State Of Washington, Respondent V. James Allen Sweet, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON 	r;
f...— 	\
STATE OF WASHINGTON,
Respondent,
v.
JAMES ALLEN SWEET,
Appellant.
No. 72732-0-1 	uo
DIVISION ONE 	tz
UNPUBLISHED OPINION
FILED: 	January 19, 2016
Leach, J. — James Sweet appeals his conviction for assault in the first
degree with a 	deadly weapon 	enhancement. 	He contends the 	prosecutor's
closing argument that shifted the State's burden constituted misconduct violating
his right to a fair trial. And he alleges that his counsel was ineffective for failing to
object to this argument. 	Because Sweet does not show prejudice from either the
prosecutor's comments or defense counsel's failure to object to them, we affirm.
Background
In August 2013, James Sweet, 21, began corresponding on social media
and 	via 	text 	message 	with 	Heather 	Brickell. 	The 	night 	before 	Brickell's
eighteenth birthday, 	she invited Sweet to a 	party at 	her aunt's house. 	After
arriving at the house, Sweet and Brickell went outside to a fire pit on the property.
Brickell 	introduced 	Sweet to 	her 	14-year-old 	cousin, 	J.R. 	Brickell's 	brother
Steven was also present. 	The group sat in chairs around the fire.
CO
sr

No. 72732-0-1 / 2
Sweet commented that the fire was small. 	J.R. responded that it would be
bigger 	if 	they 	threw 	Sweet 	onto 	it. 	Sweet 	became 	"serious" 	and 	angry,
repeatedly asking J.R. why he made the comment even after J.R. told him he
was joking. 	Sweet then went to J.R. and knocked J.R.'s hat off his head. 	J.R.
stood up, and a brief struggle ensued. 	J.R. and Sweet then sat back down.
After Sweet 	and 	Brickell 	retrieved 	Sweet's 	backpack 	from 	Brickell's
mother's car, Sweet began smoking some marijuana he had brought with him.
He offered his pipe to the others, butthey told him they didn't use drugs.
A short while 	later, Sweet said something like, 	"Don't mess with 	us
Juggalos." 	"Juggalos" are fans of a particular musical group whose members
wear face paint. 	J.R. laughed and asked Sweet if he meant "those guys who
wear makeup." 	Sweet "thought it was time to fight," so he stood up again and
approached J.R. 	Witnesses gave differing accounts about whether a shoving
match started at that point and, if so, who started it. 	But within a few seconds,
Sweet pulled out a knife and stabbed J.R. in the side. 	Sweet began apologizing
and asking if he could help, following J.R. as he walked toward the house. 	After
J.R.'s oldest brother warned Sweet off with a gun, Sweet left.
Emergency 	personnel 	took 	J.R. 	to Harborview 	hospital. 	Exploratory
surgery revealed that a stab wound, one to one-and-a-half inches wide by three
inches long, had penetrated the abdominal wall and caused minor damage to the
liver.

No. 72732-0-1 / 3
Several days after the incident, Sweet turned himself in to police. 	The
State 	charged 	him 	with 	assault 	in 	the 	first 	degree 	with 	a 	deadly 	weapon
enhancement.
At trial, the court instructed the jury on self-defense, one of the defenses
Sweet raised. 	During closing argument, the prosecutor discussed the lawfulness
of Sweet's use of force:
Was it lawful, or was it unlawful? 	Because if it is unlawful, then it is
an assault. If it is lawful, then it is not. 	So was his use of force
lawful is the question.
. . . When 	is 	it 	lawful? 	And 	the 	instructions 	tell 	you.
Instruction Nos. 12 through 16 lay out for you when the use of force
is 	lawful—when 	it 	is 	allowed. 	And 	in 	synthesizing 	those
instructions, there are several main points to take away. 	First, the
presumption is that the use of force is unlawful. 	Because unless it
fits 	within 	those 	definitions, 	the 	presumption 	is 	unlawful. 	It
becomes lawful if the person using force is not the first aggressor;
the 	person 	using 	force 	subjectively believes 	he 	is about to 	be
injured and that belief is objectively reasonable; the force used is
being 	used 	to 	prevent an 	offense 	against the 	person; 	and 	the
amount of force is no more than necessary.
The 	prosecutor also argued that Sweet was not entitled to argue self-
defense because he had not proved that J.R. was actually committing an assault
on him at the time of the stabbing:
[J.R.] wasn't making any actual attempt at that point to commit an
offense against him. 	And that's a 	requirement for lawful force.
Even if you accept this claim that [J.R.j's statement about throwing
him in the fire was a threat. 	And that [J.R.j's actions at the end of
the first scuffle constituted a threat. 	That is not enough. What has
to be there is that there was some intent to commit an offense at
the time that the defendant stabbed him. 	That is not here, either.
Because remember, what the defendant himself admits happened,
they were both 	sitting down. 	[J.R.] wasn't even talking to him.
They are 10 feet apart, and there is a person in between them.
And it is the defendant who gets up and goes over towards [J.R.],

