IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



# COURT STATE STATE OF WASHINGTON Respondent,

v. ) No. 71968-8-1 ) DIVISION ONE r~ ro CO

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JOHN ROGER SHERMAN SMITH, ) UNPUBLISHED OPINION o ""_• Appellant. ) FILED: July 28, 2014 Becker, J. —The duty to provide effective assistance to a defendant does not necessarily require defense counsel to elicit on direct examination the fact of a prior conviction that has been ruled admissible for impeachment. And when a defendant asserts self-defense in a prosecution for assault, it is not misconduct forthe prosecutorto question in argumentwhy the defendantfailed to reportthe assaultto the police. Appellant John Smith got into a fight with Jeffrey Morvel, his girlfriend's 

### ex-boyfriend, on the afternoon ofAugust 19, 2012, in front of a motor home. Both landed blows. Late that night, Morvel reported the incidentto the police. Smith did not report the incidentto the police. When police contacted Smith to 

### investigate Morvel's report, he denied having been involved inany kind of fight. Morvel received treatment at a hospital for extensive fractures to his facial bones. Smith suffered a cut lip and a swollen hand and eye.No. 71968-8-1/2 

### The State charged Smith with second degree assault. Smith asserted self-defense. Morvel and Smith each claimed thatthe other person started the fight. Assessing credibility was the key issue for thejury. Before trial, the court ruled that ifSmith testified, the State could impeach 

### Smith using his prior conviction for making a false statementto a public servant. Smith testified. In his account ofthe fight, Morvelthrew the first punch. Smith's attorney did not ask him aboutthe prior conviction. On cross-examination, the prosecutorbegan by asking Smith aboutthe 

### prior conviction. Smith admitted the conviction. The prosecutor asked Smithif he had evercontacted the police to report the assault. Smith testified that he had 

### not. The prosecutorasked Smith if he told the detective that he had notbeen involved in any fight. Smith admitted making that statementto the detective and 

### agreed itwas not a true statement. Onredirect, Smith testified he was not being honestwiththe detective because, having just been put inhandcuffs, he was scared. He testified that he understood that incourt he was testifying under oath. 

### He said he was telling the truth ineverything that he said in court. 

### In closing argument, the prosecutorsummarized the evidence that Smith committed the assaultwith unlawful force. He did not mention Smith's prior 

### conviction for making a false statementor the fact that Smith admitted being untruthful with the detective. 

### Smith's closing argument urged the jury to "look at the biggerpicture" and believe his version ofevents despite his prior conviction and misstatements to 

### police. Defense counselpointed out that thepriorconviction was 10yearsold.No. 71968-8-1/3


### He mentioned that Smith had admitted being dishonest withthe detective about the fight, but everything else he told the detective "was the truth" and Smith had been cooperative ratherthan argumentative when the detective questioned him. Inrebuttal, the State argued that Smith's failure to volunteerthe conviction in his initialtestimony undermined his credibility: Defense counsel tells you—essentially tells you how honest the defendant is because he comes in here and tells you, "Yeah, I lied to the police," and "Yeah, Ihave a conviction for false 

### statement." Exceptwhen did you find out aboutthat? When did 

### you find out that he had a conviction for false statement? When I asked him about it. He didn't share that with you. He didn't voluntarily share thatwith you. 

### The jury convicted Smith as charged. This appeal followed. Smith alleges ineffective assistance of counsel and prosecutorial misconduct. To show ineffective assistance, a defendant must show that counsel's 

### representation was deficient and that the deficiencycaused prejudice. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990). If an action can be seen 

### as legitimatetrial strategy, itcannot serve as a basis for a claim ofineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).

### Smithcontends that competentcounsel would have elicited the fact of the 

### priorconviction on directexamination to prevent the State from bringing itout as a damning revelation. The State responds that omitting the question on direct examination can be seen as a legitimate trial strategy underthe circumstances. 

### We agree withthe State. The conviction was 10 years old. Counsel may have 

### hoped thatbringing up such aremote event to castSmith in a badlightwouldNo. 71968-8-1/4 

### make the State appearharsh and unfair. Counsel may have hoped that to avoid such an appearance, the State would decide not to mention the prior conviction 

### at all. Counsel may also have decided that any advantage gained bybringing the priorconviction out indirect examination would be outweighed bythe prejudice incurred by having itdiscussed for a second time in cross-examination. 

### Because the challenged conduct can be viewed as a legitimate trial strategy, itwas not ineffective assistance. To prevail on a claim ofprosecutorial misconduct, the defendant must establish thatthe prosecutor's conductwas both improper and prejudicial inthe
context ofthe entire record and the circumstances at trial. State v. Maqers. 164 

### Wn.2d 174, 191, 189 P.3d 126 (2008). Inclosing argument, the prosecuting attorney has wide latitude to argue reasonable inferences from the evidence, including evidence respecting the credibility ofwitnesses. State v. Hoffman. 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). The first alleged instance ofmisconduct occurred during the State's rebuttal argument. The prosecutor, arguing that Smith was not credible, mentioned that Smith did not admit his prior conviction until cross-examined about it: When did you find out that he had a conviction for false statement? When Iasked him about it. He didn't share that with you. He didn't voluntarily share that with you. Smith contends the State improperly implied that itwas Smith himself, rather than defense counsel, who was responsible for failing to introduce evidence ofthe prior conviction during direct examination. He cites Miller v.No. 71968-8-1/5


### Pate. 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967). InPate, the prosecutor's argument referred to underwear as stained with blood, even though he knew the stains were actually paint. Pate, 386 U.S. at 6. The comment here is not at all likethe argument decried in Pate. Itwas not an inappropriate response to the defense argumentthat Smith should be regarded as credible. The second alleged instance ofmisconduct also occurred during the State's rebuttal argument. The prosecutorcontrasted Smith, who did not report the assaultto police, to Morvel, who did: The defendant claims to you that he was assaulted by Jeff, except thatthe defendant never called the police to report an assault. And when he was contacted by police, he said, "I wasn't in a fight with Jeff. Iwasn't in a fight with anyone." Considerthat indeciding whether he's credible or not. If he in fact was the victim of an assault, would he not have told the officer that? Would he not have reported the assault to the police ifhe was the victim?

... Ifhe is the assailant, ifhe's the one committing the assault, he's having nothing to do with the police. Just like the defendant was having nothing to do with the police. Wouldn't tell them what happened. When he claims he was the victim. That's something you have to look atwhen deciding Jeff's credibility versus the defendant's credibility. Smith claims this argument impermissibly drew a negative inference from his exercise ofthe constitutional right to remain silent and be free from selfincrimination. Smith relies on cases holding that a defendant's prearrest silence in response to police inquiries may not be used as evidence of guilt. E.g., State

v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996); State v. Burke. 163 Wn.2d 204, 217-18, 181 P.3d 1 (2008): State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221 (1985). A prosecutor may not argue thatthe defendant's refusal to talk to investigating officers is evidence of guilt. State v. Thomas, 142 Wn. App. 589,No. 71968-8-1/6 596, 174 P.3d 1264, review denied. 164Wn.2d 1026 (2008) (improperfor State to convey to thejury the message that ifthe defendantwas not guilty, he would have returned to the crime scene to tell his side ofthe story). Here, the prosecutorwas discussing Smith's conduct before the police became involved, not his conduct during the police investigation. The argument

was not misconduct. Affirmed.

WE CONCUR: