State Of Washington, Respondent/cr-appellant v. Hud A. Berlin, Appellant/cr-respondent ( 2015 )

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71546-1-1
Respondent,
v. DIVISION ONE
HUD ANTHONY BERLIN, UNPUBLISHED OPINION
Appellant. FILED: April 27, 2015
Leach, J. — Hud Berlin appeals his conviction for attempting to elude a
pursuing police vehicle, claiming prosecutorial misconduct and ineffective
assistance of counsel. Although the prosecutor omitted the knowledge element
when summarizing the State's proof obligation at the end of closing argument,
she directly addressed this element at the beginning of her closing argument.
And the trial court's instructions clearly and correctly state each element the jury
must find to convict Berlin. Thus, Berlin cannot show the prosecutor's behavior
was so flagrant and ill intentioned that a timely objection and appropriate
instruction could not cure any prejudice. Because knowledge is a key element of
the charged crime, Berlin's trial counsel should have objected. But because
Berlin cannot show actual prejudice, his ineffective assistance of counsel claim
fails. We affirm the trial court's judgment.
No. 71546-1-1/2
Background
On November 28, 2012, Snohomish County Deputy Sheriff Dixon Poole
saw a silver Hyundai Accent pull out of a residential driveway and drive in the
opposite direction on State Route 92. Poole did not see the driver at that time
but recognized the car as one associated with Hud Berlin, who had an
outstanding warrant for his arrest. Poole, in uniform, turned his marked patrol car
around to pursue the Hyundai. Though it was quite a bit ahead of Poole, he
followed the car into the lot at Lochsloy Store. Poole saw the Hyundai sitting
unoccupied at a gas pump outside the store. He parked out of view and waited
for backup. Deputy Jason Tift radioed information that the car had returned to
the residence but then left again and was heading back in Poole's direction, so
Poole continued to wait at Lochsloy Store. Poole saw the car heading up the
highway and slow down near the store. Poole testified that at this point he
recognized Berlin behind the wheel. Poole pulled behind the Hyundai, followed it
for several turns, and then activated his lights and siren. The driver did not slow
down.
Deputy Jason Tift joined in his car, activating his lights and siren. Police
chased the car at high speed, with cars and trucks pulling over to the side of the
road in both directions. Lake Stevens Police Commander Dennis Taylor
activated his lights and siren, joined the chase, and stayed with the Hyundai
throughout the remainder of the chase.
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The Hyundai took a fast turn and drove into a ditch. Taylor pulled up to
the driver's door and recognized Berlin, whom he knew from prior contacts, in the
driver's seat. The driver escaped through the passenger door, and police
unsuccessfully chased him. Tift recognized Berlin during the foot chase when
Berlin turned to look back at him from 15 yards away, but Tift soon lost sight of
him.
The State charged Berlin with one count of attempting to elude a pursuing
police vehicle with the aggravated circumstance of threatening physical harm or
injury to one or more persons besides himself and the pursuing officers.
At trial, Tift testified to locating the Lochsloy Store surveillance video that
showed Berlin in the store around the time of the incident. The State played the
video for the jury and in closing argument argued that it showed a person exiting
the driver's seat of the Hyundai, showed Berlin in the store, and then showed
Berlin entering the driver's seat of the vehicle just after he was in the store, all
between 3:30 p.m. and 3:36 p.m. Berlin denied driving the vehicle that day,
admitted to being in Lochsloy Store, but denied being the person who exited the
driver's seat of the car in the video. He claimed the car belonged to his girlfriend
and that she was in the driver's seat at the store. She testified that while she had
driven Berlin to the store in the Hyundai that day, it had been stolen from the
residence before the car chase.
A jury convicted Berlin as charged, and the trial court sentenced him to 26
months and 1 day of confinement as well as $600 in legal financial obligations.
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No. 71546-1-1/4
Analysis
Berlin argues that the State denied him a fair trial when the prosecutor
omitted the knowledge element of the charged crime when summarizing the
evidence required to convict. He argues that this constituted prosecutorial
misconduct, requiring reversal.
