### FILED Aug. 4, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. ANDRE JACOB NUNEZ, Appellant. ) ) ) ) ) ) ) ) ) No. 32374-9-111
UNPUBLISHED OPINION

PENNELL, J. -AndreNunez appeals his conviction for first degree assaultwith a gang-aggravating sentence enhancement. While some ofthe errors raised have substantial merit, none warrantreversal. Wetherefore affirm. 

### FACTS 1 Brothers Ricardo and Ramiro Ruiz2 worked atWashingtonBeefin Yakima. Ricardo, a former Surefios gangmember,3 worked alongside Mr. Nunez for a shorttime.

1The following statement is taken from the facts presented attrial, construed inthe lightmost favorable tothe State as prevailingparty. 2For clarity, we reference the Ruizbrothers by their first names. No disrespect is intended. 3Ricardo was actually amember ofa Surefios gang in California. Hemovedto Washington an in attemptto leave the gang lifestyle.No. 32374-9-111 State v. Nunez
While at work one day, Ramiro accidentally bumped into Mr. Nunez. AfterRamiro apologized, 

### Mr. Nunez called him a "scrap," a derogatory word for a Surefio gang member, even though Ramiro was not a gang member. 7 Report ofProceedings (RP) (Feb. 10, 2014) at 692. In previous interactions, Mr. Nunezhad calledthe brothers "scraps," said "Norte," a word used by Nortefios gang members, and bragged "henever been dropped by Surefios." 6 RP (Feb. 7, 2014) at 659, 661. Laterthat same day, while Ricardo and Mr. Nunezwere on a break, Mr. Nunez told Ricardo that Ramiro "betterwatch his back" as Mr. Nunezthreatenedto "pullhis card." Id. at 649-50. Ricardo told Mr. Nunezhe should go through him instead ofhis brotherbecause it was he, notRamiro, who was a gang member. Mr. Nunezreplied he
was a "Yakimabanger for LR," orLaRaza, a subset ofthe Nortefios. Id. at 654. A short while later, Ramiro entered the breakroom. Ricardo told Ramiro aboutthis conversation but indicatedhe would handle it. As Ramiro went to leave, Mr. Nunez attemptedto engage him, asking Ramiro to go to the restroom with him. A fight then ensued. During the fight, Mr. Nunezpicked up a chair, showed his red belt, and made a sign referring to LaRaza. Ricardo tackled Mr. Nunez, knocking him out after Mr. Nunez's headhitthe wall. When Mr. Nunez got up, he yelled "gang stuffto [Ricardo]
... like '[f]ucking scraps."' 7 RP (Feb. 10, 2014) at 697. Following this altercation, Ricardo andRamiro
2No. 32374-9-111 State v. Nunez

were fired. Five weeks after the fight at Washington Beef, Ramiro stopped in an emptyPark and Ride lot near Yakima. A carpulled up behind him. Ramiro was sitting in the driver's seat ofhis carwhen someone threw a waterbottle at himthroughhis openrear window. Ramiro then saw Mr. Nunezjump into his carthrough the openwindow. Mr. Nunez stabbed Ramiro in the chestwith a small knife. Mr. Nunezkepttrying to stab Ramiro, at one pointmaking his way into the front passengerpart ofthe car. As he tried to stab Ramiro, Mr. Nunez said, "'[ w]ell nowyou fucking scrap. What are you going to do now?'" Id. at 703. Ramiro was able tojump from the car, and Mr. Nunez followed him, continuingto call him a"'fucking scrap.'" Id. at 702. Mr. Nunezthen said, '" [i]t's all about Norte. What the fuck are you going to do you fucking scrap?"' Id. at 704. After saying this, Mr. Nunez chased Ramiro around the car, demanding Ramiro give him his wallet. As Ramiro ran, he saw a female sitting in the driver's side ofthe car parked behind him. Ramiro flagged down help from another driver, and Mr. Nunez left in the car driven by the female. Ramiro wentto the hospital, where hereceived six or
seven sutures to close his wound. 

### PROCEDURAL HISTORY Mr. Nunez was arrested for second degree assault based on the Park and Ride
3No. 32374-9-111 State v. Nunez
incident. When he was booked intojail, he was housed in an area where inmates affiliated with the Nortefios resided. A few days later, Officer Steven Winmill checked in with Mr. Nunez regarding his housing status. Without first reading Mr. Nunezhis Miranda4 rights, OfficerWinmill asked Mr. Nunez questions from thejail's classification interview form to determine ifhewas correctly housed. Mr. Nuneztold OfficerWinmill he was affiliated with the Nortefios. Two months later, the State amended Mr. Nunez's charges to include one count of first degree assault with a gang aggravator.5 Priorto trial, the parties litigated the admissibility ofgang evidence, including the statements about gang affiliation Mr. Nunez made to OfficerWinmill, Mr. Nunez's tattoos, and testimony ofa gang expert. Attrial, the State called Officer Chris Taylor as a gang expert. Officer Taylor testified about the rivalry between the Nortefios and Surefios; the tattoos and symbols
worn by Nortefios; the meaning behindthe word "scrap," a termtheNortefios use to call theirrivals; and how the Nortefios retaliate when disrespected. The State also called JesseniaAcevedo Nunez, the female who was in the car during the altercation at the Park and Ride. Atthe time ofthe incident, she was Mr.

4Miranda v. Arizona, 384 U.S. 436,444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 5 Mr. Nunez was also chargedwith one count ofattempted first degree robbery with a gang aggravator. He was found not guilty onthis count. 4No. 32374-9-III State v. Nunez
Nunez's fiance. The two married subsequentto the filing offormal charges againstMr. Nunez. Mrs. Nunez testified despite Mr. Nunez's assertion oftestimonial privilege. The State also played recordings of jailphone calls between Mr. and Mrs. Nunez. Mr. Nunez was convicted offirst degree assault. By special verdict, thejury found Mr. Nunez was armed with a deadly weapon and he committed the crime with intentto
cause benefitto a criminal street gang. Mr. Nunez appeals his conviction. ANALYSIS 

### Booking Questions Mr. Nunez argues the trial court erred when it admitted his custodial statements to Officer Winmill about gang affiliation. Mr. Nunez's argument is thatbecause questions about gang evidence are likely to elicit an incriminating response, particularly in the context ofan assault charge, he should have been read his Miranda rights. Mr. Nunez has notraised a separate claim regarding whether ornot his statements were involuntary.6 Miranda warnings are required priorto custodial interrogations. Miranda v. Arizona, 384 U.S. 436,444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). There is no dispute

6 We therefore do not analyze whetherthe nature ofOfficer Winmill's questioning sufficiently differed from the process analyzed in State v. JuarezDeLeon, 185 Wn.2d 478,
_ P.3d
_ (2016), to renderMr. Nunez's statements involuntary apart from the Miranda violation. 

### 5No. 32374-9-III State v. Nunez
OfficerWinmill did not give Mr. Nunez his Miranda warnings. 

### It is also undisputed Mr. Nunezwas in custody. The issue is whether Officer Winmill's questions amounted to interrogation orwhetherthey were merely routine booking questions, unlikely to elicit an incriminatory response. Miranda warnings are required "whenever a person in custody is subjectedto either express questioning or its functional equivalent." Rhode Islandv. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Questions asked during a routine bookingprocess are typically not interrogation. State v. Denney, 152 Wn. App. 665, 671, 218 P.3d 633 (2009), overruledon othergrounds byIn re Cross, 180 Wn.2d 664,681 n.8, 327 P.3d 660 (2014). This is notbecause the booking context itselfis exempt from scrutiny. 

