                                                                                             FILED
                                                                                        COURT OF APPEALS
                                                                                             DIVISION / I
                                                                                      21314 DEC :
                                                                                                    2 AM9 8 55
                                                                                      STATE OF WASHINGTON
                                                                                      BY
                                                                                              D P     y




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II


    STATE OF WASHINGTON,                                                          No. 43870- 4- 11


                                          Respondent,


              v.



    KISHA LASHAWN FISHER,                                                  PART PUBLISHED OPINION

                                          Appellant.


    STATE OF WASHINGTON,                                                  Consolidated with No. 43990 -5 -II)


                                          Respondent,


              v.




    COREY TROSCLAIR,


                                          Appellant.


         JOHANSON, C. J. —          A jury found Kisha Fisher and Corey Trosclair guilty of first degree
          1
murder.        Trosclair   and   Fisher   appeal   their   convictions.   In the published portion of the opinion,


we hold that Trosclair' s rights under the confrontation clause of the Sixth Amendment were




1
    RCW 9A.32. 030( 1)(     c).
Consol. Nos. 43870 -4 -II / 43990 -5 -II



violated because the redactions in a nontestifying codefendant' s statements were insufficient under

current confrontation clause jurisprudence. But we hold further that the error was harmless beyond

a reasonable doubt. Therefore, although the trial court should have severed Trosclair' s case from

Fisher'   s,   the court' s   refusal   to do   so   does   not require reversal.   In the unpublished portion of the


opinion, we address Trosclair' s and Fisher' s remaining claims and affirm their convictions.

                                                              FACTS


                                           I. THE SHOOTING INVESTIGATION


          In January 2011, Lenard Masten received a fatal gunshot wound at an apartment complex

in Lakewood.           Several     apartment         residents   heard the   gunshot.    Michelle Davis,2 Masten' s

girlfriend, said      that Masten had       received a        telephone call regarding a    drug   sale.   After he left,


Michelle3 heard a loud noise and saw one man standing over Masten while another man ran up the

stairs   towards Masten'        s apartment.         Nadise Davis described     a similar scene.     Nadise heard the


gunshot, looked out the window, and saw a man standing over Masten cursing loudly and digging

through Masten'        s pockets.       Nadise also saw a second man with a gun coming down a stairwell.

Aaron Howell heard the gunfire and saw a man in a dark- colored sport utility vehicle leave the

area. Howell subsequently identified Trosclair from a photomontage as the man he had seen the

night Masten was murdered.




2 Michelle Davis died in an unrelated incident before trial, but made statements to police that the
trial court appears to have admitted as excited utterances.


3 Michelle shares a surname with several family members who testified in this case. We identify
members of the Davis family by their first names for clarity, intending no disrespect.

                                                                  2
Consol. Nos. 43870 -4 -II / 43990 -5 -II


         Masten' s cell phone records revealed pertinent information. The records showed numerous


calls between Mario Steele and Masten on the day Masten was killed, including a three -way phone

call   between Steele, Masten,         and    Trosclair three       minutes     before Masten             was shot.   Cell phone


records also placed Trosclair in the same Lakewood neighborhood as Steele and Masten during

the three -way call.

         Investigator Jeff Martin interviewed Fisher, Steele' s girlfriend and Trosclair' s sister, who


admitted that she called Masten to set up a drug deal for Steele. Fisher acknowledged that Steele

and " two guys" went to purchase cocaine from Masten around 3: 00 PM and that they were supposed

to meet with Masten again later. 14 Report of Proceedings ( RP) at 1610. Fisher also admitted to

                                                                                                      4
calling Masten       and   connecting him          on   the three -way        call   with   Steele.         She initially denied

knowing     of a    robbery    plan,   but   she   later   admitted    that    she   knew " they talked about [ robbing


Masten]."     14 RP at 1619.


                                                   II. MOTION TO SEVER


          The State charged Fisher and Trosclair each with one count of first degree felony murder

and one count of second          degree      felony   murder.       Before trial, Fisher and Trosclair moved under


CrR. 4. 4( c)( 1)   to sever their cases because the State planned to introduce Fisher' s interview


transcript that     referred   to Trosclair     by    name   throughout.         The State proposed to substitute the


phrase " the first guy" in place of Trosclair' s name. But Trosclair believed that the use of "the first

guy" was an insufficient redaction. The trial court allowed the proposed redactions and denied the

motion to sever.




4 The record is somewhat unclear on this point, but it appears that Steele was using Trosclair' s
phone for this call.



                                                                3
Consol. Nos. 43870 -4 -II / 43990 -5 -II



                                                         III. TRIAL


            Witnesses testified consistently           with   the facts     as   set   forth   above.   In addition, Joseph


Adams, who was incarcerated in the Pierce County Jail on an unrelated crime, testified at trial in

exchange for a considerable reduction of his own prison term. Coincidentally, Trosclair had been

placed in the same jail unit as Adams, who was Masten' s close friend.

            According to Adams, Trosclair told him that he and Steele planned to rob Masten because

they believed Masten had tried               to "   cheat" them earlier' that day by selling them poor quality

cocaine. 12 RP at 1338. Trosclair told Adams that someone called Masten to " set up a deal" while

Trosclair     and   Steele   waited   in the parking lot. 12 RP        at   1339.      Trosclair explained that they " ran

up   on [   Masten]"   as he was getting into his car and that he shot Masten when Masten got " loud"

and reached      for the     gun.    12 RP   at   1339. Trosclair then described his attempt to gain access to


Masten'     s apartment and     his   search of     Masten'   s person " to see what [ Masten]          had,"   before running

from the     scene when someone noticed              him. 12 RP at 1339.


            Neither Fisher nor Trosclair testified. The jury found Fisher and Trosclair guilty of first

degree and second degree murder. The trial court dismissed the second degree murder convictions

to circumvent double jeopardy concerns. Fisher and Trosclair appeal.

                                                        ANALYSIS


                                    SEVERANCE AND THE CONFRONTATION CLAUSE


            Trosclair argues that the trial court should have severed his trial from Fisher' s because the

redactions to Fisher' s interview transcript were insufficient and, therefore, violated Trosclair' s


Sixth Amendment right to cross -examination. We hold that the redactions were insufficient under




                                                                4
Consol. Nos. 43870 -4 -II / 43990 -5 -II



Bruton   v.   United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 ( 1968),                 and its progeny.

