                                                                                           FILED
                                                                                    COURT OF APPEALS
                                                                                         D1 YI

                                                                                  2013 APP 23 PM 12: 00

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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II



STATE OF WASHINGTON,                                             No. 39860 5 II
                                                                           - -


                             Respondent,


                                                                Consolidated with:
JOJO HAMILTON EVANS, SR.,


STATE OF WASHINGTON,                                             No. 39943 1 II
                                                                           - -


                             Respondent,
                                                           UNPUBLISHED OPINION
         V.                                                     AFTER REMAND
                                                           FROM SUPREME COURT
JARRETT LYNN REEDY,




         JOHANSON A. . Our—
                  J.
                   C      Supreme Court            granted a petition for review in State v. Evans,

163 Wn. App. 635, 260 P. d 934 (2011), remanded for our reconsideration in light of State
                       3             and

v. Emery, 174 Wn. d 741, 278 P. d 653 (2012).: affirm our earlier decision, which reversed
                2             3             We
JoJo Hamilton Evans Jr.' and Jarrett Lynn Reedy's numerous convictions because of the
                      s

cumulative effect of prosecutorial misconduct.




 Acting Chief Judge Jill Johanson is substituted as author of this opinion for retired Judge David
Armstrong. Judge Thomas Bjorgen, Judge Armstrong's successor,joins as a panel member for
this   case.
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No. 39943 1 II
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       In November 2008, Shalamar Erickson and Amber SawyerJones went to a Lakewood
                                                           -

motel to buy and smoke methamphetamine from a friend, Travis Patterson.' Evans, 163 Wn.
App.   at   638.   They    entered   Patterson's    room   and, may      or   may   not   have   smoked


methamphetamine    with Patterson     or    his other associates.    Evans, 163 Wn. App. at 638.

Apparently, Evans and Reedy were also in Patterson's motel room because an undercover officer
stationed outside claimed to see Evans leave the motel room on two occasions. Evans, 163 Wn.

App. at 639. That same officer saw Evans return to the motel room, where Reedy let him inside.

Evans, 163 Wn. App. at 639.

       Before Erickson and Sawyer Jones left the motel room, a man entered and hit Patterson
                                  -

and another man over the head with a handgun and told everyone that they were "getting

jacked."Evans, 163 Wn. App. at 639. Erickson, Sawyer-Jones, and then another man fled the
motel room, with   Reedy   and Evans       fleeing just behind   them.   Evans, 163 Wn. App. at 639.

Officers apprehended both Reedy and Evans and recovered handguns in the areas where the two
were-rrested. Evans,_ Wn. App. at 639 40.
    a               163__             -

        The State theorized that Evans and Reedy planned to "jack"Patterson and his associates.

3 Verbatim Report of Proceedings (VRP)at 345. The State argued that Reedy was in Patterson's
motel room; then, Evans came up to the room, and Reedy let him inside. The State asserted that

Evans told the people in Patterson's room that they were all being jacked, and he then hit
Patterson over the head with his pistol before fleeing; Reedy collected some of the drugs from

the motel room before he fled.




  For a complete summary of the facts, see Evans, 163 Wn. App. at 638 42.
                                                                      -
                                                     2
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         The State charged Evans with first degree burglary, first degree robbery, second degree

assault, unlawful possession of a controlled substance with intent to deliver, possession of a
stolen firearm, and unlawful firearm           possession. Evans,          163 Wn.   App.   at 640.   The State


charged Reedy with first degree burglary, first degree robbery, unlawful possession of a

controlled substance with intent to deliver, and first degree unlawful firearm possession. Evans,

163 Wn. App. at 640 41.
                    -

          During closing argument at trial, the State engaged in three types of misconduct that we

held    deprived   Evans and    Reedy of   a   fair trial.       Without objection, the State (1)misstated the

defendants' presumption of innocence by stating that the presumption of innocence "` ind of
                                                                                   k

stops   once   you start   deliberating "'; (2)used declare- truth arguments in tasking the jury with
                                                           the -

get[ing] to the truth"and deciding "what happened" in the motel room; and (3)using the fill -
   t

in- blank argument to shift the burden of proof to the defendants. Evans, 163 Wn. App. at
  the -

