IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 79334-9-I ) Respondent, ) ) v. ) ) STEVEN SERGIO PERALTA, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — Steven Peralta challenges his convictions for possession of
a controlled substance and bail jumping. Peralta argues the prosecutor committed
prejudicial misconduct during closing argument by stating that drugs “don’t stay
behind locked doors” or “hidden in closets” and “affect everyone.”1 In the context
of the prosecutor’s entire closing argument, the remark did not appeal to the jury’s
emotions. In fact, immediately after the remark, the prosecutor explicitly
encouraged the jury to base its verdict on the properly admitted evidence.
Additionally, Peralta does not establish the remark was so flagrant and ill
intentioned that any resulting prejudice could not have been neutralized by a
curative instruction.
1 Report of Proceedings (RP) (Nov. 7, 2018) at 489. No. 79334-9-I/2
Peralta also contends he received constitutionally deficient representation
because his defense counsel failed to object to the remark. Peralta fails to show
the remark was an egregious misstatement. Because the closing argument was
neither an improper appeal to passion or prejudice, nor prejudicial, Peralta does
not establish ineffective assistance of counsel.
Therefore, we affirm.
FACTS
The State charged Peralta with one count of possession of a controlled
substance and one count of bail jumping. The jury convicted Peralta as charged.
Peralta appeals.
ANALYSIS
I. Prosecutorial Misconduct
Peralta contends the prosecutor committed prejudicial misconduct during
closing argument.
We review prosecutorial misconduct claims for abuse of discretion.2 To
prevail on a claim of prosecutorial misconduct, the defendant bears the burden of
establishing that the conduct was both improper and prejudicial.3
Any allegedly improper statements should be viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. Prejudice on the part of the prosecutor is established only where
2 State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). 3 State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
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“there is a substantial likelihood the instances of misconduct affected the jury's verdict.”[4]
Here, during closing argument, the prosecutor made the following
argument: “This case is not about whether or not Mr. Peralta is a good or bad
person. Drug addiction is powerful and pervasive. And drugs don’t stay behind
locked doors. And they don’t stay hidden in closets. And they affect everyone.”5
Peralta did not object to the prosecutor’s remark. “The failure to object to a
prosecuting attorney's improper remark constitutes a waiver of such error unless
the remark is deemed to be so flagrant and ill intentioned that it evinces an
enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury.”6
Peralta argues the prosecutor’s remark improperly appealed to the jury’s
passion and prejudice. The question is whether the statement “encouraged the
jury to base the verdict on the improper argument rather than on properly admitted
evidence.”7
Prior to the prosecutor’s remark that drugs “affect everyone,” the prosecutor
reviewed the elements of possession and the evidence admitted during trial. The
evidence admitted during trial included the presence of drug paraphernalia
4 State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995)). 5 RP (Nov. 7, 2018) at 488-89. 6 State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). 7 State v. Salas, 1 Wn. App. 2d 931, 946, 408 P.3d 383 (2018).
3 No. 79334-9-I/4
throughout the home where Peralta was staying and drug paraphernalia and
methamphetamine in Peralta’s room. The methamphetamine was found in a
basket inside the closet. The officers observed several locks installed on the door
to Peralta’s room. And Peralta admitted to officers that he used
methamphetamine and regularly purchased a month’s supply for himself and his
girlfriend.
Peralta contends the prosecutor’s argument “cast Peralta as the villain in
the drug abuse epidemic,” was designed to arouse outrage, and “cast the jurors
themselves as the victims by suggesting ‘everyone’ was affected by” Peralta’s
possession of methamphetamine.8 But any appeal to the juror’s emotions was
nominal. Earlier, the prosecutor mentioned, “This case is not about whether or not
Mr. Peralta is a good or bad person.”9 The prosecutor noted that drugs may “hit
far too close to home” for some jurors.10 The prosecutor’s observation that drugs
“affect everyone” was an attempt to give context about the impact of drugs to
those jurors for whom drugs were “not within [their] realm of experience.”11 This
mild reference was not an emotional appeal to blame Peralta for the drug abuse
epidemic.
