In re Perez-Martinez

• Decision Date: 02 November 2016
• Docket Number: No. 92870–3,92870–3
• Citation: 383 P.3d 1029 (Table)
• Court: Washington Supreme Court
• Parties: In re the Personal Restraint of Reycel Perez–Martinez, Petitioner.

383 P.3d 1029 (Table)

In re the Personal Restraint of Reycel Perez–Martinez, Petitioner.

No. 92870–3

Supreme Court of Washington.

DATED at Olympia, Washington, November 2, 2016.

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...