                                                                                         FILED
                                                                                  GOURT OF APPEALS
                                                                                        DIVISM, 11

                                                                                 2013 APP -2 AM 8:46
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                 STATE OF WASHMGTOti
                                                 DIVISION II                      BY-
                                                                                          DEr UT`
STATE OF WASHINGTON                                                            No. 41347 7 II
                                                                                         - -


                                 Respondent/
                             Cross -Appellant,

       V.




LARRY EDWARD TARRER,                                                    UNPUBLISHED OPINION


                                   Appellant /
                          Cross -Respondent.



       JOHANSON, A. .
                 J.
                  C                In —
                                      2010, a Pierce County jury convicted Larry Edward Tarrer of

first degree murder, attempted first degree murder, and first degree manslaughter for a 1991

shooting. Tarrer appeals, claiming (1)various evidentiary errors, 2)
                                                                  ( prosecutorial misconduct, .

3)sentencing errors, and (4)ineffective assistance. We reverse and remand because multiple

episodes    of   prosecutorial   misconduct      deprived   Tarrer of   a   fair trial. In addition, we address


evidentiary issues that may      arise   on   retrial.'

                                                          FACTS


       In January 1991, Claudia McCorvey was six months pregnant and living in a Tillicum

apartment. McCorvey's apartment was a known crack house where cocaine addicts and dealers




1 We received supplemental briefing regarding sentencing issues. Because we reverse Tarrer's
conviction and sentence, and remand for retrial, we decline to address those issues here.
Similarly, we do not reach the State's cross appeal because it, too, is moot once we reverse
                                                                      -
Tarrer's conviction.
No. 41347 7 II
          - -



could obtain and smoke cocaine. Tarrer was a 17- old small time cocaine dealer and Bishop
                                               year -       -

Asia Johns was his supplier.

         On January 8, Johns was dealing drugs out of McCorvey's apartment, and that evening

McCorvey, Johns, Lavern Simpkins, and others smoked cocaine there into the morning. That

evening, Rickey Owens had visited McCorvey's apartment to obtain cocaine. On the way back

to his car, Owens heard a commotion and turned back toward the apartment and saw a man pull a

silver pistol from a car parked outside.

         Just before 1:0 AM, Simpkins and McCorvey were the only people still at McCorvey's
                      0

apartment when someone opened the front door and fired multiple shots into the unit. Two shots

killed Simpkins, and two more struck McCorvey, rendering her a paraplegic. Medics transported

McCorvey to the hospital where doctors performed an emergency cesarean section and removed

her live baby. The baby's condition, however, rapidly deteriorated and soon died.

         Authorities recovered .45 caliber shell casings and slugs from the apartment. Authorities

also found a Tanqueray gin bottle in the apartment with Tarrer's fingerprints on it.

         On January 9, Pierce County Sheriff's Detective Fred Reinicke visited McCorvey at the

hospital and showed her a six -picture photo montage of McCorvey's acquaintances. Detective
Reinicke showed McCorvey each of the six pictures, one at a time, and McCorvey identified
Tarrer as her shooter.




2 Known as "Slim"during that time. Verbatim Report of Proceedings (VRP)Sept. 29 30,2010)
                                                                        (       -
at 12.



                                                 2
No. 41347 7 II
          - -




         Detective Reinicke returned to the hospital to speak with McCorvey on January 11. He

took McCorvey's statement and again showed her the photo montageshe again identified
                                                                —

Tarrer as her shooter.


         On February 12, Detective Reinicke showed Owens the same photo montage he showed

McCorvey. Owens identified Tarrer as the man with the gun outside the apartments on the night

of the shooting.

         In   1991, Tarrer entered   an   AlfordlNewton plea to amended charges of second degree
murder and first degree assault.' In 2004, while serving his sentence, he successfully filed a CrR
7. motion to vacate his conviction.
 8                                             The State then withdrew the May 1991 amended

information.


         In 2009, the State filed a corrected information charging Tarrer with premeditated first

degree murder, attempted first degree murder, and first degree manslaughter. It also added three

sentencing aggravators to the attempted first degree murder charge.

         Before the 2009 trial, Tarrer moved to dismiss the case or to.suppress McCorvey's

identification of Tarrer in the photo montage because the State provided Tarrer just three of the

six photos used in the January 9, 1991 photo montage with McCorvey, and just four of the six

photos   used in the   January 11, 1991 montage. He also filed a motion to suppress Tarrer's


3
    North Carolina v. Alford, 400 U. .25, 91 S. Ct. 160, 27 L.Ed 2d 162 (1970);
                                   S                                          State v. Newton,
87 Wn. d 363, 552 P. d 682 (
     2             2       1976).

  Tarrer then unsuccessfully moved to withdraw his plea. He appealed the denial of his motion
to withdraw his plea, and we affirmed. State v. Tarrer, 140 Wn. App. 166, 165 P. d 35 (2007).
                                                                                3
Tarrer also appealed the trial court's order vacating his conviction under CrR 7. because he
                                                                                8
sought specific performance of the original plea agreement. We dismissed the appeal,because
Tarrer was not aggrievedhe prevailed in vacating his convictions.
                         —


                                                    3
No. 41347 7 II
          - -




identification by McCorvey and Owens because Detective Reinicke used unreliable photo

montage procedures. The trial court denied these motions.

       The   case   went to trial in   September   and October 2009.   During trial, Tarrer moved to

admit McCorvey's medical records from her treatment at .Harborview Medical Center in order to

show which of McCorvey's bullet wounds were entrance or exit points. The trial court denied

this motion because the records constituted inadmissible hearsay. This trial resulted in a mistrial.

       The State retried the     case   in   September   and October 2010.   After jury selection, but

before the trial began, local news outlets carried stories about how Tarrera Muslimand
                                                                           —       —

another inmate had sued the Pierce County Jail and the Pierce County Sheriff's Department for

religious discrimination. Although two jurors admitted seeing the story, the trial court declined
to dismiss them.


       At trial, witnesses offered varying accounts of what they could recall from the 1991

incident.   The State called Johns, Owens, and McCorvey to offer their accounts. A neighbor,

Monte Moore, and Tarrer testified in Tarrer's defense.

        Johns testified that he went to McCorvey's apartment on January 8, 1991, to smoke

cocaine. The apartment was full of people partying and smoking cocaine. Tarrer arrived after

Johns, and while Johns, McCorvey, and Simpkins sat in the back bedroom smoking cocaine,

Tarrer walked into the back bedroom to speak with McCorvey. Tarrer and McCorvey retreated




5
 The front page news article in the Tacoma News Tribune, pictured "TARRER"and a headline,
Jail limits religion, lawsuit suggests." Clerk's Papers (CP)at 550. The lead paragraph read,
Two followers of Islam are suing Pierce County, claiming Muslims are prohibited from
practicing their religion appropriately while incarcerated in the county jail." at 550.
                                                                              CP

                                                     4
No.41347 7 II
         - -




to the bathroom to speak privately, and Johns learned from McCorvey that Tarrer mentioned

some   missing cocaine. Later, Johns left the apartment, and McCorvey, Simpkins, Tarrer, and

another remained. As Johns walked from McCorvey's apartment, he heard gunfire coming from

inside, though he did not witness the shooting.

        Owens testified that at the time of the shooting, he was also a cocaine addict. He had

heard that he could acquire drugs from Tarrer at McCorvey's apartment, so he went to

McCorvey's around 8:0 to 9:0 Pm. Owens claimed that he traded Tarrer a bottle of Tanqueray
                   0      0

gin for a $ cocaine rock and immediately left. As he left, though, he witnessed Tarrer become
          20

accusatory, claiming   someone    stole his   drugs. Though he saw Tarrer retrieve a silver, semi-

automatic pistol from a green and white two door Cutlass, he, did not witness the shooting.
                                            -

        McCorvey explained that she      was   in her bedroom that   evening smoking cocaine.    She


stated that Tarrer never came into the bedroom to speak with her about missing drugs, though

eventually Tarrer became "loud and rude and obnoxious" and Johns ordered him to leave.

Verbatim Report of Proceedings (VRP)Oct.4,2010)at 23. She believed that Tarrer was drunk
                                    (

and upset because he lost his drug "canister." VRP (Oct. 4, 2010) at 24..
                                                                        Tarrer left, as did

others, and, soon only McCorvey and Simpkins remained. Later, when McCorvey went into her

front room, the front door opened, and the shooter stepped inside and fired multiple shots in the

apartment. McCorvey recognized Tarrer as the shooter.

        Moore lived    across   from McCorvey in    an   adjacent apartment. He testified that on the

night of the shooting, he heard a commotion from McCorvey's apartment and a male voice

yelling, then three gunshots.      He looked out his window and saw four men walk out of


McCorvey's apartment; the last man out stepped back into the apartment, and with his right


                                                    5
No. 41347 7 II
          - -




hand, pulled a gun from his left side and fired two more shots. The four men then departed in a

darker, four door sedan. Moore described the shooter as black, between 6 feet and 6 feet 2
             -


inches tall.


       Tarrer testified that in January 1991, he was left handed, 5 feet 7 inches, 150 pounds, and

drove a black 1983 two door Cutlass. He also asserted that he had never exchanged drugs for
                       -

alcohol or anything except money. He had twice been to McCorvey's apartment to buy drugs

from Johnsonce in 1990 and again " losely after New Year's of 1991."VRP (Oct. 7, 2010) at
          —                      c

31. At the 1991 visit, Johns answered the door but instructed Tarrer to join him in Johns's car to

do the deal. The two went to Johns's car where Johns had Tarrer hold the bottle from which

Johns had been drinking while Johns located Tarrer's drugs. Tarrer explained that he did not

know or shoot McCorvey or Simpkins.

        During closing argument, the State asked the jury to declare the truth. It argued that a
criminal trial is   supposed   to be   a   search for the truth." VRP (Oct. 11, 2010) at 8. Slides


accompanied    the State's   closing argument. The State also explained the reasonable doubt

standard to the jury using a fill in- blank argument. Tarrer unsuccessfully objected to this
                                   - the -

argument as burden shifting and asked for a curative instruction.