643, 644 45 (
         - quoting 3 VRP at 340). The jury convicted Evans of first degree robbery, second

degree assault, second -degree __
                                unlawful firearm possession, and unlawful possession of a
controlled substance; it also added sentencing enhancements to the robbery and assault

convictions. Evans, 163 Wn. App. at 642. It convicted Reedy of first degree robbery, unlawful

possession of a controlled substance, and unlawful firearm possession, and also included firearm

enhancements. Evans, 163 Wn. App. at 642. We reversed, holding that the cumulative effect of

these episodes of misconduct deprived the defendants of a fair trial. Evans, 163 Wn. App. at
647 48.
    -


          Emery too involved prosecutorial misconduct. In Emery, the State employed similar fill-
                      the truth arguments.
in- blank and declare -
  the -                    -                                 174 Wn. d
                                                                   2        at 750 51.
                                                                                   -     Although our Supreme


                                                             3
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Court held that these two arguments were improper, it determined that these improper.arguments

did not warrant a new trial because defense counsel did not object at trial, and Emery could not

show that the arguments were so prejudicial that the trial court could not have cured the

prejudicial   effect with   an   instruction.   Emery,   174 Wn. d at 764.
                                                               2             The Supreme Court stated,

Reviewing courts should focus less on whether the prosecutor's misconduct was flagrant or ill

intentioned and more on whether the resulting prejudice could have been cured." Emery, 174

Wn. d at 762.
  2


       First, the Supreme Court analyzed whether the State's fill in- blank and declare the-
                                                                   - the -              -

truth arguments were flagrant and ill intentioned 2 It concluded that declare- truth and fill in-
                                                  .                          the -             -
the blank arguments are not the type of arguments that our courts have traditionally found
    -

inflammatorylike arguments appealing to racial biases or local prejudicesso these arguments
             —                                                           —

lacked any possibility of inflammatory effect. Emery, 174 Wn. d at 763. As a result, it held that
                                                            2

the fillin- blank and declare- truth arguments used in Emery's trial were neither flagrant
         - the -             the -

nor ill intentioned.


        Second, the Supreme Court evaluated whether an.
                                                      instruction could have cured the State's

improper comments. Again, the court placed great emphasis on this analysis, and it reviewed the
                                                                                                         i
facts in Emery against those of State v. Warren, 165 Wn. d 17, 195 P. d 940 (2008),
                                                       2            3             cent.

denied, 129 S. Ct. 2007 (2009).




2 The Supreme Court noted that Emery's trial occurred before our courts issued the most recent
flurry of prosecutorial misconduct cases, State v. Anderson, 153 Wn. App. 417, 220 P. d 1273
                                                                                     3
2009),
     review denied, 170 Wn. d 1002 (2010);
                          2              State v. Venegas, 155 Wn. App. 507, 228 P. d
                                                                                  3
813, review denied, 170 Wn. d 1003 (2010).
                          2

                                                         M
                                                                                  N




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             In Warren, the State undermined the presumption of innocence by saying, Reasonable
                                                                                     "

      doubt does not mean give the defendant the benefit of the doubt, and that is clear when you read

      the definition."165 Wn. d at 24. The State also said that the "
                            2                                       entire trial has been a search for

      the truth."     Warren, 165 Wn. d
                                    2        at 25.   In Warren, however, the defense objected to these

      misstatements, and the trial court offered a curative instruction that the Emery opinion described

         imperfect.
      as "               174 Wn. d at 764. Nevertheless, our Supreme Court held that the instruction
                               2

      cured the State's improper remarks so a new trial was not warranted.

              Our Supreme Court relied on Warren in Emery, explaining, Because the very similar
                                                                       "

      misstatements in Warren were cured by an improper instruction, the misstatements here could

      have been cured     by   a   proper instruction."   Emery, 174   Wn. d at 764.
                                                                         2             It reasoned that, had

      Emery objected at trial, the trial court would have properly . explained the jury's role and
      reiterated the correct burden of      proof. An instruction would have eliminated confusion and

      cured any potential prejudice stemming from the State's improper remarks. Emery, 174 Wn. d
                                                                                             2

J—-   at 764. - - -

              In a footnote, the Supreme Court added that, even had Emery shown that the statements

      were incurable, he could not show a substantial likelihood that the statements affected the jury's

      verdict. It reasoned that the State "clearly and repeatedly stated that the State bears the burden of

      proof and quoted the law directly from the jury instructions."Emery, 174 Wn. d at 764 n.4. It
                                                                                 2           1

      also concluded that Emery could not demonstrate that the statements affected the jury's verdict

      because the State's case was "very strong, probably overwhelming" and lacked conflicting

      testimony. Emery,        174 Wn. d at 764 n.4.
                                     2           1          Lastly, the Supreme Court noted that the.jury




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instructions properly defined reasonable doubt for the jury and directed the jurors to disregard

arguments not supported by the instructions. Emery, 174 Wn. d at 765 n.4.
                                                          2           1

       Evans is similar to Emery in many ways. Like Emery, the Evans trial occurred before our

court's recent opinions involving prosecutorial misconduct. And like Emery, Evans involved the

State's use of fill in- blank and declare- truth arguments. Also, as in Emery, neither Evans
                     - the -             the -

nor Reedy objected to the improper arguments.

