State Of Washington, Respondent/cr-appellant V. Hud A. Berlin, Appellant/cr-respondent

2053a?:- 2/ 	u 113=07
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
HUD ANTHONY BERLIN,
Appellant.
No. 71546-1-1
DIVISION ONE
UNPUBLISHED OPINION
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.

No. 71546-1-1/3
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 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal
quotation marks omitted) (quoting State v. Maqers, 164 Wn.2d 174, 191, 189
P.3d 126 (2008)).
2 State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
3 Emery, 174 Wn.2d at 761 (quoting Thorqerson. 172 Wn.2d at 455).
4 State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011).
5 Monday, 171 Wn.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 Wn.2d at 676.
7 State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213(1984).
8 RCW 46.61.024(1).
9 State v. Warren, 165 Wn.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 Wn. App. 549, 554, 249 P.3d 188 (2011); see also
State v. Mather. 28 Wn. App. 700, 702, 626 P.2d 44 (1981).
11 State v. Warren. 165 Wn.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 Wn.2d 424, 434, 158 P.3d 54 (2007).
13 State v. McFarland. 127 Wn.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 Wn. App. 71, 77, 895 P.2d 423 (1995) (quoting
State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989)).
16 State v. Brousseau. 172 Wn.2d 331, 352, 259 P.3d 209 (2011).
17 Neidiqh. 78 Wn. App. at 79.
18 RCW 46.61.024; Flora. 160 Wn. App. at 554; Mather. 28 Wn. 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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