        The State further articulated the reasonable doubt standard by equating it to every day

scenarios. It also analogized the jury's responsibility to putting together a puzzle.

        Finally, the State compared questions of reasonable doubt to the September 11, 2001

terrorist attacks and invoked the jury's patriotism. The jury convicted Tarrer on all counts and

answered " es"to the aggravators.
         y




                                                     R
No. 41347 7 II
          - -



                                                   ANALYSIS


                                       I. PROSECUTORIAL MISCONDUCT


       Tarrer argues that the State committed misconduct during closing and rebuttal arguments

when it ( )
        1 tasked the jury with declaring the truth through its verdict, 2)
                                                                        ( used a fill in- blank
                                                                                       - the -

argument, 3)equated the reasonable doubt standard to everyday decisions, and (4)argued the
          (

reasonable doubt standard in the context of the 9/1 terrorist attacks. The State did commit
                                                 1


misconduct, depriving Tarrer of           a   fair trial.   Therefore, we reverse Tarrer's conviction and

remand for retrial.

                                  A. Standard of Review and Rules of Law


       The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth

Amendments to the United States Constitution and article I,section 3 and article I,section 22 of

the Washington Constitution. State v. Finch, 137 Wn. d 792, 843, 975 P. d 967, cent. denied,
                                                   2                  2

528   U. . 922 ( 1999).
       S                        Prosecutorial misconduct may deprive a defendant of her or his

constitutional right   to   a   fair trial.   State v. Davenport, 100 Wn. d 757, 762, 675 P. d 1213
                                                                        2                  2

1984).A fair trial requires that the State's attorney not throw the prestige of her public office
and the   expression   of her      own   belief,of guilt into the scales against the accused. State v.

Monday,    171 Wn. d 667, 677, 257 P. d 551 (
                 2                  3                           2011). The State may not use arguments

calculated to inflame the jury's passions or prejudices. State v. Brett, 126 Wn. d 136, 179, 892
                                                                               2

P. d 29 (1995),
 2            cent. denied, 516 U. . 1121 (1996).
                                 S

        To prevail on a prosecutorial misconduct claim, a defendant must show that in the

context of the record and all the trial circumstances, the State's conduct was improper and

prejudicial. State v. Thorgerson, 172 Wn. d 438, 442, 258 P. d 43 (2011).To show prejudice, a
                                        2                  3


                                                            7
No. 41347 7 II
          - -




defendant must show a substantial likelihood that the misconduct affected the jury verdict.

Thorgerson, 172 Wn. d at 442 43. If a defendant fails to object to misconduct at trial, she fails
                  2          -

to preserve the issue unless she establishes that the misconduct was so flagrant and ill intentioned

that an instruction would not have cured the prejudice. Thorgerson, 172 Wn. d at 443.
                                                                          2

       The cumulative effect of repetitive prejudicial prosecutorial misconduct may be so

flagrant that no instruction can erase their combined prejudicial effect. In re Pers. Restraint of
Glasmann, 175 Wn. d 696, 707, 286 P. d 673 (2012) quoting State v. Walker, 164 Wn. App.
                2                  3              (

724, 737, 265 P. d
               3                adhered to
                     191 ( 2011),             on   remand, noted   at      Wn. App.   ,   2013 WL


703974,   at *   1). We focus less on whether the State's misconduct was flagrant and ill

intentioned and more on whether the resulting prejudice could have been cured. State v. Emery,

174 Wn. d 741, 762, 278 P. d 653 (2012).But highly prejudicial imagery may be very difficult
      2                  3
to overcome with instruction.     Glasmann,   175 Wn. d at .707.
                                                    2                   And prejudicial imagery may

become all the more problematic when displayed in a trial's closing arguments, when the jury is

particularly aware of, and susceptible to,the arguments being presented. Glasmann, 175 Wn. d
                                                                                         2
at 707 08.
       -


        In determining whether misconduct requires reversal,.we do not decide if sufficient

evidence justifies upholding the jury verdicts. Glasmann, 175 Wn. d at 711. Rather, we decide
                                                                2
whether there is a substantial likelihood that the misconduct affected the jury's verdict. State v.

Dhaliwal, 150 Wn. d 559, 578, 79 P. d
                2                 3       432 (
                                              2003).
No. 41347 7 II
          - -



                                                       B. Analysis

                                              1. Declare the Truth Arguments

              Tarrer first argues that the State improperly tasked the jury with declaring the truth

through its verdict. Tarrer is correct that " ruth"arguments are improper.
                                            t

              A   jury's job   is not to determine the truth; a   jury                      speak the truth "'
                                                                         therefore does not "`                   or




declare the truth. "'            Emery, 174 Wn. d at 760 (quoting State v. Anderson, 153 Wn. App. 417,
                                              2

429, 220 P. d 1273 (2009),
          3              review denied, 170 Wn. d 1002 (2010)).
                                              2               Rather, a jury's job is to

determine whether the State has proved the charged offenses beyond a reasonable doubt. Emery,

174 Wn. d at 760. Ultimately, truth"statements are improper. Emery, 174 Wn. d at 760.
      2                       "                                           2

