                                                                                                       FILED
                                                                                                 COURT OF APPEALS
                                                                                                     DIVISION II

                                                                                               2G111 AUG - 5       A1! 8 : 38

                                                                                                STATE OF WASHINGTON

    IN THE COURT OF APPEALS OF THE STATE OFBWASr* GTON
                                              DEPUTY

                                                       DIVISION II


STATE OF WASHINGTON,                                                                   No. 43987 -5 - II


                                     Respondent,                                      Consolidated with:


       v.

                                                                                           No. 45047 -0 -II
JASON ANTHONY FITZGERALD,
                                                                                 ORDER GRANTING MOTION
                                                                             FOR RECONSIDERATION AND
                                                                             AMENDING OPINION IN PART
                                     Appellant.




       Appellant Jason Fitzgerald has moved for reconsideration of the opinion issued by this

court on   June 17, 2014. After due consideration, we grant the motion and amend the opinion in


part as follows.


        On page 15 of the opinion, we insert the following paragraph to the end of section B.

INEFFECTIVE ASSISTANCE OF COUNSEL:


                   Fitzgerald also argues that he received ineffective assistance of counsel
        because counsel failed to object when the prosecutor asked one question about the
        effect     of   the    burglary   on     JE.    Assuming,           without    deciding,     that    counsel' s

        performance was deficient for failing to object to the testimony, Fitzgerald has
        failed to       meet   his burden to      show prejudice.             Fitzgerald argues that there is a
        reasonable probability that the result of the trial would have differed because the
        testimony was an appeal to the jury' s emotions. We disagree. Here, the jury was
        specifically instructed not to let their " emotions overcome [ their] rational thought
        process"        and   to decide the      case on   the fact        and   the law   rather   than " sympathy,
        prejudice, or personal preference."                CP   at   23.    We presume that juries follow the
        court' s   instructions.     State v. Weber, 99 Wn.2d 158, 166, 659 P. 2d 1102 ( 1983).
        While      we     recognize       that    an    appeal       to    passion    and      prejudice      in   some
        circumstances could be powerful enough that instructions such as these may not
        be  sufficient to cure the impropriety, that is not the case here. Accordingly,
        Fitzgerald has          failed to   meet       his burden to demonstrate                prejudice,     and his
        ineffective      assistance of counsel claim must             fail.
No. 43987 -5 -II




         We do not amend any other portion of the opinion or the result.

         It is SO ORDERED.


         DATED this , ,          day of   at   k
                                                   A "" ,
                                                               2014.




We   concur:
                                                                                                                FILED
                                                                                                        COURT   OF
                                                                                                                  APPEALS
                                                                                                            DIVISION 11 •
                                                                                                   2/1111 JLIN 17 AM. 8: 35
                                                                                                        s



                                                                                                   S'
                                                                                                                WA,
                                                                                                                      NGTON
                                                                                                   Ely


        IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                 DIVISION II


STATE OF WASHINGTON,                                                           No. 43987 -5. - I
                                                                                             I


                                      Respondent;
                                                                           Consolidated with:
          v.
                                                                               No. 45047- 0- 11
JASON ANTHONY FITZGERALD,
                                                                        UNPUBLISHED OPINION
                                      Appellant.




          LEE, J..—        A jury found Jason Anthony Fitzgerald guilty 'of second degree burglary,

attempted       residential    burglary,   and second   degree theft.   Fitzgerald appeals, arguing that the

prosecutor       committed       misconduct    during    closing   argument,    and he     received ineffective


assistance of counsel because defense counsel failed to object to the prosecutor' s closing

arguments.        Fitzgerald also argues that the trial court violated his right to a public trial and his


right to be present by allowing the attorneys to exercise peremptory challenges at a sidebar

conference.       After filing his direct appeal, Fitzgerald, pro se, filed a CrR 7. 8 motion which the

trial   court    denied.      He appealed and a commissioner of' this court consolidated Fitzgerald' s

appeals.       We affirm Fitzgerald' s convictions and the trial court' s order denying Fitzgerald' s CrR

7. 8   motion.
No. 43987 -5 -II1
No. 4.5047 -0 -II


                                                            FACTS


         Levi Thompson lived in a house on Summit Lake Road with his girlfriend, Amanda

Easterday, and Easterday' s son, JE. 1 On the morning of April 5, 2012, JE ran into Thompson.
and   Easterday'    s room       yelling, " We   are   being   robbered.     We    are    being   robbered."    1 Report of

Proceedings ( RP)      at   110.     Thompson opened the curtains and saw one man pulling a tarp over

the back of a truck and another man running toward the truck from the . ack of the house. One of
                                                                      b

the men got in the driver' s side of the truck and the other man got into the passenger side of the

truck. Thompson also saw his generator in the back of the truck. Thompson immediately called

the police and gave them a detailed description of the truck and the generator in the back of the

truck.