To prove prosecutorial misconduct, Berlin must show "'that the
prosecutor's conduct was both improper and prejudicial in the context of the
entire record and the circumstances at trial.'"1 Because Berlin failed to object to
the prosecutor's challenged remarks, he waived this error unless the misconduct
was so flagrant and ill intentioned that a trial court instruction could not have
cured the prejudice.2 To do this, Berlin must show that a curative instruction
would not have changed the prejudicial effect the comment had on a jury and
that the prejudice had a substantial likelihood of affecting the jury's verdict.3
A prosecutor serves an important role both to enforce the law and to serve
as a representative of the people, including defendants, while seeking justice.4
Thus, prosecutors owe a duty to defendants to ensure their constitutional right to
a fair trial is upheld.5 Where a prosecutor commits grave misconduct, such as
resorting to racist argument or appealing to racial stereotypes, the prosecutor
1 State v. Thorqerson, 172 Wash. 2d 438, 442, 258 P.3d 43 (2011) (internal
quotation marks omitted) (quoting State v. Maqers, 164 Wash. 2d 174, 191, 189
P.3d 126 (2008)).
2 State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653 (2012).
3 Emery, 174 Wash. 2d at 761 (quoting Thorqerson. 172 Wash. 2d at 455).
4 State v. Monday, 171 Wash. 2d 667, 676, 257 P.3d 551 (2011).
5 Monday, 171 Wash. 2d at 676.
No. 71546-1-1/5
violates a defendant's right to an impartial jury.6 When a prosecutor misstates
the law of a case to a jury, it has "the grave potential to mislead the jury."7
Here, at the end of closing argument, the prosecutor omitted the
knowledge element of the charged crime when summarizing the elements. The
statute for attempting to elude a pursuing police vehicle states in relevant part:
Any driver of a motor vehicle who willfully fails or refuses to
immediately bring his or her vehicle to a stop and who drives his or
her vehicle in a reckless manner while attempting to elude a
pursuing police vehicle, after being given a visual or audible signal
to bring the vehicle to a stop, shall be guilty of a class C felony.
The signal given by the police officer may be by hand, voice,
emergency light, or siren. The officer giving such a signal shall be
in uniform and the vehicle shall be equipped with lights and
sirens.[8]
But, omitting the element of knowledge, the prosecutor said,
If you find that the defendant was the driver, that the police
were in police uniforms, that they were driving marked patrol cars,
that their patrol cars had lights and sirens that were activated, and
they were signaling the defendant to stop, and he didn't, then you
must—and you believe all that beyond a reasonable doubt—not
just that you believe it, but the State has presented to you evidence
to prove it beyond a reasonable doubt—then you'll return a verdict
of guilty.
We look to see if this omission was so flagrant and ill intentioned that an
instruction could not have cured any prejudicial effect on the jury. A remarkable
misstatement of the law to the jury constitutes reversible error.9 And courts have
"on several occasions" interpreted the statute "as requiring knowledge by the
6 Monday, 171 Wash. 2d at 676.
7 State v. Davenport, 100 Wash. 2d 757, 763, 675 P.2d 1213(1984).
8 RCW 46.61.024(1).
9 State v. Warren, 165 Wash. 2d 17, 28, 195 P.3d 940 (2008).
No. 71546-1-1/6
driver" of a pursuing police vehicle.10 Berlin argues that the prosecutor's
omission was ill intentioned because it ignores this commonly known case law
making clear that knowledge is an element of the charged crime. He further
argues that the prosecutor lightened the State's burden and diverted the jury's
attention away from its duty to decide the case on the evidence.
But we look at a prosecutor's comments in the context of the entire
argument, the issues in the case, the evidence, and the instructions.11 Here, the
prosecutor opened her argument by correctly outlining each element of the crime
stated in the jury instructions, including the requirement "[t]hat the defendant
willfully failed or refused to immediately bring the vehicle to a stop." She then
elaborated on this requirement, saying to the jury, "You've certainly heard
testimony about this silver Hyundai and who was chasing it and where it went."
The prosecutor does not appear to intentionally exclude the knowledge element
of the crime as Berlin suggests. Because the prosecutor identified this element
earlier in her argument, her subsequent omission of it appears to be a mistake
rather than purposeful behavior. We conclude that the prosecutor's omission,
while an incorrect statement of the law, did not constitute flagrant or ill-
intentioned behavior.
And where Berlin failed to object and an instruction could have cured any
prejudice, we will not find misconduct. The trial court's instructions 5 and 6 to the
10 State v. Flora. 160 Wash. App. 549, 554, 249 P.3d 188 (2011); see also
State v. Mather. 28 Wash. App. 700, 702, 626 P.2d 44 (1981).
11 State v. Warren. 165 Wash. 2d at 28.
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No. 71546-1-1/7
jury each included the criminal intent element, stating that a defendant must
willfully fail or refuse to bring his or her vehicle to a stop and that the jury must
find that Berlin willfully did so. Berlin fails to show why a curative instruction
referring the jury to these two instructions outlining each element of the crime
would have failed to cure any prejudice.
Because Berlin cannot show that the prosecutor's conduct was so flagrant
and ill intentioned that a jury instruction could not cure any prejudice, we
conclude that his prosecutorial misconduct argument fails.
Berlin also argues that even if the prosecutor's misstatement did not
amount to misconduct, this court should reverse Berlin's conviction because his
own counsel's failure to object denied him effective assistance of counsel.
The constitutional right to a fair trial includes the right to effective
assistance of counsel.12 To prove ineffective assistance of counsel, Berlin must
show that his counsel deficiently performed and that this deficient performance
prejudiced Berlin.13 Courts employ a strong presumption that counsel reasonably
performed and that "under the circumstances, the challenged action 'might be
considered sound trial strategy.'"14 And "'[ojnly in egregious circumstances, on
12 State v. Bovd. 160 Wash. 2d 424, 434, 158 P.3d 54 (2007).
13 State v. McFarland. 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995).
14 Strickland v. Washington. 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984) (quoting Michel v. Louisiana. 350 U.S. 91, 101, 76 S. Ct. 158, 100
L.Ed. 83(1955)).
No. 71546-1-1/8
testimony central to the State's case, will the failure to object constitute
incompetence of counsel justifying reversal.'"15
Counsel's performance is deficient if it falls below an objective standard of
reasonableness.16 Berlin argues that his counsel's failure to object fell below this
standard. Defense counsel should be aware of the law and timely object to a
prosecutor who crosses the line.17 The State argues that defense counsel's
failure to object was a tactical and strategic decision within the boundaries of
reasonable performance. But because the statute and cases establish that the
crime of evading a police officer includes a knowledge element,18 Berlin's trial
counsel should have been aware of the law's requirement and objected to the
prosecutor's omission of this element.
However, because the trial court's instructions included the requirement
that Berlin have willful intent for the jury to convict him, Berlin cannot show
prejudice. Thus, Berlin cannot show that his trial counsel's failure to object
prejudiced him.
Conclusion
Because Berlin cannot show that the prosecutor's argument constituted
flagrant and ill-intentioned behavior or that an instruction could not cure any
prejudice, his prosecutorial misconduct claim fails. Because Berlin fails to show
15 State v. Neidiqh, 78 Wash. App. 71, 77, 895 P.2d 423 (1995) (quoting
State v. Madison, 53 Wash. App. 754, 763, 770 P.2d 662 (1989)).
16 State v. Brousseau. 172 Wash. 2d 331, 352, 259 P.3d 209 (2011).
17 Neidiqh. 78 Wash. App. at 79.
18 RCW 46.61.024; Flora. 160 Wash. App. at 554; Mather. 28 Wash. App. at
702.
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No. 71546-1-1/9
prejudice from his trial counsel's failure to object to this argument, his ineffective
assistance of counsel claim also fails. We affirm.
WE CONCUR:
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