State Of Washington v. Christopher W. Newlen Aka Clifton Newlen, 48060-3

Background

Neighbor dispute over property line and a long-standing chain-link fence; Newlen (74, uses cane) began cutting the fence while buyers Brissett and seller Hug were present.
Hug confronted Newlen at the fence; Hug pushed bolt cutters off the fence; Newlen then struck Hug with the bolt cutters, fracturing ribs.
Brissett and Hug testified for the State; Sergeant Cory Huffine investigated, took statements, photographed and seized the bolt cutters, and arrested Newlen.
Newlen testified the contact was accidental during a struggle over the cutters and that he had signed, but not written, a statement to the officer.
Jury convicted Newlen of second degree assault; appeal raises prosecutorial misconduct claims (various closing comments and elicited testimony), ineffective assistance for failing to object, and a request to waive appellate costs.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Newlen)	Held
Prosecutorial misconduct — reference to “evidence rules” / missing evidence	Comment explained limits of admissible testimony; justifying why jury didn't hear full interview, not asserting omitted evidence favored prosecution	Prosecutor implied there was additional evidence jurors were not allowed to hear that supported the State	Not reversible; any implication cured by jury instruction that argument is not evidence and only admitted evidence controls
Prosecutorial misconduct — eliciting opinion from officer (arrest testimony)	Questioning described investigation (what he did after statement); not asking officer to opine on guilt	Testimony that officer arrested defendant implied officer found complainants credible and vouched for guilt	No misconduct: officer described actions (arrest) and did not give opinion on guilt; context made opinion unlikely
Prosecutorial misconduct — burden of proof / property line comments	Not shifting burden; argued absence of survey made Newlen’s account less believable in context; case not about property ownership	Statements suggested prosecution required no proof on property line or shifted burden to defendant	Not improper; State did not require Newlen to prove boundary and repeatedly stated case not about property line
Prosecutorial misconduct — “choose who’s lying” / truth arguments	Emphasized credibility and resolving competing versions of events; proper role for jury to weigh testimony	Misstated jury’s role by asking jurors to find the “truth” rather than whether State met burden beyond reasonable doubt	Not improper in context; arguments concerned credibility and were responsive to defense attack on witnesses’ bias
Ineffective assistance for failure to object	No objection necessary because arguments/testimony were proper or curable by instruction	Counsel unreasonably failed to preserve objections to prejudicial misconduct	Fails: either no misconduct occurred or any error would have been cured by instruction; no reasonable probability of different result
Appellate costs waiver request	RAP 14.2 permits commissioner to award costs; State may file cost bill	Newlen asked waiver and challenged approach in Sinclair	Court did not waive; left appellate cost determination to commissioner under amended RAP 14.2

Key Cases Cited

State v. Yates, 161 Wn.2d 714 (standard for prosecutorial misconduct review)
State v. Emery, 174 Wn.2d 741 (heightened standard when no contemporaneous objection)
State v. Thorgerson, 172 Wn.2d 438 (curative-instruction analysis)
State v. Kirkman, 159 Wn.2d 918 (inadmissible opinion testimony on guilt)
State v. Ish, 170 Wn.2d 189 (vouching by reference to evidence not presented)
State v. Demery, 144 Wn.2d 753 (factors for evaluating opinion testimony)
State v. Thomas, 109 Wn.2d 222 (ineffective assistance standard)
State v. Grier, 171 Wn.2d 17 (deference to counsel’s strategic decisions)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
State v. Wright, 76 Wn. App. 811 (impropriety of framing jury task as simply choosing who lies)
State v. Anderson, 153 Wn. App. 417 (jury’s role is to assess whether the State met its burden)
State v. Fleming, 83 Wn. App. 209 (misstating burden of proof is prosecutorial misconduct)
State v. Beasley, 126 Wn. App. 670 (no reason to object where no misconduct occurred)