              Here, the State began its closing argument by telling jurors, A criminal trial is supposed
                                                                            "
to   be   a    search for the truth."VRP (Oct. 11, 2010) at 8. It also projected a slide image that

described the trial as "A SEARCH FOR THE TRUTH."Clerk's Papers (CP)at 661. The State

argued, B] your verdict in this case, you will be declaring the truth as to the charges in this
        "[ y
case. And you will declare the truth about whether Larry Tarrer committed [murder],attempted

murder] and manslaughter." VRP (Oct. 11, 2010) at 11. Another slide read, VERDICT"and
                                                                          "
below it read " EREDICTUM"and " O DECLARE THE TRUTH."CP at 662.
              V               T

              The State also argued, over Tarrer's unsuccessful objection, On behalf of the State of
                                                                           "

Washington and all the law abiding citizens in it[,] ask you to render a true verdict in this
                                                 I would

case."VRP (Oct. 11, 2010) at 54. It then added, I am asking you to render a true verdict in
                                                "

6
  The State argues that jurors take an oath to render a true verdict. While a state statute requires
jurors to render a true verdict in civil proceedings, see RCW 4.4.it requires no such oath in
                                                               260,4
criminal           matters.      See   also    11   WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 1.1, at 4 (3d ed. 2008) asking jurors to affirm that they will " airly
                              0                     (                                  f
try the issues in this case according to the evidence and the instructions from the court. ").

                                                             9
No. 41347 7 II
          - -




this case, the verdict that represents the truth of the charges based on the evidence that you were

presented at this trial and the law that applies." VRP (Oct. 11, 2010) at 54 55. Slides advised
                                                                             -

the jury to declare the truth. One read, BY YOUR VERDICT, YOU WILL DECLARE THE
                                         "
TRUTH AS TO THE CHARGES IN THIS CASE.                      YOU WILL DECLARE THE TRUTH

ABOUT      WHETHER         LARRY      TARRER        COMMITTED         MURDER, [ ATTEMPTED]

MURDER, AND MANSLAUGHTER."CP at 662.

       These "truth"references in the State's argument were improper, as the jury's duty is not

to declare, search for,or find the truth. Instead, the jury's role is to determine whether the State

proved its charges beyond a reasonable doubt. See Emery, 174 Wn. d at 760. Accordingly, the
                                                               2
State committed misconduct in repeatedly using these "truth"arguments, and it exacerbated its

misconduct by projecting those arguments on slide images. See Glasmann, 175 Wn. d at 707.
                                                                              2
                                  2. Fill in- Blank Arguments
                                           - the -

        Tarrer next argues that the State committed misconduct by using the so-
                                                                              called fill-n-
                                                                                     the-i
blank argument   to   shift the burden to Tarrer.   Tarrer is again correct because fill in- blank
                                                                                          - the -

arguments improperly shift the burden of proof to the defendant.

        The State bears the burden of proving its case beyond a reasonable doubt, and the

defendant bears no burden. State v. Camara, 113 Wn. d 631, 638, 781 P. d 483 (1989). By
                                                  2                  2

suggesting otherwise, a fill in- blank argument subtly shifts the burden to the defense. See
                              - the -

State v. Gregory, 158 Wn. d 759, 859 60, 147 P. d 1201 (2006) holding burden shifting to be
                        2            -        3               (
misconduct).

        Our courts have consistently held that fill in- blank arguments improperly shift the
                                                     - the -

burden of proof from the State to the defendant. See Walker, 164 Wn. App. at 731 32 ( tating on
                                                                                 - s


                                                    10
No. 41347 7 II
          - -




a slide, If you were to find the defendant not guilty, you have to say: I had a reasonable doubt'
         "                                                              `

       My    reason was ");                State v. Johnson, 158 Wn. App. 677, 682, 243 P. d 936 (2010)
                                                                                         3

To be able to find           reason   to   doubt, you have    to   fill in the blank, that's your          review
                                                                                                    job. "),

denied, 171 Wn. d 1013 (2011);
              2              State v. Venegas, 155 Wn. App. 507, 523, 228 P. d 813 ( "In
                                                                           3

order to find the defendant not guilty, you have to say to yourselves: ` doubt the defendant is
                                                                       I

guilty, and   my    reason   is'— review
                               blank. "),            denied, 170 Wn. d 1003 (2010);
                                                                   2              Anderson, 153 Wn.

App. at 431 ( "[ n order to find the defendant not guilty, you have to say `I don't believe the
              I]
defendant is guilty because,'and then you have to fill in the blank. ").

       The State offered a similar argument here, when it explained reasonable doubt,

       Reasonable doubt] means at the end of this trial, if you were to find the defendant
       not guilty and the judge releases you from your restriction about talking about this
       case and you go home and your family and friends say, hey, is that trial finally
        over and you say, yes, it is. What did you                 do[ ?] We found the defendant not
        guilty. You did? How come? Well, we                        had a reasonable doubt or I had a
        reasonable doubt and then the person says to you, W] at
                                                          [` h                   was   it[ ?] have to
                                                                                            You

        answer that question.