8 Appellant’s Br. at 5. 9 RP (Nov. 7, 2018) at 488. 10 Id. 11 Id. at 488-89.
4 No. 79334-9-I/5
And immediately after the challenged remark, the prosecutor reminded the
jury, “You took an oath to follow the law,” and “you did not check your common
sense at the door.”12 Consistent with the prosecutor’s admonition that the jurors
“look at the evidence” and “that you are to consider all of the testimony,”13 the
prosecutor focused on the evidence that “methamphetamine was being used in
this house,” “methamphetamine was being used in this room,” “Mr. Peralta was
using methamphetamine,” and “Mr. Peralta possessed a large quantity of
methamphetamine.”14 In the context of the prosecutor’s entire closing argument,
the remark about drugs affecting everyone did not appeal to the jury’s passion and
prejudice. The prosecutor encouraged the jury to base its verdict on the properly
admitted evidence.
Even assuming, without deciding, the prosecutor’s remark was improper,
Peralta fails to establish the remark was so flagrant and ill intentioned that any
resulting prejudice could not have been neutralized by a curative instruction. A
curative instruction could have easily neutralized the prosecutor’s singular remark.
Peralta does not establish the prosecutor committed prejudicial misconduct.
12 Id. at 489. 13 Id. at 486. 14 Id. at 489.
5 No. 79334-9-I/6
II. Ineffective Assistance of Counsel
Peralta argues he received ineffective assistance of counsel. We review a
claim of ineffective assistance of counsel de novo.15 The defendant bears the
burden of proving ineffective assistance of counsel.16 First, the defendant must
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 79334-9-I ) Respondent, ) ) v. ) ) STEVEN SERGIO PERALTA, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — Steven Peralta challenges his convictions for possession of
a controlled substance and bail jumping. Peralta argues the prosecutor committed
prejudicial misconduct during closing argument by stating that drugs “don’t stay
behind locked doors” or “hidden in closets” and “affect everyone.”1 In the context
of the prosecutor’s entire closing argument, the remark did not appeal to the jury’s
emotions. In fact, immediately after the remark, the prosecutor explicitly
encouraged the jury to base its verdict on the properly admitted evidence.
Additionally, Peralta does not establish the remark was so flagrant and ill
intentioned that any resulting prejudice could not have been neutralized by a
curative instruction.
1 Report of Proceedings (RP) (Nov. 7, 2018) at 489. No. 79334-9-I/2
Peralta also contends he received constitutionally deficient representation
because his defense counsel failed to object to the remark. Peralta fails to show
the remark was an egregious misstatement. Because the closing argument was
neither an improper appeal to passion or prejudice, nor prejudicial, Peralta does
not establish ineffective assistance of counsel.
Therefore, we affirm.
FACTS
The State charged Peralta with one count of possession of a controlled
substance and one count of bail jumping. The jury convicted Peralta as charged.
Peralta appeals.
ANALYSIS
I. Prosecutorial Misconduct
Peralta contends the prosecutor committed prejudicial misconduct during
closing argument.
We review prosecutorial misconduct claims for abuse of discretion.2 To
prevail on a claim of prosecutorial misconduct, the defendant bears the burden of
establishing that the conduct was both improper and prejudicial.3
Any allegedly improper statements should be viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. Prejudice on the part of the prosecutor is established only where
2 State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). 3 State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
2 No. 79334-9-I/3
“there is a substantial likelihood the instances of misconduct affected the jury's verdict.”[4]
Here, during closing argument, the prosecutor made the following
argument: “This case is not about whether or not Mr. Peralta is a good or bad
person. Drug addiction is powerful and pervasive. And drugs don’t stay behind
locked doors. And they don’t stay hidden in closets. And they affect everyone.”5
Peralta did not object to the prosecutor’s remark. “The failure to object to a
prosecuting attorney's improper remark constitutes a waiver of such error unless
the remark is deemed to be so flagrant and ill intentioned that it evinces an
enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury.”6
Peralta argues the prosecutor’s remark improperly appealed to the jury’s
passion and prejudice. The question is whether the statement “encouraged the
jury to base the verdict on the improper argument rather than on properly admitted
evidence.”7
Prior to the prosecutor’s remark that drugs “affect everyone,” the prosecutor
reviewed the elements of possession and the evidence admitted during trial. The
evidence admitted during trial included the presence of drug paraphernalia
4 State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995)). 5 RP (Nov. 7, 2018) at 488-89. 6 State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). 7 State v. Salas, 1 Wn. App. 2d 931, 946, 408 P.3d 383 (2018).