### It is because questions asked during booking-such as name, address, age-are typically innocuous. Butthis is not always true. Booking questions can constitute interrogation ifthey were "reasonably likely to elicit an incriminating response." Id. This is an objective test and the court's focus is onthe perceptions ofthe suspect. Innis, 446 U.S. at 301. As we recognized in State v. JuarezDeLeon, 185 Wn. App. 171, 198-203, 341 P.3d 315 (2014), reversedon othergrounds by 185 Wn.2d 478,
_ P.3d
_ (2016), questions relating to gang membership are not innocuous. Gang evidence canbe usedto
6No. 32374-9-111 

### State v. 

### Nunez
enhance a defendant's sentence. RCW 9.94A.535(3)(aa). It can also be used as proofof intent, motive, or the existence ofa criminal conspiracy. ER404(b); 

### State v. 

### Yarbrough, 151 Wn. App. 66, 81,210 P.3d 1029 (2009). Asking an individual charged with a violent crime about whetherhe is a gang member is not like asking about membership in a social
or civic club. As explained by the State's own expert, Officer Chris Taylor, groups such
as the Nortefios and Surefios are criminal street gangs whose members have a long history ofretaliatory acts ofviolence. Both our court and the Supreme Court have recognized that statements made about gang affiliation duringjail classificationprocedures are usually, ifnot always, involuntary. 

### JuarezDeleon, 185 Wn.2d at 486-87. To the extent it might be possible for the voluntariness test to be overcome in some instances, 

### Miranda warnings must be providedpriorto the admission ofa defendant's statements in the State's case in chief. Because Officer Winmill's questions to Mr. Nunez about gang affiliation were likely to elicit an incriminating response, they should have been suppressed. Nevertheless, the admission ofthis evidence was harmless. Unlike in

### JuarezDeleon, the Statepresented overwhelming evidence ofMr. Nunez's gang affiliation at trial. 

### See id. at 487-89. Mr. Nunez'sbody was covered with gang-relatedtattoos, his wife confirmedhe
was a member ofthe Nortefios, and testimony by the Ruiz brothers indicated Mr. Nunez

7No. 32374-9-III State v. Nunez
made repeated gang-related statements and wore gang-related colors. Giventhese circumstances, theMiranda violation does not warrantreversal. Spousal Privilege Mr. Nunez's wife was compelled to testify at trial over objection. Whether this
was lawful turns on our interpretation ofRCW 5.60.060(1), the statute governing spousal privilege. RCW 5.60.060(1) provides: A spouse or domestic partner shall not be examined for or againsthis orher spouse or domestic partner, without the consent ofthe spouse or domestic partner; nor can either during marriage or during the domestic partnership or afterward, be without the consent ofthe other, examined as to any communication made by one to the other during the marriage or the domestic partnership. Butthis exception shallnotapplyto a civil action or proceeding by one against the other, norto a criminal action orproceeding for a crime committed by one against the other, nor to a criminalaction or proceedingagainsta spouse or domesticpartner if the marriage or the domesticpartnership occurredsubsequent to thefiling of formal charges against the defendant, nor to a criminal action orproceeding for a crime committed by said spouse or domestic partner against any child ofwhom said spouse or domestic partner is the parent or guardian, nor to a proceeding under chapter 70.96A, 70.96B, 71.05, or 71.09 RCW: PROVIDED, Thatthe spouse or the domestic partner ofa person soughtto be detained under chapter 70.96A, 70.96B, 71.05, or 71.09 RCW may not be compelled to testify and shall be so informed by the courtpriorto being called as a witness. (Emphasis added.) Because Mr. Nunez and his wife were married after the State filed criminal charges, the State successfully argued to the trial courtthat the above-italicized portion ofRCW 5.60.060(1) permitted compelling Mrs. Nunez'stestimony. 8No. 32374-9-111 State v. Nunez Although not identified as such by the legislature, RCW 5.60.060(1) covers two types ofspousal privilege: (1) the testimonial privilege, which prevents a spouse from testifying against the other spouse without the other spouse's consent, and (2) the confidential communications privilege, which prevents a spouse from being examined as to confidential communications made during the marriage. State v. Thornton, 119 Wn.2d 578,580,835 P.2d 216 (1992); State v. Thorne, 43 Wn.2d 47, 55,260P.2d 331 (1953). Resolution ofthe current issue turns on whetherthe restrictions on spousal privilege outlined in RCW 5.60.060(1) apply to bothtypes ofprivilege orjustthe latter. This is a matter ofstatutory interpretation, which we review de novo. State v. Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013). In construing a statute, the court's fundamental objective is to ascertain and carry out the legislature's intent. Lake v. WoodcreekHomeownersAss 'n, 169 Wn.2d 516,526,243 P.3d 1283 (2010). Common sense plays an important role in statutory interpretation. "[W]epresume the legislature does not intend absurd results and, where possible, interpret ambiguous language to avoid such absurdity." State v. Ervin, 169 Wn.2d 815, 823-24, 239 P.3d 354 (2010). Under Mr. Nunez's approach, all the restrictive clauses contained in RCW 5.60.060(1) would apply only to confidential spousal communications. This construction would renderthe listed exceptions virtually ineffective. For example, a spouse alleging
9No. 32374-9-111 