VRP (Oct.      11, 2010)       at   43 44.
                                       -     Tarrer unsuccessfully objected to this argument as burden

shifting and asked       for    a   curative instruction.     The State added, "[ f you were to find the
                                                                               I]

defendant not guilty and folks asked you why, you would have to explain it to them. That's what

it means: A doubt for which a reason exists."VRP (Oct. 11, 2010)at 48. Accompanying slides

explained: "WHAT IT SAYS[.] doubt for which a reason exists[.]If you were to find the
                          A

defendant not guilty, and you were asked why, you have to say `I had a reasonable doubt[.]'
What   was    the   reason   for your doubt? My
                                             `      reason was                CP at 681.


        We have consistently held that the State commits misconduct when it instructs the jury to

justify a finding of reasonable doubt with specific explanations. Here, the State explained that a


                                                         11
No. 41347 7 II
          - -




finding of reasonable doubt required a concrete explanation. And on its slide, the State expressly

employed a fill in- blank argument using visual imagery. These actions improperly shifted
                 - the -

the burden of proof to the defendant. See Gregory, 158 Wn. d at 859 60.
                                                         2          -

                                3. Reasonable Doubt in Everyday Life

       Tarrer next asserts that the State committed misconduct and minimized the burden of

proof by comparing the reasonable doubt standard to everyday life decisions and scenarios.

Tarrer is correct that comparing reasonable doubt to everyday decision making trivializes and
minimizes the reasonable doubt standard.


       Tarrer relies on Anderson to argue that the State committed misconduct by comparing the

burden of   proof   to   everyday   decisions and scenarios.   In Anderson, we held that comments

regarding whether to leave a child with a babysitter or change lanes on a freeway were improper
because they minimized the importance of the reasonable doubt standard and of the jury's role
in determining whether the State has met its burden."153 Wn. App. at 431. We continued, By
                                                                                        `

comparing the certainty required to convict with the certainty people often require when they
make everyday decisions both important decisions and relatively minor ones the prosecutor
                        -                                                  —

trivialized and ultimately failed to convey the gravity of the State's burden and the jury's role in

assessing its case against Anderson."Anderson, 153 Wn. App. at 431.

        Similarly, in Walker, the State argued that reasonable doubt is a "common standard that

you apply every day" and compared it to choosing to have surgery or leave children with a

babysitter. 164 Wn. App. at 732. We held those arguments improper for the same reason.

        And in Johnson, the State, without objection, used a puzzle analogy in comparing

reasonable doubt to assembling evidence to determine beyond a reasonable doubt which city is


                                                    12
No. 41347 7 II
          - -




pictured    in   a   cityscape.   158 Wn.   App.   at 682.     We held that such an analogy constituted

misconduct because it misstated the reasonable doubt standard. Johnson, 158 Wn. App. at 685.

       Here, the State equated reasonable doubt to real life scenarios:

       When you're at home and you're trying to reach a decision about your family,
       you are going to not make that decision unless you're convinced beyond a
       reasonable doubt it' the right decision to make. For example, child care. Each
                           s
       one of us has a different standard at which point we will allow someone else to
       care for our children, especially when we're talking about, for example, a daycare
       facility. You will research the daycare facility. How long has it been in business?
       What's its        reputation?    Do I know anyone else who is there? Who are the

       employees? Do I know any of them? Do they let other younger people have
       contact with the kids? What about the other kids in the daycare? What do we
       know about them?What do we know about their families?
                     All of those things are factors you're going to consider and if any one of
       those things doesn't meet your level of certainty, you're not going to leave your
       child at that daycare and walk out the door. If you do, you have reached a level of
       being convinced beyond a reasonable doubt that it' the right decision to make.
                                                          s

VRP (Oct. 11, 2010) at 51. A slide described reasonable doubt: A COMMON STANDARD
                                                               "
YOU APPLY."CP at 682.


       Finally, the State analogized reasonable doubt to putting together a cityscape puzzle.

              If you're told that you're supposed to figure out what city this skyline is
       and then you get part of the picture, so you get some evidence that's presented
       and it includes a mountain, you're going to think to yourself, maybe it' in ...
                                                                              s
       west Tacoma. Then you get more evidence and it' a downtown area. Now it'
                                                         s                             s
       maybe Portland, Seattle or Tacoma. And then you get some more evidence. And
       that evidence shows you something that is unique to the city of Seattle. Can you
       find from this         picture   whether   or   not this is Seattle   or   Tacoma? Seattle or
       Portland? The question is what makes it a determination of whether you can find
       beyond a reasonable doubt.
                   This does help to describe the beyond a reasonable doubt standard though,
           because the last piece of this puzzle is a giant piece of this puzzle, but it comes in
           as individual pieces of evidence and as it starts to come in each of those additional
           things is more information than you've been given. This is beyond any doubt.
           Beyond a shadow of a doubt or beyond all doubt. That's not what's required in a
           criminal case.




                                                          13
No. 41347 7 II
          - -




VRP ( ct. 11, 2010)at 98.
    O

       Like Anderson and Walker, here the State compared the reasonable doubt standard to a

parent's decision to leave a child with a babysitter only after being satisfied by the babysitter's

credentials beyond a reasonable doubt. That argument minimizes and trivializes the jury's role.

