                                                                                                              F11 LU
                                                                                                       MAT  OF APPEALS
                                                                                                         DllrlSlal
                                                                                                                   I.,

                                                                                                     2D 15 JUL 21
                                                                                                                    AM 9; 26
                                                                                                                    SIi1?4IGT0?i
     IN THE COURT OF APPEALS OF THE STATE OF WASHIN&                                                   t
                                                                                                            DE

                                                   DIVISION II

In Re The Personal Restraint of                                                   No. 45163 -8 -II


 SHAMARR PARKER,


                            Petitioner.                                      UNPUBLISHED OPINION




          SUTTON, J. — In this      personal restraint petition ( PRP),       Shamarr Derrick Parker seeks relief


from restraint imposed following his 2010 jury trial convictions for first degree kidnapping and

first degree robbery.          He argues that the State engaged in prosecutorial misconduct on several


grounds and        that the trial court   erred   in admitting   certain 'testimony. He further argues that he

received ineffective assistance of appellate counsel because his counsel failed to raise these issues

on   direct   appeal.       We hold that Parker' s appellate counsel provided ineffective assistance of

appellate counsel in failing to raise the prosecutorial misconduct claim based on the State' s appeal

to the   jury' s   passion and prejudice.      Accordingly, we grant this petition, reverse the convictions,

and remand         to the   superior court   for further   proceedings.      We decline to address the remaining

issues.
No. 45163- 8



                                                  FACTS


                                          I. BACKGROUND FACTS


        On December 19, 2008, T.M. 1 called 911 and reported that her 17 -year-old daughter A.W.2 .

had been raped at knifepoint. The State charged Parker by second amended information with first

degree kidnapping while armed with a deadly weapon, first degree rape while armed with a deadly

weapon, and first degree robbery while armed with a deadly weapon.

        We summarized the trial testimony in Parker' s direct appeal:

                 A.W. testified that she was waiting for a Tacoma bus to take her home when
        a brown car drove by. A heavy snow had fallen that day. Parker, the driver of the
        brown car, asked A.W. if she wanted a ride and pulled into a nearby parking lot.
        A.W. became nervous and began walking toward a different.bus stop. When Parker
        drove by a second and third time, A.W. decided to cut through an alley.

                  When A.W. did so, Parker drove into the alley, got out of his car, and
        grabbed    herby the arm. A.W. testified that he held a knife to her throat and said
        he would not harm her if she kept quiet and cooperated. He pushed A.W. toward
        his car, tied her wrists behind her back with plastic bindings, and shoved her into
        the backseat so that she was lying on her side, facing the driver' s seat.

               A.W. testified that Parker drove for about a half hour to an open area
        without nearby buildings. Parker then untied her bindings and told her to remove
                      03
        her jacket.        He went through A.W.' s jacket and purse, removing four small bags
        of marijuana and some        cash.   He again showed A.W. the knife and told her to
        cooperate in what was just a robbery. After searching through the rest of her things
        and    inside her   underwear   for money, Parker forced A.W. to disrobe. She testified




 1 We refer to T.M. by her initials to protect the victim' s privacy.

2 We refer to A.W. by her initials to protect her privacy. See Gen. Order 2011- 1 of Division II,
In re the Use of Initials or Pseudonyms for Child Witnesses in Sex Crime Cases, available at:
http:// www.courts.wa.gov/ appellate—trial—c ourts/.

3 A.W. also testified that at this point Parker had made her climb over the center console and she
was in the front passenger' s seat; Parker had also removed the restraints.




                                                      2
No. 45163- 8




          that he then engaged in vaginal intercourse while holding a knife to her throat,
          during which she stared at Mardi Gras beads hanging from the rearview mirror.

                  Afterward, Parker asked A.W. where she lived so he could drive her home,
            and she gave  him an address several blocks away. As he tried to leave, he got

            temporarily stuck in the snow. When Parker dropped A.W. off, she wrote his
            license plate number on her hand and walked home.


                      Within hours, officers found the license plate on a brown sedan with beads
            hanging from its rear view mirror. After the car' s impoundment, they found.a knife
            under the front passenger seat; an expert testified that Parker' s fingerprint was on
            the knife. 41 Officers also found plastic cordsE51 in the driver' s side door pocket.
            A.W. identified Parker from a photo montage but was not sure whether the knife
            from the car was the one he had used. She denied knowing Parker or meeting him
            to sell drugs.


                      Parker' s ex- girlfriend testified that he arrived at her home on the night of
            the robbery, looking disheveled. He told her he had used a knife to take marijuana
            from a girl. E61 She denied telling a detective that she deleted A.W.' s first name and
            number from Parker' s phone. E71




4 The print was on the tip of the blade.
5
    One   of   the   detectives   characterized        the   cord    found in the    car   as "   electrical cord."     7 Report of
Proceedings ( RP)          at   708.     According to his ex- girlfriend, Parker was studying to become an
electrician.




6 The ex- girlfriend, Dancia Birka, also testified that Parker told her that he had known the girl
through a family member and that either he or the family member had previously purchased
marijuana       from her.        He also told Birka that he had called the girl and arranged to meet her to
purchase some          drugs. When        she got     in his   car   he told her that it   was " a   lick bitch," took the drugs,
and told her to get out of the car. When she would not leave the car, he pulled a knife and forced
her out of the car. After he found out his mother' s car had been impounded, he was " concerned
that the knife was        in there."      6 RP   at   549. Birka       also   testified that Parker     had    given   her   a $   10 bill
and that he had thought about leaving for Arizona shortly after the incident.
7                                                                                                        for          Amber."       6 RP
    Birka   asserted    that    she   had told the    officer   that   she    had deleted   a number           an "

at   560.      Detective Jennifer Quilio later testified that Birka had told her that she had deleted a
number       for   someone with        A.W.' s first    name     from Parker'     s phone.
No. 45163- 8




                     Detective Brad Graham eventually took A.W. to an open lot outside the city
             limits where officers believed the robbery had occurred. A. W. became upset when
             they arrived and said, " This is it." 7 Report of Proceedings at 657. The property
             owner testified that after a large snowstorm in December 2008, he had noticed tire
             marks in the snow that looked as though a car had been stuck before gaining
             traction. A.W. also identified the alley in which Parker grabbed her.

                    Testing of sperm samples gathered from A.W. revealed the source to be her
             boyfriend but not Parker. [81 A.W. admitted spending the morning and afternoon
             before the robbery with her boyfriend.

                      Officers established that the brown sedan belonged to Parker' s mother and.
             that Parker    sometimes       drove it. After Parker' s mother testified that she used the
             knife under the seat to scrape ice from the windshield, Detective Graham testified
             that Mrs. Parker could not explain the [ why the knife was in the car] when he
             interviewed her.


State   v.   Parker, 166 Wn.        App.     1012, 2012 WL 295425             at *   1, 2 ( 2012).


             In addition, A.W. admitted that on the day of the incident, she had told her mother that she

                                                          friends             than going              her boyfriend.      She also
was     going to      spend   the   day    with    some              rather                     see




admitted       that   she   had   not   told her   mother   that   she   had had     sex with    her boyfriend that       day.   She


further admitted that she had first told the nurse who examined her at the hospital that the last time

she   had intercourse before the incident                 was   in   May    or   June    of   that   year.   But when the nurse


explained               she   was   taking    certain     samples,       A.W. told the        nurse   that   she (   A.W.) had had
                why


intercourse the day before the incident. A.W. testified at trial, however, that she had unprotected

intercourse with her boyfriend on the day of the incident.




8 A.W. did not reveal to Detective Graham that she had had intercourse with her boyfriend on the
date of the incident until after the officer received the DNA test results from the rape kit in May
2009. The detective testified, however, that he had not previously asked A.W. if she had had sex
with another man on the day of the incident.



                                                                     M
No. 45163- 8




        A.W. also denied trying to call anyone immediately after Parker dropped her off near her

home. A.W.' s boyfriend, however, testified that she had called him on another person' s cell phone

that she had borrowed from someone outside a store and told him that she had been raped.


        A.W. admitted that during the investigation she had not told the whole truth about having

been with her boyfriend, having had intercourse with her boyfriend on the day of the incident, or

the marijuana. But she asserted that she had only lied about the things she thought she would get

in trouble for.

                                         II. CLOSING ARGUMENT AND VERDICT


            The State began its closing argument by stating:

                      Good morning ladies             and gentlemen      of   the   jury.       December 19th, ,2008;

            A.W.' s] life was irrevocably changed on that dark, cold day in December. It is no
            overstatement        to say that,   on   that   day, [ A. W.] experienced a waking nightmare. On
            that day, she was kidnapped, raped, and robbed by that man, Shamarr Derrick
            Parker.
                       A.W.] was approached as she waited for the bus on 38th and Pacific. The
            defendant      circled   her.    She     walked    away, trying to      get       away from him.      It was a
            sick and twisted game of cat and mouse.


8 RP   at   670 ( emphasis        added).    Parker objected, but before he could explain his objection, the trial

court overruled the objection.


            The State continued:


                      Thus, began a         sick and     twisted   game of cat and mouse.             As the defendant
            stalked [ A. W.]      as she walked along those snowy streets.
                      And then she made a catastrophic error when she walked into that alley
            trying    to   get   away from the defendant, trying to               get   to her friend'     s   house.   She

            walked down that alley, and that' s when he grabbed her. He grabbed her; he held
            a   knife to her throat; he       said, "[   C] ooperate,   and   I   won'    t   stab you."   He forced her
            over to the rear part of his mother' s car, and he tied her hands behind her back with
            those plastic ties. He shoved her into the back seat of that car. Imagine her terror
            curled up in that car, not knowing whether she was going to live or die, not knowing



                                                                    5
No. 45163- 8




       where she was going to be taken, not knowing whether or not she would ever she
       her friends or family ever again.

                 For [ A. W.], there is that         spark of    hope.    Maybe she is not going to die.
       Maybe she is not going to get raped because, surely, by now, that thought has
       certainly crossed her mind. Maybe this is just going to be a robbery.
                 Then, the defendant        says, "   Take   off your clothes."      She does so because he
       has that knife.Imagine her terror sitting there next to naked in this empty field,
       nowhere to run, nobody to help, no phone to callfor help.

8 RP at 671- 72 ( emphasis added)


       Parker    again objected,        arguing, "    Counsel keeps referring to terror and fear, basically,

playing to the   prejudices and     the    passions of   the   jury   as opposed     to the facts   of   the   case."   8 RP


at 672. The trial court overruled this objection.


       The State continued:.


                 Again, imagine her terror, nowhere to run, nowhere to go for help, nobody.
        to call. It' s just her, the defendant, and the knife.
                The defendant climbs on top of her, lifts that lever back, pushes her back,
        and he rapes her. He rapes her. As he rapes her, his body moves in and out, in and
        out. Imagine what [ A. W.] must have thought. Imagine how long it must have
       seemed      for [ A. W.],   an   eternity.   She focused on the beads in the rearview mirror,
        letting her mind wander, trying not to think about the horror that was being
        perpetrated upon      her   by    the defendant.         And then it eventually      stops.      She gets
        dressed,   and   the defendant      drops her   off with    the   words, "   Well, let this be a lesson
        to you for walking home alone. I hope you' ve learned your lesson." 191
8 RP at 672- 73 ( emphasis added).


        After the State discussed the jury instructions and the elements of the crime, it discussed

credibility determinations. It argued to the jury:




9 Parker objected to this as a mischaracterization of the evidence; the trial court overruled that
obj ection.




                                                             C
No. 45163- 8




                     Beginning, first, with [ A. W. ],consider the experience she had to go through,
          not only was she kidnapped, raped, and robbed, but she had been forced to tell her
          story over and over and over. It' s notjust something that ends when she gets home
          and the door opens and her mom is there. It continues. It continues. She tells her
          mom what            has happened.       She has         collapsed on       the floor hysterical.     She tells the.
          9- 1- 1 dispatcher          what      happens [     sic].    Then, she is taken to a hospital in an
          ambulance.           While at the hospital, she is seen by an emergency room doctor, and
                                                            10]
          then    she    is   seen   by   the [ S. A.N.E.         nurse.        She has [ to] tell the S. A.N.E. nurse all
          about it. She is interviewed by two officers, Officer Scripps and Officer Hernandez,
          who arrived at the hospital. She is then interviewed by Detective Graham a couple
          of    different times. Again, forced to                  relive       it. She is taken to the scene once it is
          located by                                  it. She talks about it in a defense
                              Detective Graham, forced to              relive

          interview, and then she comes in here and she has to tell it to a room full of
          strangers.           What happened to [ A. W. ] on December 19th, 2008 didn' t end on
          December 19th, 2008. It kept going.
                     There is        some suggestions made            was fabricating, that
                                                                       that       perhaps [   A. W.]
          she was mad at her boyfriend because he wouldn' t give her a ride home, and she
          was mad at          the defendant - 1111



                 That she was mad at the defendant because he stole tiny bags of dope and
          that when the door opened when she arrived home and she was late beyond her
          curfew, she saw her mom' s face, and she knew her mom was going to be angry. At
          that    moment,         she     decided to fabricate              a    rape.    Is that   reasonable?     It' s not

           reasonable,         ladies     and   It is not reasonable by any stretch of the
                                                gentlemen.

           imagination. She is mad at her boyfriend, Justin Lyons, because he won' t give her
           a ride.   What does            fabricating   a rape get     her? She is mad at the defendant because
           he   steals         Isn' t that just the cost of doing business if you are, in fact, a
                          her dope.
           drug         She is a few hours late, and the worst thing that happens to her is she
                  dealer?
           gets grounded: So instead of just taking the grounding, she decides to fabricate a
           rape?     None of that is reasonable.
                        A.W.] has been remarkably consistent throughout each and every telling of
           what has happened to her.


8 RP at 677- 79 ( emphasis added).




 to
      S. A.N.E. is the        acronym      for " sexual   assault nurse examiner."              5 RP at 365.

 11
      Parker    objected,      arguing that " counsel has to          make         her   own arguments."     8 RP at 678. The trial
 court overruled that objection.




                                                                       7
No. 45163- 8



           After       describing         the    consistencies      in A.W.' s         statements       and     testimony, the State

acknowledged that there were some inconsistencies, but it asserted that some inconsistencies were


to   be   expected      because the trial took            place a year and a           half   after   the incident.   The State then


argued, "      Look     at   those   inconsistencies        and ask yourself,           do they       matter?    They don' t because

across    the   vast   majority      of   this horrific   event, [ A. W.];       has   remained steadfast."        8 RP at 680. After


the State described some specific inconsistencies, it argued:

           Well, [ A.W.] has been subjected to one of the most horrific things that you can be
           subjected to. Is she going to be 100 percent accurate on everything? No. In the
           back seat of the car, is she looking around taking stock of whether or not there is
           an umbrella or a          baby       seat or a newspaper        in the back     seat?      She is not taking stock
           and    inventory of what is in           the back      seat.   She'   s   thinking   to herself, "Am     I going to
           die?     What is going to happen to me?"

8RPat682.


           After a lunch break, the State resumed its argument by once again referring to the incident

as " a    waking   nightmare."            8 RP at 686. Parker objected, without stating a specific ground; the trial

court     overruled          the   objection.       The State      reiterated        that A.W.        was   experiencing   a "   waking


nightmare,"        and   then described           some of   the   evidence.          8 RP at 686.


           At the end of its argument, the State argued:

                        Justice Benjamin Cardoz[ o] was a former United States Supreme Court
           Justice, and he said something that is powerful and resonates. He said thatjustice,
           though due the accused, is due the accuser as well. In this case, justice —

8 RP      at   712 (   emphasis added).            Parker objected, arguing that this statement shifted the burden.

The trial court overruled this objection.




                                                                          M.
No. 45163- 8



        The State continued:


                   Justice in this case is holding the defendant accountable for the waking
        nightmare that he foisted upon [ A. W. ] on December 19, 2008, when he kidnapped
        her, when he raped her, and when he robbed her.
                   Ladies and gentlemen, it' s no longer reasonable to doubt that the defendant
            is guilty of Kidnapping in the First Degree with Sexual Motivation; it is no longer
            reasonable to doubt that the defendant is guilty of Rape in the First Degree.

8 RP   at   712- 13 (   emphasis added).     Parker objected, again arguing that the State was shifting the

burden to the defense. The trial court overruled the objection.


            The State continued:


                   It is no longer reasonable to doubt that the defendant is guilty of Robbery
            in the First Degree. It is no longer reasonable to doubt that while doing all three
            and committing all three acts, the defendant was armed with a deadly weapon. For
            that reason, ladies and gentlemen, I' m asking that you return a verdict of what the
            evidence supports, and that verdict is guilty as charged.

8 RP at 713.


            In his closing argument, defense counsel argued that A.W. had fabricated the incident to

get out of trouble for breaking her curfew and to get revenge on Parker for stealing the marijuana

she was      planning to    sell   him.   Defense counsel also emphasized the inconsistencies in A.W.' s

statements over time and the fact A.W. had withheld information or lied about several facts that

could have gotten her into. trouble ( being with her boyfriend and carrying marijuana) until very

late in the investigation. Defense counsel admitted, however, that the State had proven a robbery

charge and asked the jury to return a guilty verdict on the lesser offense of second degree robbery

because the State had not proved that Parker used a knife in the robbery.

            In rebuttal, the State argued:


                    Now, when you are. dealing with this young woman, think about this, think
            about that in the middle of this rape, when she is in that dark field and she is trying



                                                          11
No. 45163- 8




         to keep her head about herself, she is trying to take her mind out of what is
         happening, after the rape, when she is asked about how she behaved on the ride
         home,     what   did   she   say? I didn' t want him to know he got the best of me.


8 RP   at   779.   Parker objected to this argument as mischaracterizing the testimony; the trial court

overruled the objection. The State continued:


                   She wanted to maintain her dignity. He took my body; he took my property;
            you are not going to have the satisfaction of knowing that it got to me.
                    A. W.] has weathered two          storms.           What she suffered at this man' s hands
                                                            112]
            and what she suffered on       this   stand -




              to carry a truth to you, that this man kidnapped a girl he saw waiting alone at a
            bust stop who was vulnerable. He robbed her. He raped her.

8 RP at 779- 80.


            The jury found Parker guilty of first degree kidnapping and first degree robbery.
                                                       III. APPEAL


            Parker appealed his kidnapping conviction, arguing only that there was insufficient

evidence to support that conviction because the restraint involved was merely incidental to the

robbery. We affirmed the conviction in an unpublished opinion. The direct appeal mandated on

July 12, 2012. 13

            Parker now seeks collateral review, arguing that ( 1) the State engaged several instances of

prosecutorial misconduct during closing argument, (2) the trial court erred in admitting testimony




12 Parker objected to this argument without stating any ground; the trial court overruled the
objection.



 13
      Petitioner    filed his     petition    on     July     11,       2013.    This petition is therefore timely.
RCW 10. 73. 090( 1).




                                                                   10
No. 45163- 8



from A.W.' s mother and the S. A.N.E. nurse, and ( 3) appellate counsel was ineffective for failing

to raise these issues on direct appeal. We grant this petition.


                                                             ANALYSIS


                       I. STANDARD FOR INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL


         Generally,           to be   entitled   to   collateral   relief a petitioner must      establish   that ( 1)   he was


actually and substantially prejudiced by constitutional error, or ( 2) his trial suffered from a

fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage

of justice.     In     re   Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P. 3d 450 ( 2013).                   We apply

this heightened standard of review to promote finality when the petitioner has had previous

opportunities          for judicial    review.    See In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267

P. 3d 324 ( 2011) ( heightened            standard);       In re Pers. Restraint ofIsadore, 151 Wn.2d 294, 299, 88

P. 3d 390 ( 2004) ( no          prior opportunity for review).

         But when, as is the case in. an ineffective assistance of appellate counsel claim, the

petitioner has not had a previous opportunity to obtain judicial review, this heightened standard

does   not   apply.         Coats, 173 Wn.2d          at   132; Isadore, 151 Wn.2d      at   299. "[ A] criminal defendant


has   a right     to have      effective assistance of counsel on         his first   appeal of right,"   and a defendant' s


first opportunity to raise an ineffective assistance of appellate counsel claim is often on collateral

review.      In   re   Pers. Restraint of Dalluge, 152 Wn. 2d 772, 787, 100 P. 3d 279 ( 2004). To prevail


on such a claim, a petitioner must show that ( 1) the legal issue appellate counsel failed to raise had

merit, and (2) petitioner was actually prejudiced by the failure to raise or adequately raise the issue.

Dalluge, 152 Wn.2d at 787. A petitioner can show that he was actually prejudiced in this context

if he can show that there is a reasonable probability that but for his appellate counsel' s



                                                                    11
No. 45163- 8



unreasonable failure to raise the issue, he would have prevailed on his appeal. Dalluge, 152 Wn.2d


at 787- 88.


  II. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR FAILING TO RAISE PROSECUTORIAL
                                                           MISCONDUCT


          Parker first argues that the State engaged in prosecutorial misconduct when it (1) appealed

to the   jury' s   passion and prejudice, (          2) improperly commented on Parker' s right to trial and right

to confront witnesses by telling the jury that A.W. had.been forced to relive the incident because

she had been forced to tell her story over and over and forced to tell the story to the jury, and ( 3)

shifted the burden of proof to Parker by arguing that it was no longer reasonable to doubt Parker' s

guilt.     He also argues that his appellate counsel was ineffective for failing to raise these

prosecutorial misconduct claims on direct appeal. We agree that appellate counsel was ineffective


for failing to raise the appeal to passion and prejudice prosecutorial misconduct claim on direct
appeal.



                                     A. PROSECUTORIAL MISCONDUCT STANDARDS


          To succeed on this ineffective assistance of appellate counsel claim, Parker must show that

his   prosecutorial        misconduct           claim   had   merit.      Dalluge,   152 Wn.2d   at    787.   To establish


prosecutorial misconduct during closing argument, Parker must first establish that the argument at

issue    was   improper. State            v.   Emery,   174 Wn.2d 741, 755, 278 P. 3d 653 ( 2012). If he meets this


burden,     we     must    then determine            whether   the   improper    statements   were    prejudicial.   Emery,

174 Wn.2d          at   755.   Prejudice exists when there is a substantial likelihood that the misconduct


affected    the    verdict.    Id.   at   760- 61.   We review a prosecutor' s remarks during closing argument in




                                                                     12
No. 45163- 8



the context of the total argument, the issues in the case, the evidence addressed in the argument,


and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003).

                                                B. IMPROPER ARGUMENT


        Parker first argues that the State' s repeated characterization of the incident as a " waking

nightmare"     and   repeated    request      that the     jury. "imagine [   A.W.' s] terror"     during the incident

amounted to an improper appeal to the jury' s passion and prejudice. Br. in Support of PRP ( PRP)

at 22- 23, 25. Parker objected to these references on the same grounds. We agree with Parker that

the repeated invitations to the jurors to " imagine [ A.W.' s] terror" were improper when we consider

the State' s argument as a whole.


         The State has wide latitude in closing argument to the jury and may draw reasonable

inferences from the     evidence.       State   v.   Thorgerson, 172 Wn.2d 438, 448, 258 P. 3d 43 ( 2011).         An



appeal to the jury' s " passion and prejudice" through use of inflammatory rhetoric, however, is
misconduct. State v. Belgarde, 110 Wn.2d 504, 507- 08, 755 P. 2d 174 ( 1988).

         Parker   relies on    State   v.   Claflin, 38 Wn.     App.   847, 850- 52,   690 P. 2d 1186 ( 1984), for the

premise that it is serious misconduct for the State to tell the jurors to place themselves in the

victim' s   position   and "   exhort them to decide the case based on the resulting passions and

prejudices."    PRP at 25. The State argues that the argument here was not a bare appeal to passion

and prejudice, as was the case in Claflin, but, rather references to the heinous nature of the crimes

and their effect on the victim, which is proper argument.

         In Claflin, the State,        over   Claflin' s   objection, "   read a poem by an anonymous rape victim

to show ` most poignantly'         how      one of    Claflin' s   victims ` probably   felt."'   Claflin, 38 Wn. App.

at   849.. On appeal, Claflin, who had been convicted of rape and indecent liberties perpetrated




                                                                13
No. 45163- 8



against two young girls, argued that the State' s closing argument appealed to the jurors' passions

and prejudices and assumed                facts   not   in   evidence.        Id.   at   849. We    agreed,   stating that "[ i] n such


an emotionally charged trial, the use of a poem utilizing vivid and highly inflammatory imagery

in describing rape' s emotional effect on its victims was nothing but an appeal to the jury' s passion

and prejudice."          Id.   at   850- 51 ( citing State        v.   Stacy, 355 S. W.2d          377, 380- 81 ( Mo. 1962)).              We


also determined that the poem contained several prejudicial allusions to matters outside of the


evidence presented at trial and held that the reading of the poem was so prejudicial it could not

have been      cured.     Claflin, 38 Wn.         App.       at   851.    We acknowledged, however, that a reference to


the heinous nature of a crime and its effect on the victim can be proper argument if it does not

appeal to the passion and prejudice of the jury. Id. at 849- 50.

            Although the State' s argument here was not as egregious as the improper argument ,in

Claflin, the State' s invitations to the jurors to " imagine her terror" were not just references to the

nature of the crime or its effect on A.W.; they amounted to an appeal to the jurors' passions and

prejudices.     8 RP      at   671- 72.    Asking the jurors to " imagine her terror" in " not knowing whether

she was going to live or die, not knowing where she was going to be taken, not knowing whether

or not she would ever she              her friends   or   family ever again," and to " imagine her terror sitting there

next   to   naked   in this empty field,       nowhere        to   run,   nobody to       help,   no phone    to   call   for   help,"   served




no purpose other than to evoke the jurors' sympathies for A.W. and arouse their prejudices against

Parker. 8 RP        at   671- 72. Even though the State argued that the horrific nature of the experience


could explain some inconsistencies between A.W.' s statements and her testimony, the State did

not make such an argument until much later in its closing, and it never tied that argument to the

argument at issue here.




                                                                         14
No. 45163- 8




          Furthermore, the State' s later ( 1) emphasis on how traumatic it was for A.W. to essentially

relive   the incident every time         she   talked to   someone about        it   and when she      testified   at   trial, ( 2)


argument    that justice    was also    due the "   accuser,"      and ( 3) reference to what A.W. had " suffered at


this   man' s   hands    and what she suffered on [         the]    stand"   to "   carry a truth" to the jury, although

arguably    not   improper       arguments     in their   own right, contributed         to this   error.   These arguments


magnified the State' s argument appealing to the jury' s passion and prejudice by repeatedly

           the jurors'                 to the emotionally      devastating      aspects of    this incident.    8 RP at 712,
drawing                   attention




779- 80. Accordingly, we hold that this argument was improper.

                   C. SUBSTANTIAL LIKELIHOOD MISCONDUCT AFFECTED THE VERDICT

          If Parker can show that we would have found this error prejudicial and reversed his

convictions on direct appeal, he is entitled to collateral relief based on ineffective assistance of

appellate counsel. Because Parker objected to this argument, he would have been able to establish

prejudice on direct appeal if he could show that there is a substantial likelihood that the misconduct


affected the verdict. Emery, 174 Wn.2d at 760. We hold that there was such a likelihood here.
           This   case   ultimately came down to A.W.'                s   credibility.    In cases in which credibility

determinations are key, there is a substantial risk that the jury' s verdict could be affected by an

improper appeal to the jury' s emotions. See State v. Padilla, 69 Wn. App. 295, 302, 846 P.2d 564

 1993) (   in a swearing contest, the likelihood improper questioning about another witness' s veracity

affected    the   verdict   is   substantial).   Parker acknowledged in closing argument that the evidence

was sufficient to establish a robbery when he asked the jury to convict him of the lesser second

degree robbery          offense.     He did not, however, acknowledge that ,he had kidnapped A.W. or


committed first degree robbery by robbing her with a deadly weapon. All of the evidence related



                                                               15
No. 45163- 8




to the kidnapping and much of the evidence regarding whether Parker used a knife was based on

A.W.' s statements to others and her testimony, so the jury' s credibility determinations were vital.

Given this, we hold that there was a substantial likelihood that the misconduct affected the verdict

and if appellate counsel had raised this claim on direct appeal, we would have found prosecutorial.

misconduct. Thus, Parker was prejudiced because he would have prevailed had the challenge been

raised in his direct appeal. Accordingly, Parker has shown that he received ineffective assistance

of appellate counsel on this ground.


        Accordingly, we grant this petition, reverse the convictions, and remand for further

proceedings. Because we grant the petition on this ground, we do not reach any of the other issues

because they can either be addressed on remand or may not reoccur.

        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 2. 06. 040,

it is so ordered.



                                                                              w

                                                       SUTTON, J.
 We concur:

        R




 B? ; RC-, ,   A.C T




 L E, J.




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