No. 72732-0-1/4
not the other way around. There is just no evidence to suggest that
[J.R.] was committing or about [to] commit an assault or an offense
against the defendant. 	And that means that his use of force was
not lawful.
Defense counsel made no objection to either argument.
The jury convicted Sweet as charged. 	Sweet appeals.
Analysis
Prosecutorial Misconduct
Sweet asserts that two instances of prosecutorial misconduct violated his
due process right to a fair trial. 	To establish a claim of prosecutorial misconduct,
he must show that the conduct was both improper and prejudicial.1 	Because he
did not object to the alleged misconduct at trial, Sweet must also show it was so
flagrant and ill intentioned that it caused prejudice incurable by a proper jury
instruction.2 	Prejudice 	occurs 	only 	if "'there 	is a substantial 	likelihood 	the
misconduct affected the jury's verdict.'"3 	We review misconduct claims in the
context of the total argument, the evidence addressed, the issues in the case,
and the jury instructions.4
First, 	Sweet alleges that by arguing 	that Sweet's 	use of force 	was
presumed to be unlawful, the prosecutor improperly shifted the burden of proof to
the defense and misstated the law. 	To be entitled to a jury instruction on self-
defense, a defendant must present some evidence of self-defense. 	At that point,
1 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (quoting
State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009)).
2 State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
3 Monday, 171 Wn.2d at 675 (internal quotation marks omitted) (quoting
State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007)).
4 State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
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No. 72732-0-1 / 5
the burden shifts to the prosecution to rebut the presumption of lawfulness and
prove the absence of self-defense beyond a reasonable doubt.5
Here, the State concedes that the prosecutor misstated the burden of
proof by stating that the use of force in self-defense is presumed unlawful. 	We
accept the State's concession. 	But the State argues that because Sweet did not
object and 	because this 	misstatement was 	brief, not 	repeated, 	and "not an
inflammatory type of error," Sweet has waived this claim. We agree.
Sweet relies heavily on State v. McCreven,6 in which Division Two of this
court 	held 	that 	a 	prosecutor's 	statements 	misstating 	the 	State's 	burden 	to
disprove self-defense were not harmless. 	We distinguish McCreven. 	As Sweet
notes, the court's reversal of the defendants' convictions in that case was based
only 	in 	part 	on 	the 	prosecutor's 	improper 	burden-shifting 	comments. 	In
McCreven, the court's written instructions to the jury also misstated the State's
burden, stating that the defendants had "the burden of proving this defense by a
preponderance of the evidence."7 	During rebuttal, the prosecutor repeated this
burden-shifting 	argument, 	and the trial 	court 	overruled 	defense objections.8
Division Two concluded, "Because we hold that the self-defense jury instructions
impermissibly lowered the State's burden to disprove self-defense, we cannot
hold that the prosecutor's misstatements were harmless when viewed 	in the
5 State v. Walden. 131 Wn.2d 469, 473-74, 932 P.2d 1237 (1997).
6 170 Wn. App. 444, 471, 284 P.3d 793 (2012).
7 McCreven, 170 Wn. App. at 464.
8 McCreven, 170 Wn. App. at 469-71.

No. 72732-0-1 / 6
context of the entire case."9 	Here, by contrast, Sweet does not dispute that the
court's written instructions correctly stated the law. 	And the trial court instructed
Sweet's 	jury 	orally 	and 	in writing 	that 	they 	must 	disregard 	argument 	that
conflicted with the law they received in the court's instructions.
Similarly, Sweet's reliance on State v. Walker10 is misplaced. 	Conflicting
testimony made that case "largely a credibility contest, in which the prosecutor's
improper arguments could easily serve as the deciding factor."11 	Moreover, the
prosecutor not only misstated the standard for a 	self-defense claim but also
made 	several 	other 	improper 	arguments.12 	Division 	Two 	noted 	the 	many
disputed facts, "the frequent use and repetition of improper statements," and the
emphasis of these statements 	by the 	use of 	PowerPoint slides. 	The court
concluded that further instruction by the trial court would likely not have cured the
resulting 	prejudice 	and 	there 	was 	a 	"substantial 	likelihood" the 	prosecutor's
comments affected the jury's verdict.13 	Here, by contrast, the misstatement at
issue 	amounted 	to 	a 	few 	sentences 	supporting 	one 	erroneous 	argument.
Although the parties disputed Sweet's claim of self-defense, they did not dispute
the basic facts of the altercation and stabbing. 	And the prosecutor made the
comments in the context of proper instructions and otherwise correct statements
of the law.
9 McCreven, 170 Wn. App. at 471.
10 164 Wn. App. 724, 265 P.3d 191 (2011).
11 Walker, 164 Wn. App. at 738.
12 Walker, 164 Wn. App. at 729.
13 Walker, 164 Wn. App. at 738-39.

No. 72732-0-1 / 7
Sweet also contends that the prosecutor misstated the law by arguing that
Sweet could not assert self-defense unless J.R. was in the process of assaulting
Sweet at the time 	of the stabbing. 	In Washington, a defendant may use deadly
force when he or she "reasonably believes he or she is threatened with death or
'great 	personal 	injury.'"14 	Here, 	the 	prosecutor's 	assertion 	contradicted 	the
court's instructions, which allowed self-defense upon a defendant's reasonable
belief that injury is imminent:
A person 	is entitled to 	act on 	appearances 	in defending
himself, if he believes in good faith and on reasonable grounds that
he is in actual danger of injury, although it afterwards might develop
that the person was mistaken as to the extent of the danger. 	Actual
danger is not necessary for the use of force to be lawful.
The prosecutor's argument improperly shifted the burden to the defense
to 	produce 	evidence 	of 	more 	than 	a 	reasonable 	belief of 	imminent 	injury.
However, Sweet did not object to the comments, and here again, he fails to show
that an appropriate jury instruction would not have cured any prejudice created
by the argument.
As the McCreven court noted, we presume that juries follow the court's
instructions.15 	In the 	overall 	context 	of 	the 	total 	argument, 	the 	evidence
addressed, the issues in the case, and the jury instructions, the prosecutor's
improper 	comments 	did 	not 	prevent the 	correct 	legal 	standard 	from 	being
"manifestly apparent to the average juror."16 	Our Supreme Court recently held
14 Wajden, 131 Wn.2d at 474; RCW9A. 16.050(1).
15 McCreven, 170 Wn. App. at 471.
16 Walden, 131 Wn.2d at 473.

No. 72732-0-1 / 8
that the trial court's "correct instructions given throughout the case cured any
potential 	prejudice 	that could 	have 	possibly 	arisen" 	from 	isolated 	improper
remarks, even from the trial court itself.17 Given the trial court's proper instruction
here, Sweet's argument that the prosecutor's misconduct "was so pervasively
prejudicial that no instruction could have cured the prejudicial effect" does not
persuade us.
Ineffective Assistance of Counsel
Sweet alleges defense counsel provided ineffective assistance by failing
to object to the prosecutor's improper comments, violating Sweet's right to a fair
trial. 	To prevail on a claim of ineffective assistance, Sweet must show (1) his
attorney's representation fell below an objective standard of reasonableness and
(2) resulting prejudice, that is, a reasonable probability that the result of the trial
would have been different absent the deficient performance.18 	The reviewing
court strongly presumes that counsel's conduct constituted sound trial strategy.19
If one of the two prongs of the test is absent, we need not inquire further.20
Sweet asserts that "there could be no legitimate trial strategy in failing to
object... to 	the 	prosecutor's 	improper 	closing 	argument, 	which 	shifted 	the
burden of proof on self-defense and imposed an additional requirement upon
Sweet that the law did not." 	But because he fails to show that the argument itself
17 State v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015).
is Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
is in re Pers. Restraint of Rice, 118 Wn.2d 876, 888-89, 828 P.2d 1086
(1992) (citing Strickland, 466 U.S. at 689).
20 Strickland, 466 U.S. at 697.
-8-

No. 72732-0-1 / 9
prejudiced him, he does not show prejudice from defense counsel's failure to
object to it.
Conclusion
The 	prosecutor's comments during closing argument improperly shifted
the State's burden to disprove self-defense. 	But because Sweet did not object
and 	does 	not 	show 	that 	these 	misstatements 	were 	incurable 	by 	proper
instruction, he does not show prosecutorial misconduct. 	And because he does
not show prejudice from these statements, his attorney's failure to object does
not support a claim for ineffective assistance of counsel. We affirm.
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WE CONCUR:
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