Accordingly, the argument was improper. See Anderson, 153 Wn. App. at 431; see also Walker,
164 Wn.      App.   at 732.       And similar to Johnson, the State analogized the reasonable doubt

standard to                       cityscape puzzle. See Johnson,   158 Wn.   App.   at 685.   The State
              assembling      a




committed misconduct in making these arguments.

                                              4. Invoking 9/1
                                                           1

       Tarrer next argues that the State committed misconduct by invoking the 9/1 terrorist
                                                                               1

attacks in his reasonable doubt 'explanation because, he asserts, it unfairly prejudiced Tarrer, a

Muslim. Tarrer is correct because this analogy improperly infuses nationalism and religion into

this case.


       The State has a duty to seek verdicts free from appeals to passion or prejudice. See State

v. Belgarde, 110 Wn. d 504, 507, 755 P. d 174 (1988).Arguments based on racial, ethnic, and
                   2                  2

other stereotypes are antithetical to and impermissible in a fair and impartial trial. Monday, 171
Wn. d at 678. Thus, the State engages in misconduct when making an argument that invokes
  2

racial, ethnic, or religious prejudice as a reason to convict. See Belgarde, 110 Wn. d at 507
                                                                                   2

holding that exploiting defendant's American Indian Movement affiliation to be misconduct).

Appeals to prejudice or patriotism are also improper. State v. Neidigh, 78 Wn. App. 71, 79, 895

P. d 423 (1995).
 2




                                                      14
No. 41347 7 II
          - -




        Here, the State compared reasonable doubt to questions involving the September 11,

2001 terrorist attacks and invoked the jury's patriotism.

        September 11, 2001, two airplanes flew into the World Trade Center in New
        York. I don't know if any of you were there, but I believe probably none of you
        were   there. Do you have any doubt?      Do you have a reasonable doubt about
        whether or not that happened?
               If you were talking to someone who was actually there, and you asked
        them questions like, what tower was hit first? What airline was being flown in
        each plane? What type of airplane was each one? What floor did you see the
        plane hit?Which tower went first?How many died in those towers?All of those
        things are questions that individuals are not going to have the specific answers to.
        Would you doubt the person if they said two airplanes flew into the World Trade
        Centers in New York?


VRP (Oct. 11, 20 10)at 95 96. Slides accompanied the 9/1 argument, and the State ended with
                          -                           1
a   slide titled "THIS COUNTRY." CP at 687.           The State concluded, "[ his country is the
                                                                           T]

greatest country in the entire world,"
                                     because "[we have rights and freedoms that no other
                                                ]

country can possibly compare with."
                                  VRP (Oct. 11, 2010) at 101. "In our country what we say

is, is that you have the freedom to do anything you want any time you want to anyone you want,

but that freedom comes with a price."VRP (Oct. 11, 2010) at 101 02. " ive the defendant the
                                                                -   G

final one of his rights, which is a true and just verdict according to the evidence that was

presented and the law that the Court gave you."
                                              VRP ( ct. 11, 2010)at 102.
                                                  O

        Tarrer is Muslim. The State and at least two jury members knew of his faith because

they saw the news story detailing Tarrer's religious discrimination lawsuit. Then, in explaining

reasonable doubt, the State invoked the deadliest terrorist act to ever occur on American soil —

one led by Muslim terrorists that prompted America's entering a prolonged war against extremist

Muslim groups. Equally important, the 9/1 attacks initiated a wave of anti -Muslim sentiment.
                                       1

See, e. .,
      g Hilal Elver, RACIALIZING ISLAM BEFORE AND AFTER 9/1: FROM MELTING POT TO
                                                         1


                                                 15
No. 41347 7 II
          - -



ISLAMOPHOBIA, 21 Transnat'l L. & Contemp. Probs. 119 ( 2012). Accordingly, the State

committed misconduct in analogizing the reasonable doubt standard to questions relating to the

9/1 terrorist attacks because referring to 9/1 appeals to the jury's passion, prejudice, and
 1                                          1

patriotism and plays on unfair ethnic and religious stereotypes. See Belgarde, 110 Wn. d at 507;
                                                                                     2

see also Neidigh, 78 Wn.App. at 79.

       The State improperly used truth arguments, fill in- blank arguments, comparisons
                                                        - the -
between reasonable doubt and everyday decision making, and an analogy likening reasonable

doubt to 9/1. Tarrer unsuccessfully objected to the State's truth arguments and fill in- blank
          1                                                                           - the -

arguments while other arguments       went   unchallenged.   So to prevail on his prosecutorial

misconduct claim regarding the truth statements and fill in- blank arguments, Tarrer must
                                                          - the -

show that in the context of the record and the entire trial, the State's conduct was improper and

prejudicial. See Thorgerson, 172 Wn. d at 442. With the everyday decision comparisons and
                                   2

1
9/ . analogy, Tarrer must show that the misconduct was so flagrant and ill intentioned that an
 1

instruction would not have cured the prejudice..Thorgerson, 172 Wn. d at 443.
                                                                  2

       By the time this case was tried, our courts had already established that truth arguments,

fill in- blank arguments, and comparisons between the reasonable doubt standard and
      - the -

everyday decision making constitute misconduct. See, e. .,
                                                      g Anderson, 153 Wn. App. at 417

decided   Dec.   8, 2009). We then held in Walker that, in cases involving credibility contests

between witnesses, i.mproper arguments can easily serve as a deciding factor for the jury.