### State v. Nunez physical abuse againstherselfor a child could be kept offthe stand byherhusband unless she first obtained a divorce. However, during divorce proceedings the same spouse could also be barred from providingtestimony. Inthe current context, the restriction on privilege would only apply to the unique situation ofspouses who marry afterthe State initiates charges, then engage in pertinent confidential communications, andthen divorce priorto trial. We cannot envision the legislature intended eitherresult. ForRCW 5.60.060(1)'s restrictions to have real effect, they must apply equally to both forms of spousal privilege. Case law and commentary confirm our interpretation. In 

### Thornton, the Supreme Court analyzed the defendant's testimonial spousal privilege claim against RCW 5.60.060(1)'s restriction for spousal crime victims. The courtheldthe restriction applied and the defendant could notprohibit his wife from testifying. 

### Thornton, 119 Wn.2d at 580. While the question before the courtwas distinct from the onehere, 

### Thornton's outcome would have been different hadthe statute's limiting clauses only applied to confidential communications. Consistentwith this result, Karl Tegland's treatise on evidence provides simplythat "[t]he restrictions and exceptions to the rule of incompetency are the same as the restrictions and exceptions to theprivilege for confidential communications betweenhusband and wife." 5A KARL B. TEGLAND,
10No. 32374-9-III State v. Nunez
WASHINGTON PRACTICE: EVIDENCE §501.43 &n.1, at 213 (5th ed. 2007). The restrictive clauses set forth at RCW 5.60.060(1) undoubtedly apply to both forms ofspousal privilege. BecauseMr. Nunez and his wife were married afterthe State initiated charges, the State could compel Mrs. Nunez's testimony over objection. 

### Authentication of Jail Phone Calls Mr. Nunez claims the trial court erred in admitting the recordedjailphone calls withoutproper authentication. Because no objection was raised in the trial court, this issue has been waived. State v. Roberts, 73 Wn. App. 141, 145, 867 P.2d 697 (1994). 

### Admissibility ofGangEvidence Numerous challenges are made to the trial court's admission ofgang evidence, including whether: (1) there was a sufficientnexus between the gang evidence and the crimes charged, (2) gang evidence was properly admittedunderER404(b) and ER403, (3) the admission ofgang evidence violated Mr. Nunez's rights to be presumed innocent and to freedom ofassociation, (4) gang evidence was admitted in violation ofMr. Nunez's confrontation rights, and (5) Officer Taylor, the State's gang expert, improperly opined that Mr. Nunez's motivation for assaulting Ramiro was to benefitthe Nortefios. This court reviews a trial court's evidentiary rulings for abuse ofdiscretion. State
v. Asaeli, 150 Wn. App. 543, 573, 208 P.3d 1136 (2009). Mr. Nunez bears the burden of
11No. 32374-9-111 State v. Nunez proving the trial court abused its discretion. 

### Id. Nexus Mr. Nunez argues there was an insufficient nexus betweenthe gang evidence and the crime charged. We disagree. The State presented ample evidence ofnexus, including testimony that Mr. Nunezuttered gang slurs and boasts during both the initial fight at Washington Beefand the subsequent altercation at the Park and Ride. This was sufficient. See State v. Campbell, 78 Wn. App. 813, 822, 901 P.2d 1050 (1995). Mr. Nunez's claim that the gang-related statements attributed to him were not credible wentto weight, not admissibility. The State was entitled to prove its case. Gang evidence was central to the case and was properly admitted. 

### Character evidence Mr. Nunez also argues the gang evidence should have been excluded under ER 404(b), which prohibits the introduction ofbad character evidence. While recognizing gang evidence can sometimes be relevant for a noncharacterpurpose, such as motive, plan, or identity, Mr. Nunez claims the trial court abused its discretion in admitting gang evidence because there was no factual basis for concluding his offense was gang related. Mr. Nunez's argument fails for reasons similarto those raised in the nexus context. Under the State's theory, Mr. Nunez's crime was gang related. Although Ramiro Ruiz
12No. 32374-9-111 

### State v. Nunez

was not gang affiliated, his brother Ricardo was. The State's theory was that Mr. Nunez assaulted Ramiro at the Park and Ride in retaliation for the previous fight with Ricardo at Washington Beef. In addition, because Mr. Nunez questioned the credibility ofthe Ruiz brothers' statements thatMr. Nunez made gang-related slurs, the State was entitled to introduce corroborating evidence. This broadened the scope ofthe permissible gang evidence at trial.7 Priorto admitting the gang evidence, the trial court weighedthe probative value ofthe evidence against its prejudicial effect. The court even excluded
some ofthe State'sproposed gang evidence as too prejudicial. There was no abuse of discretion. 8 Constitutional rights Because gang evidence was properly admitted underER404(b), Mr. Nunez's constitutional objections to admission fail. 

### Dawson v. Delaware, 503 U.S. 159, 165, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992) (only when evidence ofgang membership proves
no more than a defendant's abstract beliefs does its admission violate a defendant's

7The trial court also indicated the gang evidence was admissible to prove identity. Because identity was not at issue, this basis for admission was erroneous. However, because the evidence was properly admitted to show intent and motive, there is no error. 8We do note some ofOfficer Taylor's experttestimony may have been excessive; however, it was notprejudicially so given the very strong evidence that Mr. Nunez's offense was gang related. 

### See Juarez Deleon, 185 Wn.2d at 489-91 (urging trial courts use caution when considering generalized gang evidence). 13No. 32374-9-III 

### State v. Nunez
constitutional right offreedom ofassociation). 

### Confrontation clause Mr. Nunez contends the trial court erred by admitting exhibit 30, which he claimed included testimonial hearsay. As no objection was raised in that forum, this issue has been waived. 

### State v. O'Cain, 169 Wn. App. 228,240,252,279 P.3d 926 (2012). 

### Improper opinion testimony Mr. Nunez argues OfficerTaylor improperly opined on the evidence by testifying that Mr. Nunez was motivated to assault Ramiro in orderto benefitthe Nortefios. Because this line oftestimony was elicited by defense counsel, it is invited error. We therefore decline review. 

### Sufficiency of Evidencefor GangAggravator Apart from his arguments regarding the admissibility ofgang evidence, Mr. Nunez argues the State presented insufficient evidence to supportthe gang-aggravating sentence enhancement. As discussed above, the trial record contains ample evidence that Mr. Nunez assaulted Ramiro Ruiz in orderto benefit or aggrandize the Nortefios street gang. This providedthejurya sufficientbasis for finding aggravating circumstances under RCW 9.94A.535(3)(aa). We will not disturb the verdict.

14No. 32374-9-111 State v. Nunez NonGang BadActEvidence In addition to his objections to gang evidence under ER404(b), Mr. Nunez also argues the trial court improperly admitted testimony from Mrs. Nunez indicating she had
seen him fight before and thejailphone call where he referred to his mother in a derogatory manner. We find any error in admission harmless. The testimony regarding other fights was both briefand vague. The focus ofthe recordedjail call was on Mr. Nunez's admissions ofwrongdoing, not his statements about his mother. Neither claimed
error is sufficientto overturn thejury'sverdict. 

