IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 77068-3-I
Respondent, ) DIVISION ONE
v. ) UNPUBLISHED OPINION
ERIKJON CARTER, ) ) Appellant. ) ) FILED: March 18, 2019 HAZELRIGG-HERNANDEZ, J. — A jury convicted Erik Carter of assault in the
second degree. Carter seeks reversal, arguing that prosecutorial misconduct and
ineffective assistance of counsel denied him his constitutional right to a fair trial.
Because Carter cannot show that the prosecutor’s argument was improper or that
defense counsel’s performance was deficient, we affirm.
FACTS
On October20, 2016, Sam Harris, Erik Carter, and Carter’s fiancée, Jessica
Bush, attended a meeting of their local iron workers union at the Labor Temple in
Seattle. After the meeting, a fight broke out involving several union members,
including Harris. A surveillance camera across the street recorded much of the
fight and subsequent events. Carter was not initially involved in the fight. Bush
was verbally involved, attempting to ‘referee” the participants and urging them to
fight one-on-one, rather than as a group. At one point when Harris had stepped No. 77068-3-1/2
away from the fight, he and Bush exchanged heated words. Carter then lunged
forward and punched Harris in the face, causing him to fall backward. Carter
testified that he acted to protect Bush because he believed that Harris was about
to push or strike her. The surveillance video showed that Harris was leaning his
left arm against a concrete pillar and resting his right arm on his hip. As Harris fell,
he struck the concrete pillar and then the ground. Harris sustained a skull fracture
and severe traumatic brain injury.
Carter was charged with assault in the second degree. The State further
charged that the injury to the victim substantially exceeded the level of bodily harm
necessary to satisfy the elements of the crime. At trial, the jury received an
instruction that the lawyers’ statements are not evidence. During closing
argument, the prosecutor told the jury that although the defendant was presumed
innocent, he was “not to be presumed truthful” as a testifying witness. The
prosecutor encouraged the jury to assess his bias and motivation like any other
witness. The prosecutor stated that “Carter’s motivation is for you not to convict
him. He is the most biased witness that you heard from.” Defense counsel
objected to this statement as improper argument and the court sustained the
objection. The defense counsel did not request that the statement be stricken from
the record. Therefore, the prosecutor’s statement remained. The State reminded
the jury at the beginning of its rebuttal argument that nothing the attorneys say is
evidence. The jury returned a verdict of guilty as charged and found that the
victim’s injuries substantially exceeded the level of bodily harm necessary to meet
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the elements of the crime. The court imposed an exceptional sentence of a term
of confinement of 24 months due to the presence of the aggravating circumstance.
DISCUSSION
Carter argues that the State committed prosecutorial misconduct during
closing argument that infringed upon his constitutional rights to testify in his own
defense and receive a fair trial. Additionally, Carter next argues that he was denied
his constitutional right to effective representation because defense counsel failed
to ensure that the statement was stricken from the record. Because Carter cannot
show improper argument or deficient performance, we affirm.
I. Prosecutorial Misconduct
Carter argues that the prosecutor’s statement regarding the defendant’s
bias and motivation as a witness unconstitutionally penalized the defendant for
exercising his right to testify in his own defense. The Washington State
Constitution guarantees criminal defendants the right to appear and defend in
person and the right to testify on their own behalf. Wash. Const. art. I, § 22. A defendant who chooses to testify at trial puts his credibility at issue by doing so.
See State v. Easter, 130 Wn.2d 228, 237, 922 P.2d 1285 (1996). The State may
not draw adverse inferences from the exercise of a constitutional right or take
action which will unnecessarily chill or penalize the assertion of a constitutional
right. State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984).
Here, Carter asserts that his constitutional rights were infringed because
the prosecutor attacked the credibility of his trial testimony based solely on his
status as the defendant rather than the evidence produced at trial. However, the
-3- No. 77068-3-1/4
State more properly frames the applicable constitutional issue whether the
prosecutor argued that Carter was not credible because he had exercised his right
to testify on his own behalf. Had the defendant not elected to testify, his credibility
as a witness would not have been at issue. The prosecutor did not argue that the
defendant’s testimony was unreliable because he chose to testify in his own
defense, but rather that Carter had a greater interest in the outcome of the case
than any of the other witnesses. The prosecutor’s comparative language—
“[Carter] is the most biased witness that you heard from”—does not necessarily
suggest that the defendant is the most biased witness in every case. However, a
testifying defendant does have an interest in avoiding conviction. This is a factor
that the jury may properly consider when assessing the credibility of the defendant
as a witness. Accordingly, the State did not infringe upon Carter’s right to
participate in his own defense.