Walker, 164 Wn. App. at 738 (citing Venegas, 155 Wn. App. 507; Johnson, 158 Wn. App. 677).

7
 The State claims that its arguments differ from those that our courts have held constitute
misconduct. Any technical difference is so minor that the arguments here are still improper.


                                                 16
No. 41347 7 II
          - -




Such was the case here.' Only McCorvey claims to have seen Tarrer shoot, though she had

consumed cocaine and may have been impaired. Owens smoked cocaine that day and was the

only other person who claimed to see Tarrer with a gun. Two witnesses not under the influence

of cocaine, Tarrer and Moore, offered different accounts. The left handed Tarrer denied being at
                                                                   -

the apartment during the shooting, and Moore said the shooter was with a group of three other

men and fired the gun right handed. So like Walker, Venegas, and Johnson, this case involved a

credibility contest.

       Assuming, but not deciding that each individual instance of misconduct was insufficient

to warrant a reversal, we evaluate the cumulative effect of the repeated truth arguments, fill in-
                                                                                                -

the blank arguments, everyday life decision -making comparisons, and the 9/1 analogyand
                                                                          1         —

consider the imagery of the slides. Because Tarrer failed to object to some arguments, we apply

the heightened test for issue preservation and hold that, cumulatively, the State's arguments and
slides were so flagrant and ill intentioned that no instruction could have erased their combined

prejudicial effect. Like Walker, the conflicting evidence and the frequent use and repetition of

improper arguments created a substantial likelihood that the State's improper arguments affected

the jury's verdict. Further instruction could not have cured the effect of the State's misconduct.
See Glasmann, 175 Wn. d at' 707 (noting that highly prejudicial imagery may be difficult to
                    2

cure);see also Emery, 174 Wn. d at 762 (emphasizing focus on the curability of improper
                            2

conduct). Therefore, the State's prosecutorial misconduct deprived Tarrer of a fair trial and

requires reversal of his convictions.




                                                17
No. 41347 7 II
          - -



                                           II. EvIDENTIARY ISSUES


        Tarrer also asserts various evidentiary issues in his Statement of Additional Grounds.

He argues that the trial court erred in (1)denying his motion to admit McCorvey's medical

records and the trial court's order denying him his right to a complete defense; ( )admitting
                                                                                 2

Owens's and McCorvey's identifications of Tarrer because of unfair photo montage procedures;

and (3)denying Tarrer's motion to dismiss when the State failed to preserve the original

montage photos and that this failure ( )
                                     4 violated Tarrer's confrontation rights.
                                                          .

        We review evidentiary rulings for abuse of discretion. Finch, 137 Wn. d at 810. A trial
                                                                            2

court abuses its discretion when its actions are manifestly unreasonable or based on untenable

grounds or reasons. Finch, 137 Wn. d at 810. We may sustain a trial court's determination to
                                 2
exclude evidence on any proper basis within the record, and we will not reverse simply because

the trial court gave   a   wrong   or   insufficient   reason   for its determination. State v. Markle, 118


Wn. d 424, 438, 823 P. d 1101 (1992).
  2                  2

                                    A. Admission of Medical Records


        Tarrer first argues that the trial court erred in denying his motion to admit McCorvey's

medical records and that its order prevented a complete defense. We disagree.

        We review a trial court's ruling on a motion to admit business records for a manifest

abuse of discretion. State     v.   Ziegler,    114 Wn. d
                                                      2         533, 538, 789 P. d 79 ( 1990). Under the
                                                                               2


business records hearsay exception, an expert witness may testify only to acts, conditions or

events, not to entries in the form of opinions or casual statements. State v. Wicker, 66 Wn. App

409, 413, 832 P. d 127 (1992).
               2

s
    RAP 10. 0.
          1
No. 41347 7 II
          - -



       Tarrer moved to admit McCorvey's 1991 medical records. He asserted that he could not

locate the physicians who prepared the medical records. He now argues that the medical records

would have contradicted McCorvey's testimony that she was facing Tarrer when he shot her.

The trial court refused to admit the records because the physicians' assessments regarding the

nature of McCorvey's gunshot wounds as either entrance exit wounds were opinion and not fact,
                                                       /

as the physicians were not examining McCorvey to characterize her wounds one way or another.
Under the business records    exception, witnesses   cannot   testify   to others'   opinions. Wicker, 66

Wn. App. at 413. And determinations of whether a gunshot wound is an entrance or exit wound

are opinions. So the trial court did not abuse its discretion when it denied the admission of the
medical records,and we affirm its order. See Finch, 137 Wn. d at 810.
                                                          2

                          B. Admission of Eyewitness Identifications

       Tarrer next argues that the trial court erred in admitting Owens's and McCorvey's

identifications of Tarrer because of unfair photo montage procedures. Again, we disagree.