### Jury Instructions Mr. Nunez argues the trial court erroneously instructed thejury on a less egregious level ofharm that thereby relieved the State ofits burden to prove each element offirst degree assault beyond a reasonable doubt. Although no objection was raised in the trial court, this is the type ofconstitutional error that may be raised for the first time on appeal. State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005). The instruction at issue read as follows: Great bodily harm means bodily injury that creates aprobability of death, or which causes significant serious permanent disfigurement, or that causes a significantpermanent loss or impairment ofthe function ofany bodilypart or organ. Bodily injury means physical pain or injury, illness, or an impairment ofphysical condition. 15No. 32374-9-III State v. Nunez

Clerk's Papers (CP) at 253. Mr. Nuneztakes issue withthe inclusion ofthe definition of "bodily injury." Because the instructions included definitions ofboth "greatbodily harm" and "bodily injury," Mr. Nunez argues the instructions permitted thejuryto find him guilty based on an insufficient degree ofharm. Assault in the first degree requires the State to prove intent to inflict "greatbodily harm," notjustbodily injury. RCW 9A.36.011. What Mr. Nunez fails to recognize is that thejurywas instructed first degree assaultrequired proofthat Mr. Nunez acted "with intent to inflict great bodily harm." CP at 255. The definitional instruction simply explained the meaning ofgreat bodily harm and did not lower the State's burden ofproof. Prosecutorial Misconduct Several claims are made regarding alleged prosecutorial misconduct during opening statement and summation. These include (1) improperuse ofa civil standard of proofto prove intent, (2) inappropriate name calling, (3) disparaging Mr. Nunez'strial counsel, and (4) making inflammatory arguments unsupported by facts. Prosecutorial misconduct allegations are reviewed for abuse ofdiscretion. State v. Thorgerson, 172 Wn.2d 438,460,258 P.3d 43 (2011). To succeed on aprosecutorial misconduct claim, "adefendant is required to showthat in the context ofthe record and 16No. 32374-9-III State v. Nunez
all ofthe circumstances ofthe trial, the prosecutor's conductwas both improper and prejudicial." In re Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). In orderto showprejudice, a defendant must show a substantial likelihoodthe misconduct affected thejury'sverdict. Id. Ifthe defendant fails to object at trial, the complained-oferrors are waived unless he establishes the misconduct is "so flagrant and ill intentionedthat it
causes an enduring and resulting prejudice that could nothave been neutralized by an admonition to thejury." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). 

### Burden of proof The prosecutor used the phrase res ipsa loquitur9 during summationto argue Mr. Nunez intended to cause greatbodily harm when he stabbed Ramiro in the chest. Mr. Nunez claims the State utilized this phrase to suggest it need notprove intent. We disagree. The prosecutor's argument was simplythat thejury could infer intent from Mr. Nunez's actions. This was appropriate. State v. Bea, 162 Wn. App. 570,579,254P.3d 948 (2011).

9 Res ipsa loquitur, a Latin phrase meaning '"thething speaks for itself,"' is used in civil litigation. Curtis v. Lein, 169 Wn.2d 884, 889, 239 P.3d 1078 (2010) (quoting W. PAGE KEETON, PROSSERAND KEETON ON THE LAW OF TORTS§ 39, at 243 (5th ed. 1984). The doctrine ofres ipsa loquiturrecognizes an accident may happen under circumstances that allow the occurrence itselfto circumstantially establish a defendant's prima facie negligence without further direct proof. Jackson v. CriminalJustice Training Comm 'n, 43 Wn. App. 827, 829, 720 P.2d 457 (1986). 17No. 32374-9-111 State v. Nunez 

### Name calling During opening, the prosecutor described Mr. Nunez as a "sociopath." 5 RP (Feb. 6, 2014) at 438. This commentwas entirely inappropriate. However, defense counsel objected and the trial court instructedthejuryto disregard the prosecutor's statement. This courtpresumes thejury follows the court's instructions. State v. Anderson, 153 Wn. App. 417,428,220 P.3d 1273 (2009). We will not reverse on this basis. 