Carter contends that the prosecutor’s remark constituted misconduct and
denied him a fair trial. As quasi-judicial officers, prosecutors have a duty to act
impartially in the interest of justice. State v. Reed, 102 Wn.2d 140, 147, 684 P.2d
699 (1984). When a defendant claims that prosecutorial misconduct occurred, the
burden rests on the defendant to show that the prosecutor’s conduct was both
improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937
(2009). The reviewing court is not required to reverse if the prejudicial effect of the
allegedly improper conduct could have been remedied by a curative instruction
which the defense failed to request. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d
747 (1994). When defense counsel fails to make an adequate timely objection
-4- No. 77068-3-1/5
and request a curative instruction, the issue of misconduct is waived unless any
improper remark was so flagrant and ill-intentioned that the resulting prejudice
could not have been cured by an instruction. State v. Gentry, 125 Wn.2d 570, 640,
888 P.2d 1105 (1995).
We first consider whether the comment is in fact improper. Reed, 102
Wn.2d at 145. In closing argument, prosecutors are allowed to draw reasonable
inferences from the evidence and have wide latitude in making arguments to the
jury. Fisher, 165 Wn.2d at 747.
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 77068-3-I
Respondent, ) DIVISION ONE
v. ) UNPUBLISHED OPINION
ERIKJON CARTER, ) ) Appellant. ) ) FILED: March 18, 2019 HAZELRIGG-HERNANDEZ, J. — A jury convicted Erik Carter of assault in the
second degree. Carter seeks reversal, arguing that prosecutorial misconduct and
ineffective assistance of counsel denied him his constitutional right to a fair trial.
Because Carter cannot show that the prosecutor’s argument was improper or that
defense counsel’s performance was deficient, we affirm.
FACTS
On October20, 2016, Sam Harris, Erik Carter, and Carter’s fiancée, Jessica
Bush, attended a meeting of their local iron workers union at the Labor Temple in
Seattle. After the meeting, a fight broke out involving several union members,
including Harris. A surveillance camera across the street recorded much of the
fight and subsequent events. Carter was not initially involved in the fight. Bush
was verbally involved, attempting to ‘referee” the participants and urging them to
fight one-on-one, rather than as a group. At one point when Harris had stepped No. 77068-3-1/2
away from the fight, he and Bush exchanged heated words. Carter then lunged
forward and punched Harris in the face, causing him to fall backward. Carter
testified that he acted to protect Bush because he believed that Harris was about
to push or strike her. The surveillance video showed that Harris was leaning his
left arm against a concrete pillar and resting his right arm on his hip. As Harris fell,
he struck the concrete pillar and then the ground. Harris sustained a skull fracture
and severe traumatic brain injury.
Carter was charged with assault in the second degree. The State further
charged that the injury to the victim substantially exceeded the level of bodily harm
necessary to satisfy the elements of the crime. At trial, the jury received an
instruction that the lawyers’ statements are not evidence. During closing
argument, the prosecutor told the jury that although the defendant was presumed
innocent, he was “not to be presumed truthful” as a testifying witness. The
prosecutor encouraged the jury to assess his bias and motivation like any other
witness. The prosecutor stated that “Carter’s motivation is for you not to convict
him. He is the most biased witness that you heard from.” Defense counsel
objected to this statement as improper argument and the court sustained the
objection. The defense counsel did not request that the statement be stricken from
the record. Therefore, the prosecutor’s statement remained. The State reminded
the jury at the beginning of its rebuttal argument that nothing the attorneys say is
evidence. The jury returned a verdict of guilty as charged and found that the
victim’s injuries substantially exceeded the level of bodily harm necessary to meet
-2- No. 77068-3-1/3
the elements of the crime. The court imposed an exceptional sentence of a term
of confinement of 24 months due to the presence of the aggravating circumstance.
DISCUSSION
Carter argues that the State committed prosecutorial misconduct during
closing argument that infringed upon his constitutional rights to testify in his own
defense and receive a fair trial. Additionally, Carter next argues that he was denied
his constitutional right to effective representation because defense counsel failed
to ensure that the statement was stricken from the record. Because Carter cannot
show improper argument or deficient performance, we affirm.
