IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 87447-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION CLAUDIO E. GREEN-HERNANDEZ,
Appellant.
SMITH, J. — The State charged Claudio Green-Hernandez with felony
driving under the influence (DUI), violation of ignition interlock, driving while
license suspended/revoked in the first degree, and reckless driving. The
defense’s expert witness testified that Green-Hernandez’s symptoms may have
stemmed from his diabetes, and the symptoms could have affected Green-
Hernandez’s driving and performance in the field sobriety tests. The jury found
Green-Hernandez guilty on all counts. Green-Hernandez appeals, asserting
prosecutorial misconduct and ineffective assistance of counsel. Finding no error,
we affirm.
FACTS
Background
In December 2023, Trooper Padilla observed Green-Hernandez driving 20
miles per hour over the speed limit on Interstate 90. Padilla initiated a traffic
stop, during which he observed an open container in the center console, Green- No. 87447-1-I/2
Hernandez’s eyes were bloodshot and watery, and he smelled an odor of
intoxicants on Green-Hernandez’s breath. Padilla asked Green-Hernandez if
“anything prevent[ed] him from walking in a straight line or bouncing on one foot.”
Green-Hernandez informed Padilla that he had diabetes and high blood sugar.
Padilla conducted three voluntary field sobriety tests. Padilla observed four out
of six clues in the horizontal gaze nystagmus (HGN) test; four out of eight clues
in the walk-and-turn test; and three out of four clues on the one-leg-stand test.
Green-Hernandez was later charged with felony DUI, violation of ignition
interlock, driving while license suspended/revoked in the first degree, and
reckless driving.
Expert Witness Testimony
Green-Hernandez’s trial began in July 2024. During direct examination,
Dr. Nicole Chicoine,1 the defense’s expert witness, testified that she is a medical
legal consultant. Pertaining to Green-Hernandez’s case, Dr. Chicoine testified
that she reviewed his King County jail medical records, Harborview emergency
department medical records, and police videos. Dr. Chicoine did not physically
examine Green-Hernandez.
In reviewing Green-Hernandez’s medical records, Dr. Chicoine testified
that his blood sugar levels were 436 and 427, which she classified as a “pretty
high level.” Dr. Chicoine also testified that Green-Hernandez had endorsed
1 Dr. Chicoine’s primary job is an emergency medicine physician and clinical instructor at the University of Washington Department of Emergency Medicine. She testified that she treats patients with diabetes frequently, and it was common for her to treat patients with high blood sugar.
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concerns for polyneuropathy, or damage to his nerves.2 Symptoms of
neuropathy include numbness, tingling, and pain. Dr. Chicoine explained that
these symptoms can impact a person’s feeling or movement in their hands and
feet, the nerve damage may cause a person “not feel that they’re actually on the
ground or something soft or something hard.” Dr. Chicoine detailed that
diabetics with bad polyneuropathy have difficulties with balances and
coordination. Based on her medical expertise, Dr. Chicoine testified that
neuropathy can affect a person’s ability to perform the walk-and-turn test and the
one-leg-stand field sobriety tests.3
Additionally, Dr. Chicoine testified that hyperglycemia4 can negatively
affect a person’s attention to detail, memory, and ability to perform other
cognitive tasks. Dr. Chicoine concluded that it was possible that hyperglycemia
affected Green-Hernandez’s cognitive abilities while he was driving and
completing the field sobriety tests. Furthermore, if a person’s blood sugar gets
high enough, Dr. Chicoine stated, that they can experience diabetic ketoacidosis
(DKA).5 DKA symptoms include dehydration, vomiting, altered mental status,
2 Dr. Chicoine further explained that “when someone with diabetes has uncontrolled glucose over [a] extended [] period of time, you can have damage throughout your whole body.” Dr. Chicoine testified that neuropathy can be caused by diabetes. 3 Dr. Chicoine testified, “[i]f you don’t have the ability to feel, it’s
sometimes difficult for you to understand where your body is in relation to your environment, and it can affect your balance, it can affect your coordination. And if your motor neurons are affected, it also can cause weakness, which, in turn, can also cause instability and lack of coordination.” 4 Hyperglycemia is high glucose levels.
5 Diabetic ketoacidosis is diagnosed by a high glucose level, acid in one’s
blood, and presence of ketones.
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and potentially losing consciousness. Although the hospital did not conduct a
test for DKA, Dr. Chicoine noted that Green-Hernandez experienced two out of
the three symptoms.6 Dr. Chicoine determined that it was possible that Green-
Hernandez experienced DKA. Ultimately, in reviewing Green-Hernandez’s
medical records and other evidence, Dr. Chicoine concluded that Green-
Hernandez’s hyperglycemia, retinopathy,7 and polyneuropathy may have
affected his performance in driving and field sobriety tests.
On cross-examination, the prosecutor asked Dr. Chicoine if she was being
paid $500 for her testimony, and she replied, yes. The prosecutor then asked if
alcohol could cause an altered mental state, Dr. Chicoine answered, yes. The
prosecutor asked if alcohol could cause neuropathy and Dr. Chicoine stated, “I
presume like extensive alcohol usage.” Later, the prosecutor asked
Dr. Chicoine, “you would agree that all the clues that were seen on the walk-and-
turn and the one-leg stand, those are all consistent for alcohol impairment as
well, correct?” Dr. Chicoine replied, yes.
6 The three markers of DKA are high blood sugar, presence of ketones, and blood pH. Green-Hernandez exhibited high blood sugar and presence of ketones. His blood pH was unknown. 7 Retinopathy is any of various noninflammatory disorders of the retina
including some that cause blindness. Merriam-Webster, https://www.merriam- webster.com/dictionary/retinopathy (last visited June 24, 2026). Dr. Chicoine testified that Green-Hernandez experienced blurry vision at the hospital.
4 No. 87447-1-I/5
Prosecutor’s Closing and Rebuttal Closing Argument
In his closing argument, the prosecutor stated that he would talk about
“the law and how it applies to the facts of this case.” The prosecutor then
explained the burden of proof, is beyond a reasonable doubt. ... It is a doubt that would exist in the mind of a reasonable person. It is based upon the evidence or the lack of evidence in this case. It is not speculative or made-up doubt. It’s based on something that you would have seen or heard in court.
The prosecutor went on to describe certain evidence, As to what would be an unreasonable doubt in this case, it would be that the Defendant’s diabetes caused the signs of alcohol impairment that were observed. Dr. Chicoine concluded that the Defendant had neuropathy. That was based upon a note in his medical records that he had decreased sensation to light touch in his toes on December 27[th]. And, therefore, she concluded that he would not be able to properly do the walk-and-turn and one-leg stand of the field sobriety tests. This is an unreasonable doubt in light of all the medical records.
The prosecutor then stated, “[a]nother unreasonable doubt is that Mr. Green
Hernandez’s high blood sugar would cause the signs of impairment that were
observed in this case.” The defense did not object to these statements in the
closing argument.
Later, in the State’s rebuttal argument, the prosecutor discussed
Dr. Chicoine’s testimony. The prosecutor stated, And so [Dr. Chicoine] is making $500 an hour. And in the jury instructions, you can consider whether someone has a personal interest that might affect their opinion in a case. Wouldn’t you want to know that someone is being paid at an hourly rate to answer the question that’s being asked by Defense?
5 No. 87447-1-I/6
And the critical thing is you can see exactly what she came up with. She answered the question that Defense asked her that she was hired to ask. And how did she do that? She manipulated the medical records that were read to you.
The defense did not object to this statement. Then, the prosecutor discussed Dr.
Chicoine’s testimony about DKA: Now let’s talk about the DKA or HHS.[8] And this is exactly when you should realize that this is a hired doctor who is providing the opinion that she wants to provide. Because we have medical records from Harborview indicating that a doctor, one of her own colleagues, is saying he was reassured that he does not show symptoms indicating DKA or HHS.
The defense did not object.
The prosecutor later emphasized Dr. Chicoine’s testimony that Green-
Hernandez exhibited signs of significant neuropathy. The prosecutor asserted, This is not a reasonable doubt. It’s important that the expert was being paid because she came to a conclusion that is not based upon the medical records. She answered a question for her client, and you should not take her word based on the evidence that you have been presented. Because you get to consider the totality of the picture, right? You get to consider everything as it is.
The defense did not object. After closing arguments, the case was sent to the
jury for deliberation.
Green-Hernandez was found guilty of all counts and sentenced to
29 months. Green-Hernandez appeals.
ANALYSIS
Green-Hernandez asserts that the State committed prosecutor misconduct
when the prosecutor (1) expressed his personal opinion about the evidence and
8 HHS is the abbreviation for hyperosmolar hyperglycemic state.
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the credibility of the defense’s exert witness, (2) shifted the burden of proof to the
defense, and (3) impugned the defense counsel.