### Disparaging defense counsel Mr. Nunez next argues the prosecutor committed misconduct in rebuttal by (1) telling thejury defense counsel presented arguments that were "little rabbit trails," "redherrings," and "argument falsifies" and (2) comparing defense counsel to a fictional movie villain. 10 RP (Feb. 13, 2014) at 1183, 1185. Defense counsel did not objectto these remarks. 

### It is aprosecutor's duty to use every legitimate means to bring about ajust conviction. Berger v. UnitedStates, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). A prosecutor can and should act with both "earnestness and vigor." 

### Id. Yet the prosecutor's role is also unique. The prosecutor is no ordinary advocate, butthe State's representative in court. The prosecutor must endeavorto ensurejustice for all persons, including opposing counsel and the criminally accused. Thus, while a prosecutormay
18No. 32374-9-III State v. Nunez
strike hard blows against the defense, he or she may not strike foul ones. 

### Id. Statements impugning or maligning defense counsel violate aprosecutor's ethnical code and will sometimes require reversal. State v. Lindsay, 180 Wn.2d 423,432, 326 P.3d 125 (2014). Here, the tone ofthe prosecutor's argument was aggressive, and the use ofthe phrase "argument falsifies" came close to an inappropriate allegation ofdeceptive conduct by defense counsel. However, whenviewed in context, it is apparent the thrust ofthe prosecutor's argument was to point outthat defense counsel's arguments did not seriously undermine the State's theory ofthe case or the credibility ofits witnesses. Furthermore, the analogy to Keyser Soze, a fictional antagonist from the movie The Usual Suspects, 10 was not directed at defense counsel. Instead, the prosecutorwas stating the way defense counsel described the events in question made it seem like Ramiro, the victim, was some sort ofcriminal mastermind like Keyser Soze. 

### Inflammatory arguments unsupported by 

### facts Mr. Nunez argues the prosecutor committed misconduct by arguing as follows: (1) "I'll submitto you that when [Mr. Nunez] stabbed [Ramiro] in the chest and then continued to try to stab him in the chesthe was looking for a kill shot.
...[Mr. Nunez] wanted to say to [Ramiro], 'It's all about Norte.' As he died."; (2) "Thank God it was not

10 THE USUAL SUSPECTS (MGM Studios 1995). 19No. 32374-9-111 State v. Nunez

a serious wound. Thank God this is not a murder trial. Right?"; and (3) while Ramiro
was "begging someone to call 911," Mr. Nunezwas calling fellow Nortefios to brag about whathe had done. 9 RP (Feb. 12, 2014) at 1137, 1150; 10 RP (Feb. 13, 2014) at 1188. Mr. Nunez did not objectto any ofthese remarks. Theprosecutor has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Mil/ante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995). When reviewing aprosecutor's summation for error, we must look atthe context ofthe entire case, including the evidence presented, defense counsel's arguments, and the court's instructions. Russell, 125 Wn.2d at 85-86. A defendant's "failureto objectto an improperremark constitutes a waiver oferrorunless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to thejury." Id. at 86. Mr. Nunez has not satisfied the difficult burden ofovercoming waiver. Our review ofthe record indicates the prosecutor's remarks had at least some evidentiary basis. The prosecutor was treading in dangerous waters when he made comments to the effect, "[t]hank God this is not a murdertrial." 10 RP (Feb. 13, 2014) at 1188. However, the substance ofthis remark was fair, given the minor nature ofthe injuries ultimately sustained by Ramiro Ruiz. Any improper appeals to God orreligion could have been
20No. 32374-9-111 State v. Nunez
addressed through a curative instruction. See, e.g. Levingston v. State, 651 S.W.2d 319, 322 (Tex. App. Dallas 1983). 