         At 9: 14 AM Thurston County Sheriff' s Sergeant James Dunn, along with seven other

officers,    responded      to    a. call   reporting   a   burglary in     progress . at    Thompson'    s    house.   The


dispatcher provided the description of the truck to all seven officers who responded to the call.


Sometime between 9: 25 AM and 9: 39 AM, Thurston County Sheriff' s Deputy Thomas Cole,

observed     a   truck matching the          description    of   the   suspect   truck.    Cole performed a felony, or

high - isk, traffic stop.
     r                           Responding deputies .arrested the truck' s three occupants, Fitzgerald, Ty.

Martin, and Michael Cairns.


         Sergeant Dunn brought Thompson to the scene of the arrest. Thompson identified Martin

and Cairns as the two men he saw getting into the truck. Thompson also identified Fitzgerald by

name.       In addition, Thompson identified many pieces of property in the truck as his property,



 1 Because JE is a minor, his initials are used to protect his privacy.


                                                                 2
No. 43987 -5 -II/
No. 45047 -0 -11 .


including      the . generator.       There were also several items in the truck that Thompson did not


identify as his property, including masks, gloves, and tools.

         The State charged Fitzgerald with second degree burglary, attempted residential burglary,

and second       degree theft. The State also charged Fitzgerald with an aggravator because people


were in the home at the time of the attempted burglary.

         A jury trial began on September 19, 2012. Jury voir dire was conducted in open court, on

the   record, and with         Fitzgerald    present with     his attorney.          After completing voir dire, the trial

court   held    a side   bar   with   the   attorneys   to   complete        jury   selection.   After the sidebar, the trial


court made the following record:

          I want to memorialize the sidebar we had just before the jury selection
          preemptories were exercised. There was a challenge for cause of Juror No. 13 by
             defense         It was not objected to by the State, and based upon what I
                       counsel].

          heard as an answer by Juror 13 that he already made up his mind in this case, he
          was excused for cause.


1 RP at 26 -27.


          During trial, Sergeant Dunn, Deputy Cole, and Thompson testified to the above facts.

Thompson testified that he knew Fitzgerald because Fitzgerald was a friend of Thompson' s

cousin,      Josh Saunders.           Fitzgerald had also been a tenant in a, property Thompson helped

manage,      but Fitzgerald       was evicted when           he   got   significantly behind       on   rent.   A couple days


prior   to the   burglary,     Saunders     was at   Thompson'          s   home. While Saunders was at the home, he


asked Thompson several questions about when he went to work, who he worked for, and what

kind    of   property Thompson kept in his shop.                   Saunders also spent time wandering around the •

property.
No. 43987 -5 -II/
No. 45047 -0 -II


        The State' s theory of the case was that Fitzgerald was an accomplice in the burglary

because he was in the truck and could have been the driver, he was the only one of the three

suspects that was connected to Thompson, and he could have had knowledge about what

property was in the home. In closing argument, the prosecutor stated:

                Well, I' m going to talk a little bit more about it, but I came up with the
        only thing I could really think of, which is kind of something my mom used to say
        when I was younger, birds of a feather flock together, and she usually meant that
        to mean choose your friends wisely, because the people you hang out with usually
        have common interests, and if those interests aren' t good, you' re going to be,
        involved in those.           So I want you to have that kind of mind set about these three
        individuals.


2 RP   at   304.   The prosecutor illustrated this point with a slide that showed all three suspects, in

handcuffs, with the caption " BIRDS OF A FEATHER FLOCK TOGETHER" and the scales of


justice in the background. Suppl. Clerk' s Papers ( CP) at 67. The prosecutor also argued that any

argument Fitzgerald tried to make that he was not involved in the burglary was contrary to .

common sense.         Specifically, the prosecutor argued that ( 1) burglars would not bring a person

uninvolved in the crime with them to be a witness to a burglary, and (2) burglars who had been

seen and were trying to flee from the police would not stop to pick up some person on the side of

the road.



            During closing argument, Fitzgerald' s defense counsel mentioned the " birds of a feather"

analogy several times:

                   Now, let' s go to the real crux of this whole case, which is the burglary in
            the second degree, and as I told you, I' m not disputing that Mr. Cairns and Mr.
            Martin committed a burglary in the second degree, but [ the prosecutor] told you
            the State' s case and the basis for this whole case right at the beginning he put in
            big   yellow   letters   under   the   photographs   of   the three   individuals, " Birds of a
            feather flock together."
No. 43987 -5 -II/
No. 45047- 0 -II


                 Don' t look though your instructions now. I' m being facetious. You' re not
         going to find that as a jury instruction, birds of a feather flock together... .

                           Talk about it amongst yourself and see what you remember, but that is
         the way the State does. it' s [ sic] best to twist things in the way that they think
         something happened. They think something is happenings, birds of a feather,
         they are all together, must be guilty, and then they start sort of edging the
         evidence the way they want it to show.