Legal Principles
We review claims of prosecutor misconduct under an abuse of discretion
standard. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995).
In a criminal trial, defendants have the right to an impartial jury under the
United States and Washington State Constitutions. U.S. CONST. amend. VI;
U.S. CONST. amend. XIV; WASH. CONST. art. I, 3; WASH. CONST. art. I, 22.
Prosecutors are quasi-judicial officers and representatives of the State. State v.
Zamora, 199 Wn.2d 698, 708, 512 P.3d 512 (2022). Thus, “a prosecutor owes a
duty to a defendant to see that their rights to a constitutionally fair trial are not
violated.” Zamora, 199 Wn.2d 698 at 708. As a result, prosecutor misconduct
claims directly implicate a defendant’s constitutional right to a fair trial. Zamora,
199 Wn.2d 698 at 708.
To prevail on this claim, a defendant must show that the prosecutor’s
conduct was improper and prejudicial. State v. Thorgerson, 172 Wn.2d 453, 442,
258 P.3d 43 (2011). We evaluate the prosecutor’s conduct “ ‘in the context of the
entire record and the circumstances at trial.’ ” State v. Magers, 164 Wn.2d 174,
191, 189 P.3d 126 (2008) (plurality opinion) (quoting State v Hughes, 118 Wn.
App. 713, 727, 77 P.3d 681 (2003)). A statement is prejudicial if it “had a
substantial likelihood of affecting the jury’s verdict.” State v. Emery, 174 Wn.2d
741, 760, 278 P.3d 653 (2012).
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After the defense establishes that a statement was improper, there are
two standards for determining if the defendant was prejudiced. If the defendant
objected to the appealed statement during trial, “the defendant must show that
the prosecutor’s misconduct resulted in prejudice that had a substantial likelihood
of affecting the jury’s verdict.” Emery, 174 Wn.2d at 760. If the defendant did not
object to the statement during trial, “the defendant is deemed to have waived any
error, unless the prosecutor’s misconduct was so flagrant and ill intentioned that
an instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d
at 760-61. The “failure to object to an improper remark constitutes a waiver of
error unless the remark is so flagrant and ill intentioned that it causes an
enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury.” State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747
(1994).
Prosecutor’s Expression of Personal Opinion
In closing arguments, prosecutors have wide latitude to draw reasonable
inferences from the evidence and to express such inferences to the jury. State v.
Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Although prosecutors
have wide latitude, they “may not make statements that are unsupported by the
record and prejudice the defendant.” State v. Jones, 71 Wn. App. 798, 808, 863
P.2d 85 (1993). We review the appealed comments in the context of the totality
of the argument. State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006).
This court will find that a prosecutor’s comments are prejudicial error when “it is
clear and unmistakable that counsel is not arguing an inference from the
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evidence, but is expressing a personal opinion.” State v. Papadopoulos, 34 Wn.
App. 397, 400, 662 P.2d 59 (1983).
a. Unreasonable Doubt
First, Green-Hernandez asserts that the State committed prosecutor
misconduct when it stated that unreasonable doubt existed about some evidence
presented at trial. After the prosecutor stated the burden of proof, he described
several pieces of evidence as unreasonable doubt: As to what would be an unreasonable doubt in this case, it would be that the Defendant’s diabetes caused the signs of alcohol impairment that were observed. .... And, therefore, [Dr. Chicoine] concluded that [Green-Hernandez] would not be able to properly do the walk-and-turn and one-leg stand of the field sobriety tests. This is an unreasonable doubt in light of all of the medical records. .... Another unreasonable doubt is that Mr. Green Hernandez’s high blood sugar would cause the signs of impairment that were observed in this case.
Green-Hernandez claims these statements were the prosecutor’s personal
opinion because he expressed how the jurors should view the evidence. We
have found that a prosecutor improperly expressed his personal opinion when he
stated, “that is my opinion about what this evidence shows.” State v. Case, 49
Wn.2d 66, 68, 298 P.2d 500 (1956). Conversely, here, the prosecutor did not
state that he was expressing an opinion. Rather, the prosecutor attempted to
convince the jury of certain conclusions to be drawn from the evidence. In the
context of the entire closing argument, after the contested statements, the
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prosecutor then summarized evidence that supported his theory that no
reasonable doubt existed.9
b. Expert Witness’s Credibility
Green-Hernandez asserts that the State improperly expressed its opinion
about Dr. Chicoine when it stated that she “manipulated the medical records,” “is
a hired doctor who is providing the opinion that she wants to provide,” and “was
being paid because she came to a conclusion that is not based on the medical
records.”
