Opinion
No. 92870–3
11-02-2016
In re the Personal Restraint of Reycel Perez–Martinez, Petitioner.
ORDER
¶ 1 Reycel Perez-Martinez timely filed a personal restraint petition in Division II of the Court of Appeals challenging his conviction for first degree assault. Finding the petition improperly successive in that court under RCW 10.73.140, the court transferred the petition to this court. Department II of the court, composed of Chief Justice Madsen and Justices Owens, Stephens, González, and Yu, considered Mr. Perez-Martinez's personal restraint petition at its November 1, 2016, Motion Calendar, and unanimously agreed on the following disposition.
¶ 2 Mr. Perez-Martinez argues first that the trial court erred in allowing the deliberating jury to review a surveillance video, outside the presence of the court and counsel, that had been played at trial showing him entering and leaving the residence where the shooting underlying the charge against him had occurred. But Mr. Perez-Martinez did not object to this procedure at trial, and he does not demonstrate, as he must on collateral review, either that he was actually and substantially prejudiced by constitutional error or that the procedure constituted a fundamental defect that inherently resulted in complete miscarriage of justice. See In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013).
¶ 3 Mr. Perez-Martinez also contends that the prosecutor committed misconduct during closing argument by expressing her personal opinion that the surveillance video showed that Mr. Perez-Martinez had a firearm, and by personally vouching for the credibility of the victim and his wife. But Mr. Perez-Martinez did not object to the prosecutor's remarks regarding the video, and he does not show that, even if the remarks were improper, they were so flagrant and ill-intentioned that any prejudice could not have been cured by an instruction to the jury. Mr. Perez-Martinez therefore waived any objection. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). As for the claim that the prosecutor improperly vouched for the victim's credibility, the Court of Appeals determined in Mr. Perez-Martinez's direct appeal that he waived this claim by not objecting at trial. Mr. Perez-Martinez does not show that the interests of justice require reconsideration of this issue. Yates, 177 Wn.2d at 17. And the prosecutor did not improperly vouch for the credibility of the victim's wife but merely highlighted the favorability of her testimony to the State.
¶ 4 Mr. Perez-Martinez next argues that his trial counsel was ineffective in not objecting to the claimed prosecutorial misconduct addressed above. To prevail on this argument, Mr. Perez-Martinez must show both that counsel's conduct fell below a professional standard of reasonableness and that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). As indicated, the prosecutor committed no objectionable misconduct in relation to the testimony of the victim's wife. As to the other claimed instances of misconduct, it is not necessary to address whether defense counsel should have objected because Mr. Perez-Martinez does not show that if counsel had objected there is a reasonable probability the outcome would have been different.
¶ 5 Finally, Mr. Perez-Martinez moves to file a supplemental brief raising additional claims, including that the State violated its obligation to disclose material exculpatory evidence, that the prosecutor committed other instances of misconduct, that defense counsel was ineffective in other ways, and that his interpreter was inadequate. Mr. Perez-Martinez filed this supplemental brief beyond the one-year time limit on collateral review under RCW 10.73.090(1), and the asserted grounds for relief are not exempt from the time under RCW 10.73.100. The supplemental brief is therefore untimely and may not be considered. In re Pers. Restraint of Haghighi, 178 Wn.2d 435, 446, 309 P.3d 459 (2013). Accordingly,
¶ 6 IT IS ORDERED:
¶ 7 That the Motion to File a Supplemental Brief is denied and the Petitioner's Personal Restraint Petition is dismissed.
For the Court
/s/ Madsen, C.J. CHIEF JUSTICE