                    I    submit     to   you   that there is   some prejudice     in this   case.    Perhaps it' s
         natural.        Perhaps it' s natural for the police and the prosecutors to think that if
         somebody is together with a couple of bad birds, he must be a bad bird too.

2 RP at 332, 337, 338.


         The   jury found • Fitzgerald              guilty   of   second    degree   burglary,      attempted   residential




burglary,   and second          degree    theft.   The jury also found that the attempted residential burglary

was aggravated because the victim or victims were present when the crime was committed. The

trial court sentenced Fitzgerald to 89 months total confinement. Fitzgerald appeals.

         After the court entered Fitzgerald' s judgment and sentence, Fitzgerald filed a CrR 7. 8


motion   for   a new       trial.    Fitzgerald argued that he was entitled to a new trial based on newly

discovered evidence; specifically, he claimed the affidavits from three witnesses were newly

discovered     evidence.        He submitted an affidavit from Martin absolving him of involvement with

the burglary and two affidavits from people who stated that he had been with them that morning

and they dropped Fitzgerald off in the Summit Lake Area, near the Thompson' s house, around 9

AM.   The trial         court   denied .Fitzgerald'    s motion       stating, " The defendant has not meet [ sic] the


high burden for newly discovered evidence.                     The evidence is merely testimony that was known

to the defense before trial."             CP ( No. 45047 -0 -II) at 72. Fitzgerald appealed, and a commissioner


of this court consolidated Fitzgerald' s two appeals.




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No. 43987 -5 -II/
No. 45047 -0 -I1

                                                             ANALYSIS


A.           PROSECUTORIAL MISCONDUCT,


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


prosecutor' s conduct was                 improper   and prejudicial.        State v. Thorgerson, 172 Wn.2d 438, 442,


258 P. 3d 43 ( 2011).            To show prejudice, a defendant must show a substantial likelihood that the

misconduct affected             the   verdict.    Thorgerson, 172 Wn.2d              at   442 -43.   In analyzing prejudice, we

do not look at the comment in isolation, but in the context of the total argument, the issues in the

case,       the   evidence, and       the instructions    given     to the   jury.    State v. Yates, 161 Wn.2d 714, 774,


168 P. 3d 359 ( 2007), cert. denied, 554 U.S. 922( 2008).


             A defendant who fails to object to the prosecutor' s improper act at trial waives any error,

unless the act was so flagrant and i11 intentioned that an instruction could not have cured the

resulting         prejudice..   Thorgerson, 172 Wn.2d          at   443. In this instance, a defendant must show that


     1) `   no curative instruction would have obviated any prejudicial effect on the jury' and ( 2) the

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

State       v.   Emery,   174 Wn.2d 741, 761, 278 P. 3d 653 ( 2012):                        Thus, 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.

                 In closing     argument,      prosecutors are afforded wide latitude to draw and express

reasonable          inferences from the          evidence.   State v. Reed, 168 Wn. App. 553, 577, 278 P. 3d 203,

review           denied, 176 Wn.2d 1009 ( 2012). "            A prosecutor may make use of graphics in closing

 argument           to highlight      relevant    evidence . . .         but prosecutorial misconduct may deprive a




                                                                     6
No. 43987 -5 -I1/
No. 45047 -0 -II

defendant         of   his   constitutional right           to a fair trial."         State   v.   Hecht, _     Wn.      App. ' ,   319 P. 3d


836, 840 ( 2014).


          Fitzgerald argues that four instances of prosecutorial misconduct during closing argument

require     reversal: (         1)    the     prosecutor' s         use    of    the " birds         of   a   feather"     analogy and the

corresponding            slide, (    2) the prosecutor improperly appealed to the jury' s passion and prejudice

by   stating the JE           was scared         by   the   burglary, ( 3) the prosecutor trivialized the burden of proof,

and ( 4) the prosecutor               improperly       disparaged defense               counsel.      Although the prosecutor' s use of

the " birds        of a       feather"      analogy and the corresponding slide was improper and we do not

condone it, Fitzgerald fails to meet his burden to show that the prosecutor' s conduct resulted in

an   enduring          prejudice      that could      not    be   cured    by    an   instruction. The prosecutor' s other conduct


was not improper.


           1. "    Birds of a Feather" Analogy and Slide

           Fitzgerald          argues       that the "      birds   of a   feather"      analogy violated his right to a fair trial

because it        urged       the    jury   to   convict     him    on    improper       grounds.         Specifically, Fitzgerald argues

that the prosecutor urged a conviction by arguing guilt by association. Fitzgerald also argues that

the prosecutor committed misconduct by presenting evidence that was not admitted at trial (i.e.,

an   altered       and       captioned       photograph).            Fitzgerald fails to meet his burden to demonstrate

prosecutorial misconduct.