Before the prosecutor’s rebuttal, the defense’s closing arguments focused
on Dr. Chicoine’s testimony and why the jury should find her credible.10 The
prosecutor’s statements about Dr. Chicoine were in response to the defense’s
closing argument. In addition, the jury instructions stated that the jury was
allowed to consider “any personal interest that the witness might have in the
outcome or the issues.” After the prosecutor mentioned that Dr. Chicoine made
$500 an hour, he reminded the jury about this instruction.11 The prosecutor’s
9 Following the first contested statement, the prosecutor continued, “Dr. Chicoine concluded that the Defendant had neuropathy. That was based on a note in his medical records that he had decreased sensation to light touch in his toes on December 27th.” 10 Green-Hernandez’s counsel stated, “but you didn’t get to hear from
another doctor, anyone disputing Dr. Chicoine’s testimony. And you might suspect it’s not because they couldn’t find a doctor anywhere in Seattle, they couldn’t find a doctor who would agree with their theory. You can hold that against the State.” 11The prosecutor stated, “And in the jury instructions, you can consider whether someone has a personal interest that might affect their opinion in a case. Wouldn’t you want to know that someone is being paid at an hourly rate to answer the question that’s being asked by the Defense?”
10 No. 87447-1-I/11
comments about Dr. Chicoine’s pay were not improper because the comments
related to her personal interest.
The jury instructions also stated that the jury can consider “the
reasonableness of the witness’s statements in the context of all other evidence.”
The prosecutor’s statements that Dr. Chicoine “manipulated the records” and that
her conclusion was not based on the record addressed Dr. Chicoine’s testimony
in the context of all the evidence.
After the prosecutor stated that Dr. Chicoine manipulated the medical
records, he talked about the evidence presented during trial. The prosecutor
stated that Dr. Chicoine testified that horizontal nystagmus can be caused by
alcohol intoxication and can also be caused by medical conditions. The
prosecutor then argued that the symptoms of diabetes, as Dr. Chicoine testified,
were also symptoms of alcohol intoxication.12 Evaluating the prosecutor’s
argument as a whole, he did not assert that Dr. Chicoine was lying. Rather, he
was highlighting flaws in Dr. Chicoine’s testimony.
Shifting the Burden of Proof
Green-Hernandez asserts that the prosecutor improperly shifted the
burden to the defense by repeatedly telling the jury that there was unreasonable
doubt about the evidence.
Our Supreme Court has held that “it is improper for the prosecutor to
argue that the burden of proof rests with the defendant.” Thorgerson, 172 Wn.2d
12The prosecutor asserted, “[Dr. Chicoine] said that alcohol can cause a mental – altered mental state. Alcohol can even cause neuropathy.”
11 No. 87447-1-I/12
at 453. Additionally, our court has found that it is improper for a prosecutor to
misstate the reasonable doubt standard and impermissibly undermine the
presumption of innocence. Emery, 174 Wn.2d at 759-60.
Green-Hernandez claims that the prosecutor’s statements improperly
implied that the defense had to present a reasonable theory. Green-Hernandez
claims that by stating that the defense’s theory of the case was an “unreasonable
doubt,” the State shifted the burden by implying that Green-Hernandez had to
present a reasonable theory of the case.
Assessing the prosecutor’s closing statement in its entirety, the prosecutor
stated the correct burden of proof throughout his closing statement.13 Further,
the jury instructions stated that the jury are “the sole judges of the credibility of
each witness.” Additionally, the instructions state that “lawyers’ statements are
not evidence” and jurors must disregard statements that are not supported by the
evidence or by the law. Although the prosecutor’s use of the phrase
unreasonable doubt was a poor word choice, his comments, in context, did not
rise to the level of a misstatement of the burden of proof and did not mislead the
jury.
Impugning Defense Counsel
Green-Hernandez contends that by the prosecutor describing the
defense’s theory of the case as unreasonable and claiming that the expert
13 In part, the prosecutor stated, the standard is beyond a reasonable
doubt, “it is a doubt that would exist in the mind of a reasonable person. It is based upon the evidence or the lack of evidence in this case. It is not speculative or made-up doubt. It’s based on something that you would have seen or heard in court.”
12 No. 87447-1-I/13
witness manipulated the medical records, the State impugned Green-
Hernandez’s counsel.