We conclude, however, that any error was harmless.

                                 A. STANDARD OF REVIEW AND RULES OF LAW


         We review alleged violations of the state and federal confrontation clauses de novo. State


v.   Medina, 112 Wn.       App.   40, 48, 48 P. 3d 1005,          review   denied, 147 Wn.2d 1025 ( 2002).        The


confrontation     clause   guarantees   the    right   of a   criminal     defendant " to be confronted with the


witnesses     against   him."    U.S. CONST.     amend.    VI.      A criminal defendant is denied the right of


confrontation when a nontestifying codefendant' s confession that names the defendant as a

participant in the crime is admitted at a joint trial, even where the court instructs the jury to consider

the confession only against the codefendant. Bruton, 391 U.S. at 135 -36. But no violation of the

confrontation clause occurs by the admission of a nontestifying codefendant' s confession with a

proper limiting instruction and where the confession is redacted to eliminate not only the

defendant' s name, but any reference to his or her existence. Richardson v. Marsh, 481 U.S. 200,

211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 ( 1987).            Any such redaction must be more than an obvious

blank space or other similarly obvious indications of alteration. Gray v. Maryland, 523 U.S. 185,

192, 118 S. Ct. 1151, 140 L. Ed. 2d 294 ( 1998).


         To comply       with   the Bruton   rule, our   Supreme Court       adopted   CrR 4.4( c),   which provides,




                      1) A defendant' s motion for severance on the ground that an out -of c
                                                                                           - ourt
         statement of a codefendant referring to him is inadmissible against him shall be
         granted unless:

                      i) the prosecuting attorney elects not to offer the statement in the case in
         chief'; or

                      ii) deletion of all references to the moving defendant will eliminate any
         prejudice to him from the admission of the statement.




                                                              5
Consol. Nos. 43870 -4 -II / 43990 -5 -II



Under this rule, the issue is whether the proposed redactions to a codefendant' s statement are


sufficient to eliminate any prejudice to the defendant.

                                     B. ADMISSION OF REDACTED TRANSCRIPT


         Trosclair alleges that the transcript contained several statements that allowed the jury to

conclude that " first guy" could not have been anyone other than Trosclair. These included Fisher' s

statements     that ( 1) "    first guy" did   not   have   a car, (   2) " first guy" lived in Kent, ( 3) " Mario," the


 first guy," and an unknown man from California went to purchase drugs from Masten, (4) Fisher


knew that the case was serious because " first guy" and Steele were already in jail as suspects, and

 5) a statement that implied that " first guy" was related to Fisher because when she was asked

whether a     third party was      related   to " first guy"   she answered, "     No relation to my family" when the

jury   had already heard that Fisher              and   Trosclair      were    brother    and    sister.   Br. of Appellant


 Trosclair) at 23.


         In   some cases, we        have   upheld    the   use of   properly     redacted statements.          For example, in


State v. Cotten, Bryan Cotten contended that the trial court erroneously allowed witnesses to testify

regarding various out -of c- ourt statements made by Cotten' s codefendant which implicated Cotten

in the crimes. 75 Wn. App. 669, 690, 879 P.2d 971 ( 1994), review denied, 126 Wn.2d 1004 ( 1995).

We disagreed, holding that evidence of statements made by Cotten' s nontestifying codefendant

were admissible because they did not implicate, name, or even acknowledge the existence of

Cotten   as an accomplice.          Cotten, 75 Wn.      App.   at   691.   Similarly, in Medina, Division One of this

court held that admission of incriminating statements made by a codefendant did not deprive Raul

Medina of his right of confrontation when the statements were redacted to refer to the other


participants     in the      crime as " other guys," "      the guy," "    a   guy," "   one   guy,"   and "   they."   112 Wn.



                                                                6
Consol. Nos. 43870 -4 -II / 43990 -5 -II



App.     at    51.    Notwithstanding the fact that only three persons were charged, the testimony

established that there were as many as six individuals involved. Medina, 112 Wn. App. at 51. The

Medina court concluded that no Bruton violation occurred because the statements were redacted


in such a way that it became impossible to track the activities of any particular " guy" among the

several       involved.       112 Wn.      App.   at   51.    Therefore, the references to " the guys" and " a guy" did

not create      the inference of identification               of   Medina    or   the third   codefendant.   Medina, 112 Wn.


App. at 51.

          In contrast, we have found violations of the Bruton rule when a trial court admitted


incriminating statements of a codefendant despite the fact that those statements had been redacted

to eliminate the defendant' s name. For instance, in State v. Vannoy, police officers observed three

suspects       fleeing     the   scene of a   robbery. 25 Wn.           App.   464, 473, 610 P. 2d 380 ( 1980).          Following

a    high -speed     pursuit,     three   men were arrested,          including    Thomas     Vannoy. Vannoy, 25 Wn. App.

at    473 -74.       Vannoy' s two codefendants both made statements describing the events to law

enforcement          using       a series of "we' s"     to   refer   to the group.     Vannoy,    25 Wn.    App.   at   473.   We


reversed Vannoy' s conviction when it concluded that a jury, after hearing the redacted confessions

and    facts    of   the     case,   could   readily determine that          Vannoy     was    included in the "    we' s"   of the


codefendants'         statements.         Vannoy, 25 Wn. App. at 474 -75.

          And in State v. Vincent, the State charged Vidal Vincent with attempted murder and assault


stemming from            a   drive -by shooting. 131 Wn.              App. 147,    150, 120 P. 3d 120 ( 2005), review denied,


158 Wn.2d 1015 ( 2006).                   As he awaited trial, Vincent' s codefendant confessed to Jason Speek,


another       jail inmate, simultaneously               incriminating       Vincent.     Vincent, 131 Wn. App. at 150 -51.