           In In       re    Personal Restraint of Glasmann, 175 Wn.2d 696, 705, 286 P. 3d 673 ( 2012),                                   our



 Supreme Court reversed the defendant' s conviction based on slides that the prosecutor used at


 closing    argument,          many      of which were photos altered with captions or                          phrases. The court noted


that it is improper to               submit evidence           to the     jury   that   was not admitted at         trial.    Glasmann, 175
No. 43987 -5 -11/
No. 45047 -0 -II


Wn.2d     at   705.   The State attempts to distinguish Glasmann by arguing that the photos were not

altered   because the           caption    was    on   the     slide,      below the         photograph,        rather than on the


photographs themselves. This argument is not well-taken.


          In Glasmann, the         court noted "[      t] here certainly was no photograph in evidence that asked

 DO YOU BELIEVE HIM ? "' 175 Wn.2d                             at   706.    Likewise, here, there was no photograph in


evidence       noting " BIRDS OF A FEATHER FLOCK TOGETHER." Nor was there a photograph


with all three suspects together, in handcuffs, admitted into evidence. While there may be times

when minor alterations to evidence may be helpful to highlight specific details for the jury, it is

ill-advised to alter evidence to create imagery not admitted into evidence that is specifically

designed to influence the              jury' s deliberations.         See Glasmann, 175 Wn. 2d                  at   706.    Nothing in
                                                                                                                                        2
Glasmann indicates the. court intended its                holding to        be   read as    narrowly      as   the State    suggests.




          Prosecutors represent the State as quasi-judicial officers and they have a " duty to subdue

their   courtroom zeal        for the   sake of   fairness to       a criminal        defendant." State v. Fisher, 165 Wn.2d


727, 746, 202 P. 3d 937 ( 2009). "               A `[ flair    trial' certainly implies a trial in which the attorney

representing      the   state   does    not   throw the   prestige of           his   public office ...        and the expression of


his   own   belief    of guilt   into the     scales against        the   accused.'"        State v. Monday, 171 Wn.2d 667,




   We     also   note   that Glasmann is           not    as   broad       as    Fitzgerald     seems     to    suggest.      At 'times,

Fitzgerald seems to suggest that any time the State uses a slide that is prejudicial to the defendant
misconduct       has    occurred.        Glasmann      stands       for   no such        thing.. In fact,. Glasmann agrees that
technology certainly has its place in the courtroom. However, using technology crosses the line
into prosecutorial misconduct when the prosecutor violates the well - established principles of
appropriate conduct ( e.         g.,   using evidence that was not admitted at trial, abusing their role as a
quasi- judicial       officer,    offering improper            opinions,         etc.)    and   causes    an    enduring, incurable
prejudice.       Accordingly, the defense should focus on these principles rather than the use of
technology during         a   closing    argument.
No. 43987 -5 -II/
No. 45047 -0 -II


677, 257 P. 3d 551 ( 2011) (        alterations   in   original) (   quoting State v. Case, 49 Wn.2d 66, 71, 298

P. 2d 500 ( 1956)).     Here, the prosecutor violated the duty to ensure a fair trial for the defendant.

          Fitzgerald asserts that the prosecutor used-the slide to improperly argue that Fitzgerald

was    guilty   by   association.   The prosecutor' s words in closing argument did not argue guilt by

association.      But that fact does not excuse the prosecutor from using a visual aid which clearly

illustrates that     concept.    Looking at the slide itself, the only reasonable interpretation that this

court can see is the implication that Fitzgerald is guilty because he is directly connected with the

other   two defendants.         The prosecutor even juxtaposed the image with the scales of justice —


throwing the prestige of his office behind the opinion that Fitzgerald must have been involved in

this   crime    because he   was with the other         defendants. This is particularly concerning when the


State' s entire case is based on a theory of accomplice liability. •

          The prosecutor' s duty in this case was to apply the facts to the law. Based on the facts of

this case, the prosecutor should have been more than capable of performing this task without

resorting to using an illustration that serves no other purpose than to leave the jury with an image

depicting the defendant in handcuffs next to the other suspects directly involved in the crime.

The use of the image in this case is clearly improper conduct.

          However, Fitzgerald did not object to the prosecutor' s conduct during closing argument.

As a result, he must establish that the prosecutor' s misconduct was so prejudicial that it caused


an enduring prejudice that could not have been cured by a timely objection.

          Because the prosecutor' s slide was improper, we must presume that, had Fitzgerald


objected prior to the prosecutor' s closing argument, any reasonable judge would have excluded

the    slide.   Furthermore, had Fitzgerald objected during closing argument any prejudice could



                                                              9
No. 43987 -5 -I1/
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have been mitigated by the trial court instructing the jury to disregard the slide and instructing

the jury as to the proper standards for accomplice liability. State v. Hanna, 123 Wn.2d 704, 711,
871     P. 2d 135,     cert.   denied, 513 U. S.. 919 ( 1994) ( We presume juries follow the court' s

instructions.).


          In addition, the prosecutor himself mitigated some of the prejudice caused by the use of

the improper image.              The prosecutor did not use the image repeatedly throughout closing

argument,      and    his   reference   to the " birds   of a   feather"   analogy was brief and not pervasive

throughout      his    argument.        The prosecutor also repeatedly referenced the appropriate law

regarding accomplice liability and applied the facts to the law in a manner that illustrated an

acceptable      argument       supporting Fitzgerald'    s guilt as an accomplice.      Therefore, the jury was,

overall, given a complete and proper view of the law and facts of this case.

          The   prosecutor' s conduct was        improper,      and we   do   not condone   it. However, given the


specific facts of this case, Fitzgerald has failed to meet the heightened standard of establishing an

enduring prejudice that could not have been cured by a timely objection and instructions to the

jury.

          2.    Appeal to the Jury' s Passion or Prejudice

          Fitzgerald argues that the prosecutor improperly appealed to the jury' s passion and

prejudice by urging a verdict based on the burglary' s effect on JE. At trial, Thompson testified:

                      Yeah, [ JE] doesn' t like to   go   to bed  We moved his bed away
                                                                   anymore.


           from the windows, and he constantly asks us if he can sleep in our room with us,
           and we tell him it' s all good, we' re going to put the dog under your bed and
           everything, and it will be all right, and he still comes out and in the middle of the
           night sometimes around 10: 00, 11: 00, sometimes midnight.




                                                            10
No. 43987 -5 -II/
No. 45047 -0 -II


                   It   was a change.    Normally, I   would       tell him lights   out at   9: 30. You have
         to go to school in the morning, and he normally wouldn' t come out, unless it was
         for water or the bathroom.


1 RP at 118. During closing argument, the prosecutor made one isolated comment regarding JE:

                   During the commission of the attempted residential burglary, three people
         were    sleeping inside. As     you   heard, [ JE]   has been traumatized by these events.

2 RP at 317. Defense counsel did not object.


         Fitzgerald argues that the prosecutor' s comment urged the jury to convict Fitzgerald

based on sympathy for JE. Fitzgerald' s argument is not supported by the record.

         A prosecutor may not make statements that are unsupported by the evidence or invite the

jurors to decide a case based on emotional appeals to their passions or prejudices. State v. Jones,

71    W. . App.
       n          798, 8Q8, 863 P. 2d 85 ( 1993).. It is. clear that . he prosecutor' s comment was based
                                                                     t

on evidence      in the   record.'   Here, the prosecutor made a single comment regarding the effect of

the   burglary    on    JE.   The bulk of the prosecutor' s argument was based on what reasonable


inferences the jury could and should make-based on all the circumstantial evidence in the case.

There is no indication that the prosecutor urged the jury to convict based on the effect the

burglary had on 3E. Therefore, the prosecutor' s comment was not improper.

          3.   Trivializing the State' s Burden of Proof

          Fitzgerald alleges that the State improperly minimized its burden of proof by equating

beyond     a reasonable       doubt   with common      sense.      Specifically, Fitzgerald points to a specific

section of the prosecutor' s argument where the prosecutor allegedly equates the certainty.

required for conviction to the certainty required to make every day decisions:

          If someone had come up to you and told you, ,you know, my house just got
          burglarized, the cops were there within ten minutes, they pulled over the truck



                                                              11
No. 43987 -5 -II/
No. 45047 -0 -II


          with three guys in it and all • of the stolen property, wouldn' t you almost
          automatically say, yeah, all three of those guys, yeah, they must have burgled
          your house, because that makes sense.


2 RP at 322. Defense counsel did not object.


          A prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that

an accused receives a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111 P. 3d 899 ( 2005).

A prosecutor' s argument misstating, minimizing, or trivializing the law regarding the burden of

proof can     be improper..      State v. Johnson, 158 Wn. App. 677, 684 -85, 243 P.3d 936 ( 2010),

review denied, 171 Wn.2d 1013 ( 2011).


          Here, the prosecutor' s comments were made in the context of explaining circumstantial

evidence and common sense             inferences to the   jury. The prosecutor' s entire theory of the case

was based on circumstantial evidence and required the jury to infer that Fitzgerald was an

accomplice to the burglary because it was the only reasonable inference to be drawn from the

evidence.       The   prosecutor' s    argument   is entirely     consistent   with    the   law.   The jury was

instructed:


                   The evidence that has been presented to you may be either direct or
           circumstantial. .   The term " direct evidence" refers to evidence that is given by a witness
          who   has   directly   perceived   something    at   issue in this   case.   The term "   circumstantial

           evidence" refers to .evidence from which, based on your common sense and experience,
          you may reasonably infer something that is at issue in this case.

CP   at   24 ( Instruction No. , ).
                               5       Thus; the prosecutor' s remarks were proper within the context of


the entire argument.




                                                          12*
No. 43987 -5 -11/
No. 45047 -0 -II


         4.   Disparaging Defense Counsel

         Finally, Fitzgerald argues that the prosecutor improperly disparaged defense counsel by

implying that defense counsel was " using deception to prevent the jury from getting at the truth."

Br. of Appellant at 19. During rebuttal argument the prosecutor argued:

                   When     you   look       at [   the   whole picture], you can see            for   miles.   You can see
          everything, you can see everything that' s on the horizon, everything that' s coming
          at you, but if someone puts something in front of you and said, no, just focus at
          this, look to the left, look to the right, you can' t see everything. They•put up these
          road blocks, because they don' t want you to see what is there.        They don' t want
         you to see what you can see when you use your common sense.


                   Well, [ defense           counsel]       says,   well,   the [ sic] maybe [ Fitzgerald] wasn' t
          even   there.    So, okay, the two burglars decide as they were fleeing, let' s pick up
           Fitzgerald],  who just happens to be out walking in the Summit Lake area at 9
          o' clock in the morning. Does that make sense?
                  It makes no sense, because what [ defense counsel] has asked you to do
          and what [ Fitzgerald] hopes you do is leave your common sense out here and
          don' t take it back there.


2 RP at 341 -42, 347. Defense counsel did not object.


          It is improper for the prosecutor to disparagingly comment on defense counsel' s role or

impugn     counsel' s     integrity.     Thorgerson, 172 Wn.2d                 at   451.        For example, a prosecutor may

commit misconduct by accusing defense counsel of engaging in " sleight of hand" or using terms

such as "     bogus"    and "   deception."               Thorgerson, 172 Wn.2d            at   451 -55.    However, in rebuttal,


improper      remarks     are   not   grounds         for    reversal   if they     were "      invited or provoked by defense

 counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent

 reply   or are so prejudicial        that   a curative       instruction   would     be ineffective."          State v. Russell, 125


 Wn.2d 24, 86, 882 P. 2d 747 ( 1994), cert. denied, 514 U.S. 1129 ( 1995).




                                                                     13.
No. 43987 -5 -11/
No. 45047 -0 -1I


         Here, the prosecutor' s comments were made during rebuttal argument and were in direct

response   to defense     counsel' s argument.        During closing argument, defense counsel argued that

the inferences the prosecutor argued did not comport with the evidence, and more specifically,

that the prosecutor and the police arrested and charged Fitzgerald solely because they improperly

assumed he must be guilty because he was with Martin and Cairns. Defense counsel went,so far

as to accuse the prosecutor of relying on his own prejudice when charging and trying Fitzgerald.

In response, the prosecutor argued that defense counsel was urging the jury to look at specific

things out of context, and when the jury looked at the entire case as a whole, the prosecutor' s

theory   of   the   case was   the only   theory   that   makes sense.   The prosecutor' s comments were not

                                                                                       3
improper      and were   in   response   to defense   counsel' s   closing argument.


B.       INEFFECTIVE ASSISTANCE OF COUNSEL


         Fitzgerald argues that he received ineffective assistance of counsel because of his defense

counsel' s failure to object to the prosecutor' s statements during closing argument. As explained

above, the prosecutor' s statements regarding JE, the burden of proof, and defense counsel were

not improper; therefore, defense counsel was not ineffective for failing to object to them.

Furthermore, .
             defense counsel' s failure to object to the prosecutor' s use of the " birds of a feather"

 analogy and the corresponding slide was a legitimate trial tactic and cannot be the basis for an
 ineffective assistance of counsel claim.




 3 Fitzgerald also argues that the cumulative effect of the prosecutor' s misconduct denied him a
 fair trial. But, because we hold that there was only one instance of improper conduct, there can
 be no cumulative effect of the prosecutor' s improper conduct. Accordingly, we do not address
 Fitzgerald' s argument that there was cumulative prejudice any further.


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


deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).           Counsel' s performance is deficient if it falls below an


objective    standard of reasonableness.        State v. Stenson, 132 Wn.2d 668, 705, 940 P. 2d 1239


 1997),   cert.   denied, 523 U.S. 1008 ( 1998).        Our scrutiny of counsel' s performance is highly

deferential; we strongly presume reasonableness. State v. McFarland, 127 Wn.2d 322, 335, 899

P. 2d 1251 ( 1995).        To rebut this presumption, a defendant bears the burden of establishing the

absence     of   any   conceivable    legitimate trial tactic explaining    counsel' s   performance.    State v.


Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).              To establish prejudice, a defendant must show


a reasonable probability that the outcome of the trial would have differed absent the deficient.

performance.       State    v.   Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987).             If an ineffective


assistance of counsel claim fails to support a finding of either deficiency or prejudice, it fails.

Strickland, 466 U.S. at 697.

          Here, the defense attorney repeatedly         referenced    the   prosecutor' s "   birds of a feather"


analogy in his own closing argument. Defense counsel relied on the " birds of a feather" analogy

to undermine the prosecutor' s theory of the case; specifically, that the entire case rested on the

presumption that Fitzgerald must be involved because he was with Martin and Cairns. Using the

prosecutor' s' own argument to undermine the prosecutor' s theory. of the case is a legitimate trial

tactic. Thus, Fitzgerald cannot meet his burden to prevail on his ineffective assistance of counsel

 claim.




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C.        PUBLIC TRIAL RIGHT '


          Fitzgerald       argues   that the trial   court violated      his   right   to a   public   trial. Fitzgerald asserts


that his right to a public trial was violated when the trial court allowed the attorney to complete

jury    selection     by    completing   jury    selection      during    a side    bar.      Allowing challenges to jurors

during jury selection to be held during a side bar does not violate a defendant' s right to a public

                              App. 911,
trial. State v. Love, 176 Wn. -                           309 P. 3d 1209 ( 2013).             Accordingly, the trial court did

not violate Fitzgerald' s right to a public trial.


          The Sixth Amendment to the United States Constitution and article 1, section 22 of the.

Washington State Constitution              guarantee a          defendant the      right   to a   public   trial.   State v. Wise,


176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). This court reviews alleged violations of the public trial


right   de   novo.     Wise, 176 Wn.2d        at   9. The threshold determination when addressing an alleged


violation of the public trial right is whether the proceeding at issue even implicates the right.

State   v.   Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012). In Sublett, our Supreme Court adopted


a    two -
         part   "   experience    and   logic" test to      address     this issue: ( 1)      whether the place and process


historically        have been    open   to the   press and general public ( experience                 prong), and ( 2) whether


the public access plays a significant positive role in the functioning of particular process in

question (      logic prong).       176 Wn.2d        at   73.    Both questions must be answered affirmatively to

implicate the public trial right. Sublett, 176 Wn.2d at 73.


             Fitzgerald argues that the trial court violated his public trial right because the trial court

 conducted the peremptory challenges portion of jury selection during a sidebar conference at the

 clerk' s station.         Division Three of this court addressed this exact issue in and held that neither


    prong of the experience and logic test suggests that the exercise of cause or peremptory



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challenges must          take   place   in   public."         Love, 176 Wn.       App.   at   920.   The public trial right does


not attach to the exercise of challenges during jury selection. Love, 176 Wn. App. at 920.

          We recently adopted the reasoning of Love and held that experience and logic do not

suggest that exercising peremptory challenges at the clerk' s station implicates the public trial

right:    State    v.   Dunn,         Wn.     App. ,             321 P. 3d 1283, 1285 ( 2014).            Accordingly, the trial

court did not violate Fitzgerald' s public trial right, and Fitzgerald' s challenge fails.

D.        RIGHT TO BE PRESENT


          Fitzgerald also argues that the trial court' s jury selection procedure violated his right to

be   present.     Here, Fitzgerald       was present            during   all   the questioning of jurors.        At the end of the


jury   voir     dire, the trial    court stated, "[          Clounsel, could 1 ask you at this time to approach me at.


sidebar."        RP (   Jury    Voir Dire)     at    71.      Because Fitzgerald was present in the courtroom, it is

unclear whether           Fitzgerald    approached with            his    counsel    during    sidebar.    Generally, this court

does     not address      issues that rely      on      facts   outside   the    record on    direct   appeal.   McFarland, 127


Wn.2d      at   335:     Because there is no evidence in the record confirming that Fitzgerald was not

present at the side bar, the record is insufficient to review Fitzgerald' s argument that the trial


court violated his right to be present.


E.         CRR 7: 8 MOTION -NEWLY DISCOVERED EVIDENCE


           Fitzgerald filed a pro se •motion for relief from judgment under CrR 7. 8, alleging that

newly discovered, evidence required the trial court to vacate his judgment and sentence and order

 a new     trial.       Under CrR 7..8( b)( 2),              a defendant may obtain relief from judgment based on

     n] ewly discovered evidence which by due diligence could not have been discovered in time to

move      for    a new     trial   under rule       7. 5."     This court reviews a trial court' s ruling on a CrR 7. 8



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motion   for an     abuse of    discretion.      State v. Martinez, 161 Wn. App. 436, 440, 253 P.3d 445,

review   denied, 172 Wn.2d 1011 ( 2011).                  A trial court abuses its discretion when it exercises its


discretion in   a manner       that is based     on unreasonable or untenable grounds.                     Martinez, 161 Wn.


App. at 440.