I. Prosecutorial Misconduct
Carter argues that the prosecutor’s statement regarding the defendant’s
bias and motivation as a witness unconstitutionally penalized the defendant for
exercising his right to testify in his own defense. The Washington State
Constitution guarantees criminal defendants the right to appear and defend in
person and the right to testify on their own behalf. Wash. Const. art. I, § 22. A defendant who chooses to testify at trial puts his credibility at issue by doing so.
See State v. Easter, 130 Wn.2d 228, 237, 922 P.2d 1285 (1996). The State may
not draw adverse inferences from the exercise of a constitutional right or take
action which will unnecessarily chill or penalize the assertion of a constitutional
right. State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984).
Here, Carter asserts that his constitutional rights were infringed because
the prosecutor attacked the credibility of his trial testimony based solely on his
status as the defendant rather than the evidence produced at trial. However, the
-3- No. 77068-3-1/4
State more properly frames the applicable constitutional issue whether the
prosecutor argued that Carter was not credible because he had exercised his right
to testify on his own behalf. Had the defendant not elected to testify, his credibility
as a witness would not have been at issue. The prosecutor did not argue that the
defendant’s testimony was unreliable because he chose to testify in his own
defense, but rather that Carter had a greater interest in the outcome of the case
than any of the other witnesses. The prosecutor’s comparative language—
“[Carter] is the most biased witness that you heard from”—does not necessarily
suggest that the defendant is the most biased witness in every case. However, a
testifying defendant does have an interest in avoiding conviction. This is a factor
that the jury may properly consider when assessing the credibility of the defendant
as a witness. Accordingly, the State did not infringe upon Carter’s right to
participate in his own defense.
Carter contends that the prosecutor’s remark constituted misconduct and
denied him a fair trial. As quasi-judicial officers, prosecutors have a duty to act
impartially in the interest of justice. State v. Reed, 102 Wn.2d 140, 147, 684 P.2d
699 (1984). When a defendant claims that prosecutorial misconduct occurred, the
burden rests on the defendant to show that the prosecutor’s conduct was both
improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937
(2009). The reviewing court is not required to reverse if the prejudicial effect of the
allegedly improper conduct could have been remedied by a curative instruction
which the defense failed to request. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d
747 (1994). When defense counsel fails to make an adequate timely objection
-4- No. 77068-3-1/5
and request a curative instruction, the issue of misconduct is waived unless any
improper remark was so flagrant and ill-intentioned that the resulting prejudice
could not have been cured by an instruction. State v. Gentry, 125 Wn.2d 570, 640,
888 P.2d 1105 (1995).
We first consider whether the comment is in fact improper. Reed, 102
Wn.2d at 145. In closing argument, prosecutors are allowed to draw reasonable
inferences from the evidence and have wide latitude in making arguments to the
jury. Fisher, 165 Wn.2d at 747. It is improper for prosecutors to assert their
personal belief as to the credibility of a witness. Reed, 102 Wn.2d at 145.
However, prosecutors may comment on the truthfulness of a witness as long as
the comment does not express a personal opinion or argue facts beyond the
record. State v. Smith, 104 Wn.2d 497, 510—11, 707 P.2d 1306 (1985). Prejudicial
error does not occur until it is clear and unmistakable that counsel is expressing a
personal opinion rather than arguing an inference from the evidence. State v.
Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). Alleged improper
comments, are reviewed in the context of the entire argument. Fisher, 165 Wn.2d
at 747.
Here, the prosecutor argued that Carter’s testimony was inconsistent with
his own prior statements, the testimony of eyewitnesses, and the surveillance
video. The prosecutor urged the jury to assess the defendant’s credibility as a
witness in the same way that they would any other witness, taking into
consideration any bias or personal interest in the outcome of the case that the
witness may have. Much of this language was taken directly from the first jury
-5- No. 77068-3-1/6
instruction, which the jurors had already heard. The prosecutor then argued that
Carter’s relative bias was greater than any of the other testifying witnesses. In the
context of the argument, this comment on Carter’s credibility appears to have been
a reasonable inference based on the evidence rather than an assertion of the
prosecutor’s personal belief. Because this comment was not improper, Carter’s
prosecutorial misconduct claim fails.
II. Ineffective Assistance of Counsel
Carter contends that his trial counsel was ineffective due to the failure to
ensure that the challenged statement was stricken after the objection was
sustained. Because the prosecutor’s remark was not an improper statement of
personal opinion on the credibility of a witness, no reasonably prudent attorney
would have requested that the trial court strike it from the record. Therefore, his
ineffective assistance of counsel claim fails.
We affirm.
WE CONCUR:
L~Z /
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