Over Vincent' s objection, the trial court allowed the State to introduce the codefendant' s



                                                                        7
Consol. Nos. 43870 -4 -II / 43990 -5 -II



statements via     Speek'      s   testimony,      provided   that   all references      to Vincent   were omitted.     Vincent,


131 Wn.    App.    at   151.       Speek testified that Vincent' s codefendant told him that the codefendant


and " the other guy" had been involved in an earlier gang fight and that when they returned to the

scene, the codefendant shot the victim. Vincent, 131 Wn. App. at 155. We held that the admission

of Speek' s testimony violated Vincent' s rights under Bruton because there were only two

participants     in the    crime      and    Speek testified that there           was     only    one "   other   guy" with the


codefendant      before,   during,     and after     the shooting.        Vincent, 131 Wn. App. at 154. Consequently,

we concluded that the only reasonable inference the jury could have drawn after hearing Speek' s

testimony    was   that Vincent        was   the "   other   guy."       Vincent, 131 Wn. App. at 154.

          Here, the State argues that Fisher' s statement was sufficiently redacted because she

implicated three men as participants in the crime and, therefore, there was more than one


possibility regarding " first guy'            s"    identity.     We disagree.        Although these statements appear


facially neutral, the record reveals that the jury could easily infer that " first guy" was Trosclair.

Accordingly, this case is analogous to Vannoy and Vincent and distinguishable from Cotton and

Medina.     Even though Fisher implicated as many as three participants in the crimes, one of the

three men was Steele, who was named at all times throughout the transcript. The two remaining

participants were " first guy" and an unknown man from California. Fisher said that she had never

seen the man from California before the day of the crime and had not seen him since.

          Meanwhile, Fisher provided several identifying details about " first guy" which revealed

her   personal    knowledge regarding               where "     first guy"    resides,    how    frequently " first   guy"   visits



Fisher,   and whether      he      owns a car.       Significantly, when Fisher was asked whether the man from

California   was related       to the " first guy,"     she responds, " No relation          to my    family."    14 RP at 1615.



                                                                     8
Consol. Nos. 43870 -4 -II / 43990 -5 -II



By this point the jury had already heard that Trosclair lived in Kent and that he was Fisher' s
brother.


        Perhaps most egregiously, the State failed to redact Trosclair' s first name from a portion

of the interview transcript read to the jury. Near the end of the interview, Investigator Sean Conlon

asked Fisher a series of questions concerning allegations that Masten prostituted Fisher when the

two were dating. When Fisher denied having knowledge of these assertions, Conlon' s responsive

questioning implied surprise because he had discussed this rumor with both " Corey" and Steele.

14 RP at 1632. This reference to " Corey" was clearly a reference to Corey Trosclair, the defendant.

While this exchange did not relate directly to the crime, it explored motive, and it further

emphasized the existence of a connection between Steele, Trosclair, and Masten.


        As the     Gray    court noted,      there     are some statements            that, despite   redactions, "   obviously


refer directly to someone, often obviously the defendant, and which involve inferences that a jury

ordinarily     could make    immediately."            523 U.S.    at   196.   Here, as in Vincent, the only reasonable

inference the     jury   could   have drawn      was    that Trosclair        was "   first guy." Although the trial court


provided the necessary limiting instruction, the use of Fisher' s redacted statement violated

Trosclair' s confrontation rights under Bruton and its progeny. Accordingly, we hold that the trial

court erred in denying Trosclair' s motion to sever based on the inadequately redacted statement.

                                                  C. HARMLESS ERROR


           A   confrontation clause error        is   subject    to the   constitutional     harmless    error   test.   Such an


error is harmless if the evidence is overwhelming and the violation so insignificant by comparison

that we are persuaded beyond a reasonable doubt that the violation did not affect the verdict.


Vincent, 131 Wn.         App.    at   154 -55.   Here, the State' s untainted evidence of Trosclair' s guilt was



                                                                  9
Consol. Nos. 43870 -4 -II / 43990 -5 -II



strong.   Cell phone records placed Trosclair with Steele at the scene and in contact with Masten


moments prior to the shooting. An eyewitness identified Trosclair as one of the perpetrators from

a photomontage. Moreover, Trosclair confessed his guilt to a fellow inmate, providing details that

were unknown to anyone other than members of law enforcement. We hold that the violation of

Trosclair'   s confrontation right was    harmless beyond        a reasonable      doubt.      Accordingly, we hold

that the trial court' s denial of Trosclair' s motion to sever his trial from Fisher' s does not warrant

reversal and affirm.




          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public


record in accordance with RCW 2. 06. 040, it is so ordered.


          With regard to Trosclair' s additional arguments, we hold that ( 1) the trial court did not


abuse   its discretion in refusing to   grant   Trosclair'   s motions   for   mistrial, (2)   Trosclair' s ineffective


assistance of counsel claim fails because Trosclair cannot show that the trial' s outcome would


have been different, ( 3) Trosclair' s prosecutorial misconduct claim fails because he is unable to


show that the misconduct was flagrant and ill intentioned, and ( 4) the cumulative error doctrine


does not require reversal.


                                 I. DENIAL OF MOTIONS FOR MISTRIAL


          Trosclair next contends that the trial court erred when it denied his motion for a mistrial


after a police witness testified that he suggested Trosclair could clear himself if he underwent a


polygraph examination.       Trosclair argues further that the trial court erred by denying two other

motions for mistrial related to the State' s use of allegedly testimonial statements associated with




                                                         10
Consol. Nos. 43870 -4 -1I / 43990 -5 -II



photomontage identifications in violation of his rights under the confrontation clause of the Sixth


Amendment. We disagree.


                                     A. STANDARD OF REVIEW AND RULES OF LAW


          We review the grant or denial of a motion for mistrial for an abuse of discretion. State v.