         There are five requirements that must be met for newly discovered evidence to warrant a

new   trial. •State   v.   Eder, 78 Wn.      App.   352, 357, 899 P. 2d 810 ( 1995), review denied, 129 Wn.2d


1013 ( 1996).     The evidence must ( 1) be such that it would probably change the result of the trial,

 2) be discovered      after   the trial, ( 3) be such that it could not have been discovered before the trial


through the    exercise of      due diligence, ( 4) be material and admissible, and ( 5) not be cumulative


and   impeaching. Eder,         78 Wn.       App.   at 357.     Absence of any of the five factors is sufficient to

deny   a new   trial. Eder, 78 Wn.          App.    at   357. "`{   D] efendants seeking postconviction relief face a

heavy. burden     and are      in   a   significantly different          situation   than   a person   facing     trial. "'   State v.


Gassman, 160 Wn.            App. 600, 609,      248 P. 3d 155 ( 2011) (          alteration    in   original) (   quoting State v.

Riofta, 166 Wn.2d 358,          369, 209 P. 3d 467 ( 2009)), review denied, 172 Wn.2d 1002 ( 2011).

         The State argues that Fitzgerald cannot meet his burden to show that the affidavits were


newly discovered evidence ( i.e., that he could not have discovered them before the trial through

the   exercise of   due diligence). We agree


         Fitzgerald relies on State v. Slanaker, 58 Wn. App. 161, 791 P. 2d 575, review denied,

 115 Wn.2d 1031 ( 1990),            to argue that the affidavits were newly discovered and that they could

not have been discovered with due diligence even though he knew of the witnesses' possible

existence.     In Slanaker, the defendant presented an alibi offense alleging that he was playing

poker with four people during the crime. The defendant' s friend testified that they were playing



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poker, but the defendant was unable to locate the two other members of the game. The two other

witnesses contacted the defendant after his conviction and submitted affidavits corroborating the

defendant'   s alibi and       explaining why the defendant              could not     locate them       earlier..   Slanaker, 58


Wn.   App.    at    162 -63.     The trial court made a specific finding that the defendant exercised due

diligence when trying to locate the witnesses and granted the defendant' s motion. Slanaker, 58

Wn.   App.   at     165.   The State did not challenge the trial court' s finding, and the reviewing court

considered     it   a   verity    on appeal.     Slanaker, 58 Wn.            App.     at   165.    The    court   held that "[    a]




previously known witness' [s] testimony can be newly discovered when that witness could not be .

located before trial        with   the    exercise of   due diligence."         Slanaker, 58 Wn.            App.     at   166.   The


court relied on the trial court' s unchallenged finding that the defendant exercised due diligence

when holding that the defendant met his burden under CrR 7. 8.

         However, because the appellate court relied on the trial court' s unchallenged finding of

fact, Slanaker does         not
                                  actually   address    the issue we       must resolve.          The holding in Slanaker is

limited to establishing that testimony can be considered " newly discovered" even if the existence

of   the witness is        known    at   the time of trial.        Slanaker does not establish a standard for what

constitutes   due diligence         sufficient   to   meet   the   requirement of      CrR 7. 8.     Here, the trial court did


not make a specific finding that Fitzgerald acted with due diligence; therefore, we must examine

the record to determine whether evidence in the record supports a finding that Fitzgerald failed to

exercise   due diligence in attempting to              contact     the   witnesses.    Although the affidavits submitted


by Fitzgerald explain why he may have had difficulty finding the witnesses, there is no evidence
 submitted that documents what efforts were made to attempt to locate them.




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          Fitzgerald alleges that Martin' s testimony could not have been discovered with due

diligence because there              was   a   no   contact order   prohibiting him from contacting Martin.      But


there was nothing prohibiting Fitzgerald' s attorney from attempting to contact Martin, or from

requesting that the trial court modify the no contact order such that Martin could be interviewed

for his testimony. There is no evidence establishing that Fitzgerald attempted to do any of these

things    or   that   they   would     have been      unsuccessful.   Therefore, Fitzgerald has failed to meet his


burden to show that Martin' s testimony could not have been discovered with the exercise of due

diligence.


          Fitzgerald also alleges that he could not have discovered Angel Yarbrough' s testimony

because she moved and changed her name, and he could not have discovered John Balcom' s


testimony because he did               not   know Balcom' s last      name.   But, Fitzgerald has not demonstrated


that he   made        any   effort   to actually locate the     witnesses.   To the extent that Fitzgerald appears to


argue that he attempted to investigate the witnesses but his lawyer refused to do so, there is no

evidence       supporting these         allegations    in the   record.   Accordingly, the record does not present

facts establishing that Fitzgerald acted with due diligence in attempting to locate the witnesses

during trial, and the trial court did not err by denying his CrR 7. 8 motion.




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        We affirm Fitzgerald' s convictions and the trial court' s order denying his CrR 7. 8

motion.




        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.




We concur:




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