Our courts have widely held that “it is improper for the prosecutor to
disparagingly comment on defense counsel’s role or impugn the defense lawyer's
integrity.” Thorgerson, 172 Wn.2d at 451. In Thorgerson, our Supreme Court
found that the prosecutor improperly impugned defense counsel when the State
accused the defense of using “ ‘sleight of hand’ tactics and used disparaging
terms like ‘bogus’ and ‘desperation’ to describe the defense.” 172 Wn.2d at 450.
In State v. Warren, improper impugnment was also found when the prosecutor
described the defense’s argument as “ ‘classic example of taking these facts and
completely twisting them to their own benefit, and hoping that you are not smart
enough to figure out what in fact they are doing.’ ” 165 Wn.2d 17, 29, 195 P.3d
940 (2008).
In his closing statements, the prosecutor did not directly address the
defense attorney’s role or argument. The prosecutor also did not make
disparaging comments regarding Green-Hernandez’s counsel. Thus, the
prosecutor did not impugn the defense counsel.
Prejudice and Cumulative Error
Green-Hernandez’s defense did not object to any of the contested
statements on appeal. Therefore, Green-Hernandez must show that the
prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of
affecting the jury’s verdict. Since we do not find misconduct, Green-Hernandez
was not prejudiced.
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Additionally, in the State’s rebuttal, defense counsel objected to a
statement about Green-Hernandez drinking alcohol and his diabetes. The court
gave a curative instruction, stating that the jury should rely on “the notes and the
words of the doctor, not what the lawyers are telling you.” This curative
instruction would also apply to the contested statements on appeal. Green-
Hernandez has shown no prejudice.
Green-Hernandez also contends that the prosecutor misconduct was so
flagrant, the cumulative prejudice could not have been cured by a jury instruction.
Under the cumulative error doctrine, if cumulative errors produce a trial that is
fundamentally unfair, a defendant may be entitled to a new trial. In re Pers.
Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994). Because we do not
find prosecutor misconduct, as detailed supra, no cumulative error occurred.
Ineffective Assistance of Counsel
Green-Hernandez asserts that his counsel’s failure to object to the
prosecutor’s statements closing and rebuttal arguments constitute deficient
performance.
We review claims of ineffective assistance of counsel under a de novo
standard, and it is a mixed question of law and fact. State v. Backemeyer, 5 Wn.
App. 2d 841, 848, 428 P.3d 366 (2018).
The United States and Washington State Constitutions guarantee the right
to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-
86, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); WASH. CONST. art. I, 22. In an
ineffective assistance of counsel claim, the defendant must show that “that
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counsel’s performance was deficient and that the defendant was prejudiced by
the deficient performance.” In re Pers. Restraint of Crace, 174 Wn.2d 835, 840,
280 P.3d 1102 (2012). A counsel’s performance “is deficient if it falls ‘below an
objective standard of reasonableness.’ ” State v. Grier, 171 Wn.2d 17, 33, 246
P.3d 1260 (2011) (quoting Strickland, 466 U.S. at 688).
During the State’s closing argument, Green-Hernandez did not object to
any statements. Because we determined that Green-Hernandez was not
prejudiced by the statements without an objection, his counsel was not ineffective
for his failure to object.14
Statement of Additional Grounds for Review
Green-Hernandez asserts that his case should be dismissed, that he
should be released immediately, and this court should grant him relief from the
conviction and sentence because the State did not pay the required filing fee.
Green-Hernandez cites RCW 36.18.020(2)(b) to support his assertion that the
State is required to pay a filing fee and file the receipt. RCW 36.18.020(2)(b)
states that the clerks of superior courts shall collect fees for: “[a]ny party, except
a defendant in a criminal case, filing the first or initial document on an appeal
from a court of limited jurisdiction or any party on any civil appeal, shall pay,
when the document is filed, a fee of $200.” RCW 36.18.020(2)(b) applies to
14Green-Hernandez asserts that the jury’s inquiries during deliberation showed that the prosecutor impacted their view of Dr. Chicoine’s credibility and the defense’s theory of the case. Although the questions show that the jurors were considering Dr. Chicoine’s testimony, it does not show that the jury questioned Dr. Chicoine because of the prosecutor’s comments.
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filings for appeals. Here, Green-Hernandez was the first party to file documents
on appeal. Further, this case is not a civil appeal or an appeal from a court of
limited jurisdiction. Even if Green-Hernandez’s interpretation of the rule was
accurate, he has not provided any authority that dismissal of the case is the
appropriate remedy. We decline to dismiss the case.
We affirm.
WE CONCUR: