State Of Washington, Respondent V. Enrique Cahue, Appellant (Majority)
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f1` tiJ t.J FILE OF APPEALS DI', ISIG' II j`' li l 261 i MAR 25 % M 8: 53 r+ IN THE COURT OF APPEALS OF THE STATE OF WASH ' S H E 14 U C DIVISION II I STATE OF WASHINGTON, No. 44020 -2 -II Respondent, V. UNPUBLISHED OPINION ENRIQUE CAHUE, LEE, J. his conviction argument, ( A and 2) he jury found sentence received Enrique Cahue guilty arguing ( 1) ineffective of second degree assault. Cahue appeals the prosecutor committed misconduct during closing assistance of counsel, and ( 3) the trial court erred by finding he has the ability or likely future ability to pay his legal financial obligations. We affirm. FACTS On February 13, 2012, the State charged Cahue with one count of second degree assault and one count of fourth degree assault.' At the conclusion of his jury trial, the State made the following comment in its closing argument: When you' re thinking of beyond a reasonable doubt beyond a reasonable doubt means that you have an abiding belief in the truth of the charge. What does your,head, what does your heart, what does your gut say? 2 Report of Proceedings at 232. The jury found Cahue guilty of second degree assault. Cahue' s judgment and sentence contains the following finding: 1 The facts underlying the assault are immaterial to Cahue' s appeal. No. 44020 -2 -II The court has considered the total amount owing, the defendant' s past, present, and future ability to pay legal financial obligations, including the defendant' s financial resources and the likelihood that the defendant' s status will change. The court finds that the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein. Clerk' s Papers ( CP) at 5. ANALYSIS Cahue appeals his conviction arguing that ( 1) the prosecutor' s comment during closing flagrant argument was and ill-intentioned misconduct, ( 2) he received ineffective assistance of counsel because his defense counsel did not object to the prosecutor' s comment, and ( 3) the trial court erred by entering the finding regarding his ability or likely future ability to pay legal financial obligations. The prosecutor' s comment during closing argument was not misconduct. Because the prosecutor' s comment was not misconduct, Cahue' s defense counsel was not deficient by failing to object to the Finally, Cahue' s challenge to the trial court' s comment. finding on his ability or likely future ability to pay legal financial obligations is not properly before this court. Accordingly, we affirm. PROSECUTORIAL MISCONDUCT A. This court reviews a trial court' s ruling on allegations of misconduct during closing argument 1997), for cent. an abuse of discretion. State v. Stenson, 132 Wn.2d 668, 718, 940 P. 2d 1239 denied, 523 U. S. 1008 ( 1998). The defendant alleging prosecutorial misconduct must show that the prosecutor' s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012). when there is Wn.2d at 760. a substantial This court will reverse for prosecutorial misconduct likelihood that the argument affected the jury verdict. Emery, 174 If a defendant fails to object to improper comments at trial, request a curative instruction, or move for a mistrial, this court will not reverse unless the misconduct was so 2 E[ owl] W flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct. Emery, 174 Wn.2d at 760 -61. Cahue did argues that the not to the object prosecutor' s prosecutor' s comment was closing flagrant and argument at trial. Cahue, however, ill intentioned. This court' s decision in State v. Curtiss, 161 Wn. App. 673, 250 P.3d 496, review denied, 172 Wn.2d 1012 ( 2011), controls In Curtiss, the defendant argued that the prosecutor committed misconduct by here. asking the jurors if Wn. App. improperly they knew in heads their hearts that the and defendant 2 was guilty. 161 This court rejected Curtiss' s argument that the prosecutor' s comments 701. at their appealed to the jury' s Curtiss, 161 Wn. emotion. App. 702. at The prosecutor' s comment during Cahue' s trial is indistinguishable from the comment made in Curtiss. Therefore, the prosecutor did not improperly appeal to the jury' s emotion. Further, the trial court instructed the jury: As jurors, you are officers of overcome your rational thought this court. You must not let your emotions You must reach your decision based on process. the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. To assure that all parties receive a fair trial, you must act impartially With an earnest desire to reach a proper verdict Suppl. CP at 36. This court presumes the follows the trial jury court' s instructions. Thus, the trial court' s instruction to decide the case on the evidence rather than emotion cured any potential prejudice caused 2 by the prosecutor' s comment. Curtiss, 161 Wn. App. at 702 ( citing Specifically the prosecutor in Curtiss argued: This trial is a search for the truth and a search for justice, and the evidence Degree your in this case is overwhelming. [ as an accomplice. gut accomplice Consider all Curtiss] is guilty of Murder in the First the evidence as a whole. Do you know in do you know in your heart that Renee Curtiss is guilty as an to murder? The answer is yes." 161 Wn. App. at 701. 3 No. 44020 - -II 2 State Stein, 144 Wn.2d 236, 247, 27 P. 3d 184 ( 2001)). v. Moreover, Cahue has not shown how any potential prejudice could not have been cured by an additional instruction to the jury. Curtiss, 161 Wn. App. at 702 ( citing State v. Gentry, 125 Wn.2d 570, 640, 888 P. 2d 1105, cent. denied, 516 U.S. 843 ( 1995); State v. Russell, 125 Wn.2d 24, 86, 882 P. 2d 747 ( 1994), cent. denied, 514 U.S. 1129 ( 1995)). Cahue relies on In re Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 to argue that the prosecutor committed misconduct by urging the jury to rely on their 2012), head, heart and gut rather than probative evidence and sound reason. Cahue' s reliance on Glasmann is misplaced. In Glasmann, the prosecutor used a picture slideshow during closing argument; the pictures were captioned GUILTY, GUILTY" with across phrases such the defendant' s as " DO YOU BELIEVE HIM?" face. 175 Wn.2d at 706. and " GUILTY, Our Supreme Court' s comments about urging the jury to disregard probative evidence and sound reason were in the context of holding that the prosecutor engaged in flagrant and ill- intentioned misconduct by relying on unadmitted evidence in closing argument:- Glasmann, 175 Wn.2d 706. at - Unlike the - prosecutor in Glasmann, the prosecutor here made one, isolated comment referencing the jury' s heart and gut. misconduct Nothing about the prosecutor' s conduct in Cahue' s case rises to the level of disapproved of in Glasmann. Accordingly, the prosecutor' s comments in this case were not improper, and we reject Cahue' s claim of prosecutorial misconduct. Ill No. 44020 -2 -II B. INEFFECTIVE ASSISTANCE OF COUNSEL Cahue also argues that he received ineffective assistance of counsel because his defense failed to counsel object to the prosecutor' s comment during closing argument. As explained above, the prosecutor' s comment was not improper; therefore, Cahue' s defense counsel was not deficient for failing to object. Cahue cannot meet his burden to show ineffective assistance of counsel. This court reviews ineffective assistance of counsel claims 165 Wn.2d 870, 883, 204 P. 3d 91,6 ( 2009). claims, this court begins with a strong de novo. State v. Sutherby, In reviewing ineffective assistance of counsel presumption of McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). counsel' s effectiveness. State v. A defendant claiming ineffective assistance of counsel has the burden to establish that ( 1) counsel' s performance was deficient and 2) the performance prejudiced the defendant' Strickland v. Washington, 466 U. S. 668, s case. 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Failure to establish either prong is fatal to an ineffective assistance of counsel claim: _ Strickland, 466 U.S. at 700: If the defendant bases his ineffective assistance of counsel claim on defense counsel' s failure to object, Gerdts, 136 Wn. improper sustain and it defense the defendant App. must show that the objection would 720, 727, 150 P. 3d 627 ( 2007). was not misconduct. counsel' s objection. have succeeded. State v. Here, the prosecutor' s comment was not Therefore, the trial court would not have had grounds to Because any objection defense counsel may have made to the prosecutor' s comment would not have succeeded, defense counsel' s performance was not deficient. Cahue has failed to meet his burden to show ineffective assistance of counsel because 5 No. 44020 -2 -II he cannot show that defense counsel' s performance was deficient. Accordingly, his claim must fail. C. LEGAL FINANCIAL OBLIGATION FINDING Finally, Cahue argues that the trial court' s finding that he had the ability or likely future ability to pay legal financial obligations is not supported by substantial evidence. Under this court' s decision in State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, review granted, 178 Wn.2d 1010 ( 2013), Cahue may RAP 2. 5. not raise this challenge for the first time. on appeal. See also Furthermore, as explained in State v. Lundy, 176 Wn. App. 96, 108, 308 P. 3d 755 2013), Cahue' s claim is not ripe for this court' s review until the State attempts to collect legal financial obligations from Cahue. Accordingly, Cahue' s claim regarding the trial court' s finding on legal financial obligations is not properly before Ahis court. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with_RCW 2.06. 0405 it is so ordered.- 2 2 Lee, J.
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