### IneffectiveAssistance ofCounsel Lastly, Mr. Nunez contends his defense counsel was ineffective for failing to objectto bad acts evidence, eliciting improper opinion testimony from OfficerTaylor, and failing to objectto all instances ofalleged prosecutorial misconduct. He asserts that without the improperpropensity evidence, the improper gang evidence, the improper guilty by association evidence, and the prosecutorial misconduct, there is a reasonable probability he would have had a differentresult at trial. The Sixth Amendmentto the United States Constitution guarantees a criminal defendant the right to effective assistance ofcounsel. Stricklandv. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance ofcounsel, a defendant must show: (1) defense counsel's representation was deficient, i.e., it fell below an objective standard ofreasonableness based on consideration ofall the circumstances; and (2) defense counsel's deficient representationprejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result ofthe proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland, 466 U.S. at 687. "Areasonable probability is a probability sufficientto undermine confidence in 21No. 32374-9-III State v. Nunez
the outcome." Strickland, 466 U.S. at 694. Washington courts stronglypresume counsel's representation was effective. McFarland, 127 Wn.2d at 335. Deficient performance is not shown by matters relating to trial strategy or tactics, and courts are hesitant to find ineffective assistance ofcounsel where those tactics are unsuccessful. See State v. Sardinia, 42 Wn. App. 533,542, 713 P.2d 122 (1986) (giving defense counsel wide latitude in making tactical decisions). 

### Failure to object to bad acts evidence Mr. Nunez's argument regarding this alleged deficientperformance is unclear. Defense counsel objected to all ofthe gang evidence, to his wife's testimony about previously seeing him fight, 11 and to thejailphone calls on ER404(b) grounds. As such, it cannot be saidthat defense counsel's representation was deficient. 

### Eliciting improper opinion testimony As discussed previously, defense counsel did invite errorby eliciting Officer Taylor's improper opinion. However, from the record before us this appears to have been

11 As the State points out in its brief, Mr. Nunez's defense counsel's objectionto his wife's propensitytestimony was untimely in the sense that defense counsel did not object until the State asked Mrs. Nunez how many times she had seenherhusband fight. At thatpoint, defense counsel successfully objected on ER404(b) grounds. However, at that time, defense counsel could have argued that Mrs. Nunez'sprevious commentbe stricken. Notrequesting a limiting instruction canbe a legitimate trial tactic to avoid reemphasizing damaging evidence. Yarbrough, 151 Wn. App. at 90. 22No. 32374-9-III State v. Nunez

a legitimate trial tactic. Defense counsel was attempting to get OfficerTaylorto state Mr. Nunez had not done any work for the Nortefios. Had defense counsel been successful in eliciting this testimony, he would have stronger support for his argumentthe assault was not gang related. 

### Failure to object toprosecutori.al misconduct The majority ofMr. Nunez's claimed errors have not been demonstratedto be misconduct. Thus, trial counsel was not ineffective for failing to object. Tothe extent that theprosecutor may have been overly zealous at times, there has been no showing of prejudice. CONCLUSION Based on the foregoing, we affirmthejudgment and sentence ofthe trial court. A majority ofthepanel has determinedthis opinion will notbe printed inthe WashingtonAppellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Pennell, 

### J. I CONCUR:
Fearing, C.J. 23No. 32374-9-III LAWRENCE-BERREY, J. (concurring)- Convictions must always be based on proper evidence and argument. Judges enforce rules ofevidence and argument because
our system desires to punish only the guilty. The line betweenproperzealous advocacy and improper overzealous advocacy is thin and sometimes meandering. Well-intentionedprosecutors canbecome overzealous by seeking to admit bad evidence and by making inappropriate arguments, with the laudable goal ofmaking our communities safer. Where trial error occurs butthe evidence to sustain a conviction is compelling, we affirm by a harmless error analysis. But where trial error occurs and the evidence to sustain a conviction is not compelling, we reverse. This is how we assure that convictions are based only on proper evidence. We encourage elected prosecutors to thoroughly train their deputy prosecutors so they do not cross this thin and potentially meandering line, and thus incur the expense of
a secondtrial. Although adherence to the rules ofevidence andproper argument might cause a few to escapejustice, these requirements distinguish our government from governments

### No. 32374-9-III State v. Nunez
that too often punish the innocent. Our system of justice is notperfect. Butwhen it works properly, our system is unequaled.

Lawrence-Berrey, J. 

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