       But Evans and Emery are also factually very different. In addition to the fill in- blank
                                                                                       - the -

and declare -the truth misconduct that occurred in Emery, in Evans the State also improperly
                  -

advised the jury regarding the defendants' presumptive innocence. Specifically, the State argued

that the defendants' presumptive innocence "kind of stops once you start deliberating right? At

that point, you start to evaluate evidence and decide if that has been overcome or not."Evans,
163 Wn. App. at 641.     As we noted in our initial opinion, mischaracterizing the defendant's

presumptive innocence undermines the "`bedrock upon which the criminal justice system
stands. "'Evans,_
          -.   l63    Wn. App. at 643 (quoting State v. Bennett, 161 Wn. d 303 315, 165 P. d
                                                                       2                 3

1241 (2007)).

       Emery tells us to "focus less on whether the prosecutor's misconduct was flagrant or ill

intentioned and more on whether the resulting prejudice could have been cured."Emery, 174

Wn. d at 762.
  2               In Evans, we held that the State offered improper statements during closing

arguments, developing themes that diluted the State's role in satisfying the burden of proof,

erroneously invited jurors to disregard weaknesses in the State's case, and improperly shifted the
State's burden of   proof. Evans,    163 Wn. App. at 643 44, 645, 646.
                                                         -                     We analyzed this

misconduct, evaluating the potential effect of a curative instruction, and even after considering

                                                rel
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    the potential efficacy of an instruction, we held that the improper arguments resulted in a

    prejudice that could not have been remedied by a curative instruction. Evans, 1.3 Wn. App. at
                                                                                   6
    648.


           In Emery, the Supreme Court cited Warren, and recited two improper remarks that the

    trial court cured with an instruction. Evans involved more than just two improper statements—

    here the State's closing argument repeatedly made improper comments involving three separate

i   misconduct themes relating to the jury's responsibility and role in trial proceedings, as well as.

    the State's burden of   proof. Emery directs us to focus our analysis on whether the State's

    misconduct and    resulting prejudice   could have been cured.   In our initial Evans opinion, we

    analyzed the curability of any resulting prejudice, and we held that a curative instruction could

    not "overcome the prosecutor's multipronged and persistent attack on the presumption of

    innocence, the State's burden of proof, and the jury's role."163 Wn. App. at 648. Our opinion

    does not change, even in light of Emery: Given the severity of the misconduct during closing

    argument, and its focus on minimizing the State's task in satisfying its burden of proof, and the

    jury's role in evaluating the evidence presented at trial,we maintain that the trial court could not
    have cured the misconduct through instruction.

           Moreover, in distinguishing Emery from Evans to determine the potential for prejudice,




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we note that unlike Emery, with its overwhelming evidence favoring the State, Evans involved

numerous conflicting factual issues, exacerbating the potential for prejudicial effect on the jury.

Partly due to this conflicting evidence, we held that the State's improper statements would be so

prejudicial as to not be curable by an instruction. In sum, the State's improper arguments were

so prejudicial that a curative instruction would not have remedied the misconduct. Therefore,
even   in   light   of   Emery, we affirm          our   earlier Evans decision. The cumulative error from the


numerous instances of misconduct warrants a new trial.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0


                                                                                                  4C
                                                                                                   -
                                                                                Johanson, A. .
                                                                                             J.
We concur:




                         Van 15= /
                             1.4


                                jorgen, J.




3
    The victim, Patterson, refused to testify, offering no explanation whether anything had been
taken from          him,   or   how he       was   injured. Evans,   163 Wn.   App.   at   647.   No eyewitnesses
identified the defendants in court; and, Erickson admitted smoking methamphetamine and being
high on the day of the incident, compromising her credibility..Evans, 163 Wn. App. at 647.
Moreover, conflicting testimony creates additional questions regarding how many men were in
the motel room; who in the motel owned methamphetamine, and who participated in robbing the
methamphetamine's owner. Evans, 163 Wn. App. at 647.
                                                                8