Lewis, 130 Wn.2d 700, 707, 927 P. 2d 235 ( 1996). A trial court' s denial of a motion for mistrial


 will be overturned only when there is a ` substantial likelihood' the prejudice affected the jury' s

verdict."      State   v.   Russell, 125 Wn.2d 24, 85, 882 P. 2d 747 ( 1994), cert. denied, 514 U.S. 1129


 1995).      And   an appellate court           finds   abuse   only "' when no reasonable judge would have reached


the   same conclusion. '           State   v.   Hopson, 113 Wn.2d 273, 284, 778 P. 2d 1014 ( 1989) ( quoting                    Sofie

v.   Fibreboard     Corp.,        112 Wn.2d 636, 667, 771 P. 2d 711, 780 P. 2d 260 ( 1989)).                     In determining

whether the effect of an irregular occurrence at trial affected the trial' s outcome, we examine ( 1)


the   seriousness of        the   irregularity, ( 2)     whether   it involved     cumulative evidence, (        3) whether the


trial court properly instructed the jury to disregard it, and (4) whether the prejudice was so grievous

that nothing short of a new trial could remedy the error. Hopson, 113 Wn.2d at 284; State v. Mak,

105 Wn.2d 692, 701, 718 P. 2d 407, cert. denied, 479 U. S. 995 ( 1986).

                                                    B. POLYGRAPH QUESTION


             We first determine        whether      there   was an "   irregular   occurrence"   at   trial. The general rule


in Washington has              long    been that the "[ r] esults of polygraph tests are not recognized in


Washington         as reliable evidence and are ...              inadmissible without stipulation from both parties."

State   v.   Thomas, 150 Wn.2d 821, 860, 83 P. 3d 970 ( 2004) ( citing                   State v. Renfro, 96 Wn.2d 902,

905, 639 P. 2d 737,         cert.   denied, 459 U.S. 842 ( 1982)). Nevertheless, "` [ t]he             mere fact [that] a jury

is   apprised of a     lie detector is      not   necessarily    prejudicial   if no inference   as   to the   result   is   raised or
Consol. Nos. 43870 -4 -II / 43990 -5 -II



if   an   inference     raised as   to the   result   is   not prejudicial. "'   State v. Sutherland, 94 Wn.2d 527, 529,


617 P. 2d 1010 ( 1980) ( quoting State                     v.   Descoteaux, 94 Wn.2d 31, 38, 614 P. 2d 179 ( 1980),


overruled by State v. Danforth, 97 Wn.2d 255, 643 P. 2d 882 ( 1982)).

               Here, Martin' s reference to a hypothetical polygraph was not improper. During trial, the

State questioned Martin about his interview with Trosclair and the following exchange occurred:

               THE STATE]:          Okay.     And then          at   the very end:    Did you suggest a lie detector
                        could clear Mr. Trosclair?
               MARTIN] : Yes.
               THE STATE]: What was his answer?
               MARTIN] : No, it won' t.


8 RP      at   855. Trosclair did      not object,         but instead       moved   for   a mistrial.   Trosclair contended that


this reference to the polygraph amounted to a violation of his constitutional right to remain silent.


The trial court then denied the motion for mistrial, citing " the way the question was asked" in

support of its decision. 8 RP at 880.


               The State argues that Trosclair' s response to the suggestion that a polygraph could clear


him was a reflection of his dishonesty rather than his unwillingness to submit to a lie detector test

and, therefore, there was no indication that such a test was offered or refused. Although Trosclair


admitted that a lie detector would not "clear" him, he did not refuse to take one nor was one offered.


Martin'        s   testimony   was not   improper testimony regarding                  unreliable polygraph results.      Simply

stated, there was no polygraph offered or refused and, therefore, no unreliable polygraph.results.


Accordingly, the State did not elicit improper polygraph result testimony and there was no

 irregularity at trial."

               Even if we assume an irregularity occurred at trial, Trosclair' s argument still fails when we

examine            the Hopson    criteria.    First, even if we assume that the introduction of the polygraph



                                                                        12
Consol. Nos. 43870 -4 -II / 43990 -5 -II



question testimony was irregular and prejudicial, when scrutinized in the context of the entire trial,

the   seriousness of   the   irregularity   is   mitigated.   The State did not submit evidence that Trosclair


was offered or refused a polygraph               test.   Thus, any   irregularity   was not serious.     Second, the


evidence    was   cumulative.       Evidence showed that Trosclair confessed his crime to Adams.


Additionally, cell phone records established Trosclair' s presence in Lakewood on the day of the

crime. Third, the court did not instruct the jury to disregard the polygraph testimony, but Trosclair

did not move to strike the testimony and did not request a limiting instruction.

         Finally, while the testimony allowed the jury to draw a prejudicial negative inference, that

prejudice was not so grievous that nothing short of a new trial could remedy the error because the

untainted evidence against        Trosclair      was     overwhelming.    In addition to the phone records that


placed Trosclair with Steele at the scene and in contact with Masten moments prior to the shooting,

an eyewitness     identified Trosclair       as one of     the   perpetrators   from   a photomontage.    Moreover,


Trosclair confessed his guilt to a fellow inmate, providing details that were unknown to anyone

other than members of law enforcement.


         Accordingly, there was not a substantial likelihood that the admission of the polygraph

testimony affected the jury' s verdict. Russell, 125 Wn.2d at 85. The trial court, who is best suited

to judge the prejudicial effect of a statement, State v. Weber, 99 Wn.2d 158, 166, 659 P. 2d 1102

 1983), heard argument and concluded that a mistrial was not required. We conclude that the trial


court' s denial of the motion for mistrial was not an abuse of its discretion.


                                        C. PHOTOMONTAGE TESTIMONY


         Trosclair also argues that the State violated his right to confrontation when it presented


testimonial evidence that allowed the jury to infer that Michelle picked Trosclair out of a


                                                              13
Consol. Nos. 43870 -4 -II / 43990 -5 -1I



photomontage. Trosclair asserts that the trial court erred by denying his motions for mistrials after

the introduction of this evidence. We disagree.


          A part of a defendant' s right to " be confronted with the witnesses .against him" in a criminal

trial,   U. S.    Const.     amend.      VI, the    State cannot introduce a testimonial statement from a


nontestifying witness unless the witness is unavailable and the defendant had a prior opportunity

to   cross -examine      the      witness.    Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L.


Ed. 2d 177 ( 2004).               A statement is testimonial when its primary purpose is to establish facts

relevant to a criminal prosecution. Davis v. Washington, 547 U. S. 813, 822, 126 S. Ct. 2266, 165


L. Ed. 2d 224 ( 2006).             But as we mentioned above, error in admitting evidence in violation of the

confrontation clause is subject to a constitutional harmless error test. Lilly v. Virginia, 527 U. S.

116, 139 -40, 119 S. Ct. 1887, 144 L. Ed. 2d 117 ( 1999).                       Error is harmless if the State shows


     beyond a reasonable doubt that the error complained of did not contribute to the verdict


obtained. '          State   v.   Jasper, 174 Wn. 2d 96, 117, 271 P. 3d 876 ( 2012) (             quoting Chapman v.

California, 386 U. S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 ( 1967)).


              During Martin' s direct examination, the following occurred:

              THE STATE]:            And     please answer yes or no   to the   next question.    The next day
                       did    you     show      Michelle   Davis,   Ms. [   sic]    Masten'   s   girlfriend,   a

                   photomontage that included Corey Trosclair?
              MARTIN]: Yes.
              THE STATE]: Did you then get an arrest warrant for Corey Trosclair?
              MARTIN]: Yes.


8 RP     at   831.   Trosclair moved for mistrial shortly after this exchange, claiming that it left the jury

with the impression that Michelle picked Trosclair out of the photomontage without an opportunity

to cross -examine her. Then during closing argument, the prosecutor said,



                                                              14
Consol. Nos. 43870 -4 -II / 43990 -5 -II



       It' s not a coincidence that Michelle Davis picked these two out of a photomontage,
        or that Michelle picked Mario Steele out of a photomontage. It' s not a coincidence
       that Aaron Howell picked Corey Trosclair out of the photomontage.

16 RP at 1885. Trosclair again moved for mistrial. The trial court denied both motions.


        Trosclair' s argument that the trial court erred by denying these motions fails for two

reasons.   First,   no actual statement   from Michelle   was ever presented.   Second, even assuming

without deciding that testimonial statements were involved by implication, the introduction of any

such evidence in this context was harmless error. Whether or not the testimony left the impression

that Michelle identified Trosclair from the photomontage, the jury knew that Howell had done so.

The State could have properly substituted Howell' s name for Michelle' s. Reading the prosecutor' s

entire argument, it appears that he simply misspoke during closing argument when he suggested

that Michelle had picked both Steele and Trosclair from the photomontage and that he quickly

corrected his mistake, reminding the jury that it was actually Howell who had identified Trosclair.

Thus, any error was harmless and by extension there was not a substantial likelihood that the

admission of the photomontage testimony affected the jury' s verdict. Russell, 125 Wn.2d at 85.

Accordingly, the trial court did not abuse its discretion by denying Trosclair' s motions.

                               II. INEFFECTIVE ASSISTANCE OF COUNSEL


        Trosclair further asserts that his trial counsel was prejudicially ineffective for failing to

move to exclude any reference to the polygraph question at the pretrial stage. Even if we assume,

without deciding, that counsel' s failure to move to exclude the polygraph evidence was deficient,

Trosclair cannot demonstrate that the outcome of the trial would have been different but for


counsel' s deficient performance.




                                                    15
Consol. Nos. 43870 -4 -II / 43990 -5 -II



          To prevail on an ineffective assistance of counsel claim, Trosclair must show both deficient


performance           and   resulting   prejudice;   failure to   show either   prong defeats this   claim.   State v.


McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002). To establish prejudice, he must show that but


for counsel' s deficient performance, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).


          Here, as we discussed above, the State presented strong evidence of Trosclair' s guilt (cell

phone records, witness identification of Trosclair, Trosclair' s own admissions of guilt) such that


any prejudicial effect stemming from his trial counsel' s failure to preempt the State' s use of the

polygraph evidence cannot reasonably be said to have affected the outcome of his trial. Strickland,

466 U.S.    at   694.       Consequently, we hold that Trosclair cannot show prejudice and, therefore, he

fails to satisfy the second prong of the test. Strickland, 466 U. S. at 694.

                                           III. PROSECUTORIAL MISCONDUCT


          We turn next to Trosclair' s argument that the prosecutor committed flagrant, prejudicial


misconduct in minimizing the State' s burden of proof and misstating the role of the jury in two

ways.     First, the prosecutor misstated the role of the jury in explaining that it could convict the

defendant if they " knew" he             was   guilty.   Second, the State again minimized the burden of proof


and misstated the jury' s role through its use of "Power Point" slides that' negated elements of the

crime     necessary for        conviction and     implored the     jury   to " declare the truth."   Br. of Appellant


 Trosclair)      at   47. We conclude that the prosecutor' s argument, when considered in context, did


not minimize the State' s burden and also that the prosecutor' s request that the jury " speak the

truth,"   although improper, was not flagrant or ill intentioned. Therefore, Trosclair has waived any

error.




                                                              16
Consol. Nos. 43870 -4 -II / 43990 -5 -11



                                             A. STANDARD OF REVIEW


         To establish prosecutorial misconduct, Trosclair has the burden of establishing that the

challenged conduct was           both improper       and prejudicial.       State v. Cheatam, 150 Wn.2d 626, 652,


81 P. 3d 830 ( 2003).         We review the prosecutor' s conduct " by examining that conduct in the full

trial context, including the evidence presented, `the context of the total argument, the issues in the

case,   the    evidence addressed      in the   argument, and          the instructions   given   to the   jury. "'   State v.


Monday,        171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal              quotations marks omitted) ( quoting




State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)).


             Because Trosclair failed to object to misconduct at trial, he is deemed to have waived any

error unless he establishes that the misconduct was so flagrant and ill intentioned that it caused an


enduring prejudice that could not have been cured with an instruction to the jury and the

misconduct resulted in prejudice that had a substantial likelihood of affecting the jury verdict.

State   v.   Emery,      174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012); State v. Thorgerson, 172 Wn.2d 438,


442, 258 P. 3d 43 ( 2011).          The focus of this inquiry is more on whether the resulting prejudice

could have been cured, rather than the flagrant or ill-intentioned nature of the remark. Emery, 174

Wn.2d at 762.


                                                B. ADDITIONAL FACTS


             In closing argument, the prosecutor implored the jury to set aside any preexisting notions

and feelings it might have about what the reasonable doubt standard is or what it should be because


the court had told them what the standard is. Shortly thereafter, the prosecutor said,

                      Satisfied, if you have an abiding belief that the defendants committed the
             robbery, you have a duty to convict them. That' s exactly what the instructions tell
             you.   So   once you are satisfied --   this is --   put this to you slightly different. At some
             point you are going to be sitting back in the jury room and somebody is going to

                                                                  17
Consol. Nos. 43870 -4 -II / 43990 -5 -II



          say, I know he did it, but I would like to see more. Well, of course you would like
          tosee more. I know he did it but -- and I want you to stop to think and say, I know

          he did it, I know he did it. At that point you have an abiding belief in the truth of
          the charge. You know he did it.


16 RP at 1903 -04.


          The prosecutor continued, discussing the application of the " reasonable doubt" standard:

          It' s a doubt that rises from the evidence or lack of evidence. In other words, when
          you are   looking at the truth of the charge, you say it wasn' t him. You say, they
          didn' t try to rob Lenard Masten. The gunshot didn' t kill him. That' s a doubt that
          arises from the evidence, or the lack of evidence.
                        Do   you   have   enough?     It' s   not   do   you wish you        had    more.   Do you have
          enough?         There    will always   be something            else   that   you would     like to   see.   If you
          have     an   abiding belief it just   means        abiding,    long lasting.      Are   you satisfied -- when


          you reach your verdict today, are you satisfied tomorrow, are you satisfied two
          years     from     now?       When you wake up three years from now, I did the right thing.
          It' s   not   I' m 1, 000     percent certain. It' s, I know he did it. Are you going to be
          satisfied       two   years   from   now?   I know he did it.


16 RP at 1904 -05.


                                                          C. ANALYSIS


          Trosclair takes issue with the prosecutor' s several references to whether the jury " knew"

he was guilty in the passages above, arguing that this language minimizes the burden of proof in

the   jury' s     mind.      But he did    not object    to this    argument at         trial.    When read in isolation, these


statements could appear to minimize the State' s burden of proof. But these words could also be


read or   interpreted         as an   unnecessary     augmentation of           the State'   s   burden. The phrase " I know he


did it" could also be construed as a requirement that a juror be convinced of a defendant' s guilt


with absolute certainty, which is more than the State is required to prove.

          Regardless, these comments are not flagrant and ill intentioned when read in the context of


the   argument.           Immediately before the prosecutor made this argument, he quoted the entire

reasonable doubt instruction verbatim. It was only after doing so that he attempted to explain, in

                                                                    18
Consol. Nos. 43870 -4 -II / 43990 -5 - II



lay   terms, how      an   abiding belief is developed.    Importantly, the prosecutor here endeavored to

connect his argument with the correct legal standard and did not trivialize the State' s burden by,

for example, comparing the certainty required to convict with the certainty people used when they

make everyday decisions. State v. Walker, 164 Wn. App. 724, 732, 265 P. 3d 191 ( 2011).

         Furthermore, even if Trosclair could demonstrate that this argument was flagrant and ill


intentioned, he fails to show that an instruction reminding the jury to consider the evidence only

in terms of the reasonable doubt standard could not have cured any prejudice. As mentioned, our

focus is directed most strongly towards this consideration. Emery, 174 Wn.2d at 762. In Emery,

the court reasoned that had Emery objected to improper closing arguments at trial, the trial court

would have properly explained the jury' s role and reiterated the correct burden of proof,

eliminating any       confusion or prejudice.   174 Wn.2d at 764. The same is true here.


         Trosclair also claims that the State misstated the role of the jury with its use of a " Power

Point" slide show because the State included slides which implied that the jury did not need to find

that the State proved each element of the crime to render a guilty verdict. Trosclair did not object

to the slides he now complains of. The State used the following slide in closing argument:

                                       An Abiding Belief
         If you know Corey Trosclair committed the crime of Robbery or Attempted
         Robbery, you have an abiding belief and he is guilty of Murder in the First Degree

Ex. 164,   at   21.   Trosclair argues that this slide and the accompanying statements imply that the

jury need only determine whether Trosclair committed robbery to be guilty of first degree felony

murder, which is improper because commission of the underlying felony is but one element of the

charge. While this is true, it appears from the context of the entire argument that the State framed


the slide this way because if the State was able to prove that Trosclair participated in the robbery


                                                          19
Consol. Nos. 43870 -4 -II / 43990 -5 -I1



that led to Masten' s murder, he was guilty of murder because no other element of the crime was

in doubt.


          In addition to the commission of the robbery, the remaining elements included that ( 1) the

defendant, or another participant, or a person to whom the defendant was acting as an accomplice,

caused the death of Masten in the course of or in furtherance of such crime or in immediate flight

from   such crime, (      2) Masten was not a participant in the crime, and ( 3) any of these acts occurred

in the State of Washington. The State did not minimize its burden in the minds of the jury members

because these      other elements were never              in dispute. What was in dispute was whether Trosclair


participated in the robbery, the predicate crime to felony murder. Furthermore, two slides later,

the State reminded the jury that the defendant is entitled to a fair trial and that the State was required

to   prove   every   element of      the    charge.      The slides and the accompanying statements were not

improper, but even if they were, it was not flagrant or ill intentioned such that any prejudice could

not be cured by an appropriate instruction.

          The State also used a slide in which it urged the jury to return verdicts that " speak the

truth."      16 RP   at   1905.     This court and our Supreme Court have consistently held that these

arguments are improper. Emery, 174 Wn.2d at 760; State v. Anderson, 153 Wn. App. 417, 424,,

220 P. 3d 1273 ( 2009),          review   denied, 170 Wn.2d 1002 ( 2010). The Anderson court explained,


          A jury' s job is not to " solve" a case. It is not, as the State claims, to " declare what
          happened on the day in question." ...           Rather, the jury' s duty is to determine
          whether the State has proved its allegations against a defendant beyond a reasonable
          doubt.


153 ' Wn.     App.   at   429.    The     court   in   Emery,    agreeing that " declare the truth"      statements were



improper, carefully         analyzed whether           these   arguments are   flagrant   or   ill intentioned. 174 Wn.2d


at 763. The court concluded that such arguments are not the type that our courts have traditionally

                                                                  20
Consol. Nos. 43870 -4 -II / 43990 -5 -II



found   inflammatory —like        arguments      that   appeal     to   racial   biases   or   local   prejudices —so   these



arguments lacked any possibility of inflammatory effect. Emery, 174 Wn.2d at 763. Accordingly,

here, the State'    s   demand that the   jury " declare   the truth,"     though improper, was not flagrant or ill -


intentioned misconduct incurable by an instruction and, therefore, we hold that Trosclair' s

prosecutorial misconduct claims fail.

                                               IV. CUMULATIVE ERROR


         Finally, Trosclair contends that even if the alleged errors did not compel reversal

individually, their cumulative effect should because that effect deprived Trosclair of his state and

constitutional     rights to a   fair trial.    Because Trosclair cannot show that he was substantially

prejudiced to the extent that he was denied a fair trial considering the totality of the circumstances,

we hold that the cumulative error doctrine does not warrant reversal in this instance.


         The cumulative error doctrine applies where a combination of trial errors denies the


accused a fair trial even where any one of the errors, taken individually, may not justify reversal.

State   v.   Greiff, 141    Wn.2d 910, 929, 10 P. 3d 390 ( 2000).                 The defendant bears the burden of


proving      an   accumulation    of error     of sufficient      magnitude       that    retrial   is necessary.   State v.


Yarbrough, 151 Wn.          App. 66,   98, 210 P. 3d 1029 ( 2009) ( citing          In re Pers. Restraint ofLord, 123

Wn.2d 296, 332, 868 P. 2d 835, 870 P. 2d 964,              cent.   denied, 513 U.S. 849 ( 1994)). But the doctrine


does not apply where the errors are few and have little or no effect on the outcome of the trial.

State   v.   Weber, 159 Wn.2d 252, 279, 149 P. 3d 646 ( 2006), cert. denied, 551 U.S. 1137 ( 2007).


Analysis of this issue depends on the nature of the errors because a constitutional error requires


reversal unless the reviewing court is convinced beyond a reasonable doubt that any reasonable

jury would have reached the same result absent the error. State v. Whelchel, 115 Wn.2d 708, 728,


                                                             21
Consol. Nos. 43870 -4 -II / 43990 -5 -II



801   P. 2d 948 ( 1990).    Nonconstitutional error requires reversal only if, within reasonable

probabilities, it materially affected the outcome of the trial. State v. Halstien, 122 Wn.2d 109, 127,

857 P. 2d 270 ( 1993).

        Here, Trosclair' s rights under the confrontation clause were violated, but that error was


harmless beyond a reasonable doubt and did not affect the outcome of the trial. The State' s " speak


the truth" statement was improper, but was neither flagrant nor ill intentioned. There was arguably

an error associated with the polygraph question. But the untainted evidence against Trosclair was


strong and the errors did not deny Trosclair a fair trial. The polygraph testimony did not materially

affect the outcome of trial nor would any reasonable jury have reached a different result in the

absence of the possible error. In light of all the evidence, we reject Trosclair' s argument that the


cumulative   effect of   these   errors supports reversal   of   his   conviction.   Accordingly, we affirm

Trosclair' s conviction.


                                           ANALYSIS —FISHER


        Fisher appeals her conviction, arguing that the State presented insufficient evidence to

prove that she acted as an accomplice and that the trial court erred when it refused to provide the


jury her proposed affirmative defense jury instruction. We hold that there was sufficient evidence

to support Fisher' s conviction because she aided in the commission of the offense and because she


failed to prove by a preponderance of the evidence that she was entitled to the instruction; the trial

court did not err in declining to give the requested instruction.

                                     I. SUFFICIENCY OF THE EVIDENCE


        Fisher argues that the evidence was insufficient to prove beyond a reasonable doubt that


she acted as an accomplice to felony murder because the fact that she coordinated the final phone


                                                    22
Consol. Nos. 43870 -4 -II / 43990 -5 - II



call to Masten, coupled with her reluctance to discuss the case with law enforcement, does not

amount      to   proof   beyond    a reasonable   doubt. Because Fisher coordinated the final phone call to


set up the sham drug deal with knowledge that she was assisting in a planned robbery, her claim

fails. We hold that sufficient evidence supports Fisher' s conviction.


           To determine whether evidence is sufficient to sustain a conviction, we review the evidence


in the light most favorable to the State. State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003).

The   relevant question      is "'   whether any rational fact finder could have found the essential elements

of   the   crime   beyond   a reasonable     doubt. '    State v. Drum, 168 Wn.2d 23, 34 -35, 225 P. 3d 237


2010) ( quoting Wentz, 149 Wn.2d                at   347).   In claiming insufficient evidence, the defendant

necessarily admits the truth of the State' s evidence and all reasonable inferences that can be drawn

from it.     Drum, 168 Wn.2d at 35 ( citing State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068

 1992)).     We interpret the        evidence "' most   strongly   against   the defendant. '   State v. Hernandez,


172 Wn.      App. 537,      543, 290 P. 3d 1052 ( 2012) (     quoting State v. Joy, 121 Wn.2d 333, 339, 851

P. 2d 654 ( 1993)),       review     denied, 177 Wn.2d 1022 ( 2013).         We consider both circumstantial and


direct evidence as equally reliable and defer to the trier of fact on issues of conflicting testimony,

witness credibility, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874 -75.

           To convict Fisher of first degree murder, the State had to prove the following elements:

                   1) That on or about the 16th day of January, 2011 the defendant or a person
           to whom the defendant was acting as an accomplice, committed or attempted to
           commit the crime of Robbery in the First Degree or Robbery in the Second Degree;
                     2) That the defendant, or another participant, or a person to whom the
           defendant was acting as an accomplice, caused the death of Lenard Masten in the
           course of or in furtherance of such crime or in immediate flight from such crime;
                     3) That Lenard Masten was not a participant in the crime; and
                     4) That any of these acts occurred in the State of Washington.



                                                             23
Consol. Nos. 43870 -4 -I1 / 43990 -5 -II



Clerk' s Papers ( Fisher)         at   172; RCW 9A. 32. 030( 1)(     c).     A person is guilty of a crime as an

accomplice when




                   a) [   w] ith knowledge that it will promote or facilitate the commission of the
         crime, he or she:
                   i)     Solicits, commands, encourages, or requests such other person to
         commit it; or
                   ii)    Aids or agrees to aid such other person in planning or committing it.

RCW 9A.08. 020( 3). "          Aid" means all assistance given by words, acts, encouragement, support, or

presence. And a person who is an accomplice in the commission of a crime is guilty of that crime

whether present at the scene or not.



         Here, Adams testified that Trosclair told him that someone called Masten to set up a drug

deal   while   Trosclair    and   Steele   were   waiting   outside of     Masten'   s apartment.   Fisher admitted to


initiating   the three -way       phone call with      Masten   moments      before his death.      Fisher admitted to


Conlon first that she knew that Steele and Trosclair had discussed robbing Masten, then that she

thought they would likely rob him, and finally that Steele told her they were going to rob Masten.

Notwithstanding          the   fact    that   Fisher   vacillated,   backpedaled,        and   described the   events


inconsistently, the State presented enough information for a rational fact finder to find the essential

elements of felony murder beyond a reasonable doubt. We hold that the State presented sufficient

evidence to support Fisher' s conviction as an accomplice to first degree murder.


                                       II. AFFIRMATIVE DEFENSE INSTRUCTION


         Fisher also argues that the trial court' s refusal to offer one of her proposed jury instructions

violated her constitutional right to present a defense and to inform the jury of the applicable law.

We hold that the trial court did not err in refusing to give the instruction and, accordingly, we

affirm Fisher' s conviction.



                                                             24
Consol. Nos. 43870 -4 -II / 43990 -5 -II



          The standard of review for a refusal to give a requested jury instruction depends on whether

the refusal was based on a matter of law or fact. State v. Walker, 136 Wn.2d 767, 771, 966 P. 2d

883 ( 1998).    If the refusal was based on a matter of law, our review is de novo; if it was based on


a matter of    fact,   we review    the   refusal    for   an abuse of     discretion. Walker, 136 Wn.2d at 771 -72.


Jury instructions are adequate if they permit the parties to argue their theories of the case, do not

mislead the jury, and properly inform the jury of the applicable law. State v. Barnes, 153 Wn.2d

378, 382, 103 P. 3d 1219 ( 2005).              And a defendant is entitled to an instruction on his theory of the

case if the evidence supports that theory. State v. Williams, 132 Wn.2d 248, 259, 937 P. 2d 1052

 1997).    But a defendant raising an affirmative defense must offer sufficient admissible evidence

to justify giving the jury an instruction on the defense. State v. Janes, 121 Wn.2d 220, 237, 850

P. 2d 495 ( 1993).      In evaluating whether the evidence is sufficient to support such an instruction,

the trial court must interpret the evidence most strongly in favor of the defendant. State v. Mullins,

128 Wn.     App. 633, 639,        116 P. 3d 441 ( 2005) (         citing State v. May, 100 Wn. App. 478, 482, 997

P. 2d 956, review denied, 142 Wn.2d 1004 ( 2000)).


          Here, the trial court determined that Fisher was not entitled to the statutory affirmative

defense instruction presumably because she did not present sufficient evidence to establish each

of the required elements. 5 Therefore, the court' s determination was based on a matter of law and,

thus,   our review     is de   novo.   Walker, 136 Wn.2d at 772.


          Fisher requested that the court provide the jury with 11 Washington Practice: Pattern Jury

Instructions: Criminal 19. 01,            at   291 ( 3d   ed.   2008),   which provides,



                   It is a defense to a charge of murder in the [ first] [second] degree based upon
           committing] [or] [attempting to commit] (fill in felony) that the defendant:

5 The trial court did not indicate the ground on which it was refusing to provide the instruction.
                                                                  25
Consol. Nos. 43870 -4 -II / 43990 -5 -II



         1)       Did not commit the homicidal act or in any way solicit, request, command,
                  importune, cause, or aid the commission thereof; and
         2)       Was not armed with a deadly weapon, or any instrument, article, or
                  substance readily capable of causing death or serious physical injury; and
         3)       Had no reasonable grounds to believe that any other participant was armed
                  with such a weapon, instrument, article, or substance; and
         4)       Had no reasonable grounds to believe that any other participant intended to
                  engage in conduct likely to result in death or serious physical injury.
                  The defendant has the burden of proving this defense by a preponderance
        of the evidence. Preponderance of the evidence means that you must be persuaded,
        considering all the evidence in the case, that it is more probably true than not true.
        If you find that the defendant has established this defense, it will be your duty to
        return a verdict of not guilty [ as to this charge].

        At trial, the State conceded that there was no dispute that Fisher satisfied elements one and


two. The State argues, however, that because the burden was on Fisher, she was required to present

some evidence      to   establish   the third   and   fourth   elements, which she   did   not   do. Fisher contends


that a preponderance of the evidence means that all of the evidence is considered and, therefore, a

lack of evidence in the State' s case to show she had a reasonable belief that either Steele or

Trosclair     was armed with a weapon was             equally   sufficient.   We agree with the State that Fisher


had the burden to present evidence that she was entitled to the affirmative defense instruction that

she requested, and      that she failed to do so.       Fisher had to present some evidence that she " had no

reasonable      grounds    to believe"    that any other participant was armed with such a weapon,

instrument, article, or substance, and that she had no reasonable grounds to believe that any other

participant intended to engage in conduct likely to result in death or serious physical injury.

        The defendant has the burden of proving this defense by a preponderance of the evidence.

Fisher did not testify nor did she call witnesses. Our review of the record reveals no evidence that

Fisher had " no reasonable grounds to believe" that another participant was armed and that no other


participant intended to engage in conduct likely to result in death or serious physical injury.


                                                               26
Consol. Nos. 43870- 4- 11/ 43990 -5 -I1



       A relatively low evidentiary burden is a burden nonetheless and no evidence at trial

supported a determination that Fisher had no reasonable grounds to believe that other participants


were armed and planned to engage in conduct resulting in injury. We hold that the trial court did

not err in refusing to give the requested instruction.

       Accordingly, we affirm Trosclair' s and Fisher' s convictions.




 We concur:




                                                  27