       A trial court performs a two step test to determine whether an out ofcourt identification
                                    -                                     - -

is impermissibly suggestive. First, the defendant must show that an identification procedure was

suggestive. State v. Kinard, 109 Wn. App. 428, 33, 36 P. d 573 (2001),
                                             4         3             review denied, 146
Wn. d 1022 (2002).If the defendant fails to meet the initial burden, the inquiry ends. State v.
  2

Ramires, 109 Wn. App. 749, 761, 37 P. d 343, review denied, 146 Wn. d 1022 (2002).Second,
                                    3                             2
the court must determine whether the identification contained sufficient indicia of reliability

despite the suggestiveness. Ramires, 109 Wn. App. at 761.

       Here, the trial court denied Tarrer's motion to suppress Owens's and McCorvey's

identification of Tarrer in   photo montages. The trial court found that the montage was not



                                                 19
No. 41347 7 II
          - -




impermissibly suggestive, reasoning that the people pictured in the photos "have general

similarities, including race, approximate[] age, hair color, and lack of significant identifying

marks like scars or tattoos."CP at 323. So; nothing about the five photographs that are not the
                                            "

defendant that makes the defendant's photograph stand apart from the rest."CP at 323. The trial

court also found that Detective Reinicke's procedures during the identification did not cause

Tarrer's photo to stand out from the rest.

       Here, the trial   court   did not abuse its discretion.   Its reasoning followed the inquiry

required to determine if an outofcourt identification is unreasonably suggestive. Accordingly,
                               - -
we affirm the trial court's admission of Owens's and McCorvey's identifications of Tarrer.

                                 C.'
                                   Failing to Preserve Montage Images

       Tarrer next argues that the trial court erred in denying his motion to dismiss because the

State failed to preserve potentially exculpatory evidence, the original montage photos. Tarrer

asserts that the failure to preserve evidence deprived him of his due process and opportunity to

present an effective defense, as well as confront witnesses against him. We disagree.
       Before trial,Tarrer moved to dismiss,the case, or in the alternative, to suppress witnesses'

eyewitness identification of Tarrer in photo montages because the State failed to preserve some

of the photos originally included in the montages. Tarrer alleged that, during discovery, the State

provided just three of the six photos used in the montage that Detective Reinicke showed

McCorvey on January 9, 1991. Then, the State provided just four of the six photos it showed

McCorvey in the photo montage she viewed on January 11, 1991. In his motion, Tarrer argued

that the absence of these five photos deprived him of his due process and opportunity to present

an effective defense and confront witnesses against him.



                                                  PIN
No. 41347 7 II
          - -



                                         1. Due Process


       If the State fails to preserve potentially useful evidence that is not material and

exculpatory, the State has not violated the defendant's right to due process unless the defendant

can show that the State acted in bad faith. State v. Wittenbarger, 124 Wn. d 467, 477, 880 P. d
                                                                         2                  2

517 (1994). We review for an abuse of discretion a trial court's order on a motion to dismiss.

State v. Koerber, 85 Wn. App. 1, 3,931 P. d 904 (1996).
                                        2

       The trial court denied Tarrer's motion to dismiss, reasoning that although the original

photos were not found during discovery, the State provided Tarrer black and white copies of the

photos, which were sufficient. Consequently, the trial court found that the State did not fail to

preserve evidence, adding that Tarrer had not demonstrated that the missing photos were

exculpatory because the critical photo, Tarrer's, been preserved.
                                                had
       Here, the trial court did not abuse its discretion because copies of 18 year old original
                                                                               -

photos could suffice to prepare one's defense in challenging the photo montage identifications;
and Tarrer's original photo the one witnesses used to identify himstill existed at trial. The
                            —                                     —

trial court also reasonably determined that Tarrer did not carry his burden to demonstrate that the

missing original photos were exculpatory. See Wittenbarger, 124 Wn. d at 477. Therefore, we
                                                                  2
affirm the trial court's order denying Tarrer's motion to dismiss.

                                     2. Confrontation Rights

       Both the United States and Washington Constitutions grant identical confrontation rights.

State v. Florczak, 76 Wn. App. 55, 71, 882 P. d 199 (1994),
                                            2             review denied, 126 Wn. d 1010
                                                                               2

1995).




                                                21
No. 41347 7 II
          - -




        Tarrer argues that the missing original photo montage images deprived him of his right to

adequately confront McCorvey on the stand and question her about her identification of Tarrer.
The trial court did not abuse its discretion in denying Tarrer's motion to dismiss because the

parties had "good enough copies of all the original photos, as well as the originals of Tarrer's

photo and a few others. VRP (Sept. 1, 2009) at 21. Tarrer cannot demonstrate that the trial court

acted unreasonably or based its decision on untenable grounds or reasons in denying his motion

to dismiss. Accordingly, we affirm the trial court's order.

       Although Tarrer seeks remand to a different trial judge, he fails to adequately demonstrate
evidence of the trial   judge's actual   or   potential   bias at retrial.   We reverse his convictions


because of the cumulative effect of multiple instances of prosecutorial misconduct and remand

for retrial.


       A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
 0




                                                                        Johanson, A. .
                                                                                  J.
                                                                                   C
We concur:




                   Pend    r,J.

                           lu-
                 Brid ewater, J. .
                              T.
                               P




                                                    22