3 No. 79334-9-I/4
throughout the home where Peralta was staying and drug paraphernalia and
methamphetamine in Peralta’s room. The methamphetamine was found in a
basket inside the closet. The officers observed several locks installed on the door
to Peralta’s room. And Peralta admitted to officers that he used
methamphetamine and regularly purchased a month’s supply for himself and his
girlfriend.
Peralta contends the prosecutor’s argument “cast Peralta as the villain in
the drug abuse epidemic,” was designed to arouse outrage, and “cast the jurors
themselves as the victims by suggesting ‘everyone’ was affected by” Peralta’s
possession of methamphetamine.8 But any appeal to the juror’s emotions was
nominal. Earlier, the prosecutor mentioned, “This case is not about whether or not
Mr. Peralta is a good or bad person.”9 The prosecutor noted that drugs may “hit
far too close to home” for some jurors.10 The prosecutor’s observation that drugs
“affect everyone” was an attempt to give context about the impact of drugs to
those jurors for whom drugs were “not within [their] realm of experience.”11 This
mild reference was not an emotional appeal to blame Peralta for the drug abuse
epidemic.
8 Appellant’s Br. at 5. 9 RP (Nov. 7, 2018) at 488. 10 Id. 11 Id. at 488-89.
4 No. 79334-9-I/5
And immediately after the challenged remark, the prosecutor reminded the
jury, “You took an oath to follow the law,” and “you did not check your common
sense at the door.”12 Consistent with the prosecutor’s admonition that the jurors
“look at the evidence” and “that you are to consider all of the testimony,”13 the
prosecutor focused on the evidence that “methamphetamine was being used in
this house,” “methamphetamine was being used in this room,” “Mr. Peralta was
using methamphetamine,” and “Mr. Peralta possessed a large quantity of
methamphetamine.”14 In the context of the prosecutor’s entire closing argument,
the remark about drugs affecting everyone did not appeal to the jury’s passion and
prejudice. The prosecutor encouraged the jury to base its verdict on the properly
admitted evidence.
Even assuming, without deciding, the prosecutor’s remark was improper,
Peralta fails to establish the remark was so flagrant and ill intentioned that any
resulting prejudice could not have been neutralized by a curative instruction. A
curative instruction could have easily neutralized the prosecutor’s singular remark.
Peralta does not establish the prosecutor committed prejudicial misconduct.
12 Id. at 489. 13 Id. at 486. 14 Id. at 489.
5 No. 79334-9-I/6
II. Ineffective Assistance of Counsel
Peralta argues he received ineffective assistance of counsel. We review a
claim of ineffective assistance of counsel de novo.15 The defendant bears the
burden of proving ineffective assistance of counsel.16 First, the defendant must
prove counsel’s performance was deficient.17 Second, the defendant must show
counsel’s deficient performance prejudiced his defense.18
Generally, courts strongly presume counsel’s representation was
effective.19 To determine whether counsel’s performance was constitutionally
deficient we consider “whether counsel’s assistance was reasonable considering
all of the circumstances.”20
Peralta argues he received deficient representation because defense
counsel failed to object during the prosecutor’s closing argument. “Defense
counsel’s failure to object to a prosecutor’s closing argument will generally not
constitute deficient performance because lawyers ‘do not commonly object
15 State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). 16State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). 17 Id. 18 Id. 19State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001) (quoting State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)), overruled on other grounds by State v. Pierce, ___ Wn.2d ___, 455 P.3d 647 (2020). 20 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001) (citing Strickland, 466 U.S. at 689-90).
6 No. 79334-9-I/7
during closing argument ‘absent egregious misstatements.’”21 Rather, “[i]f a
prosecutor’s remark is improper and prejudicial, failure to object may be deficient
performance.”22
Because we have concluded that the challenged statements were neither
improper nor prejudicial, Peralta fails to establish his ineffective assistance claim.
WE CONCUR:
21In re Pers. Restraint of Cross, 180 Wn.2d 664, 721, 327 P.3d 660 (2014), (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 717, 101 P.3d 1 (2004)), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). 22 Id. (emphasis added).