. This
was a legitimate and reasonable tactical decision.
Martinez-Zuniga did not receive ineffective assistance of counsel.
Cumulative Error
Finally, Martinez-Zuniga contends that even if any one of these errors
does not require reversal, cumulative error does. Cumulative error exists “when
there have been several trial errors that standing alone may not be sufficient to
justify reversal but when combined may deny a defendant a fair trial.” State v.
Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The defendant must show that
the combined prejudice of the errors affected the outcome of the trial. In re Pers.
Restraint of Cross, 180 Wn.2d 664, 690-91, 327 P.3d 660 (2014), abrogated on
other grounds by Gregory, 192 Wn.2d at 17. J.M.’s opinion testimony was
clearly improper but, because his opinion could be assumed in context, no
18 No. 82584-4-I/19
prejudice arises from it. Similarly, though the prosecutor’s emotional appeal
during closing argument may have been misconduct, any potential prejudice is
minimal. Taken together, even the combined prejudice of these errors did not
affect the outcome of the trial and does not require reversal.
We affirm.
WE CONCUR: