                                                                                                                    I= D
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                                                                                                                        I~
                                                                                                          COO T OF
                                                                                                                        APPEALS
                                                                                                                DIVISIDP TI
                                                                                                        2013    P   24 AM 9: 24
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN
                                                                                                                    AS        TON
                                                  DIVISION II
                                                                                                                Dt UI`
                                                                                                                     1
STATE OF WASHINGTON,                                                        No. 42761 3 II
                                                                                      - -


                                      Respondent,

        V.




DANIAL R.HALVERSON,                                                 PART PUBLISHED OPINION




                  J. Danial R. Halverson appeals his convictions for two counts of
        JOHANSON, A. .
                   C   —


unlawful firearm possession, as well as attempted first degree murder and first degree assault,

including    firearm enhancements, after he shot his           neighbor multiple   times. After two trials,


juries found Halverson guilty on all counts. Halverson appeals the two firearm convictions from

the first trial and the attempted murder and first degree assault convictions from the second trial

in this appeal. In the published portion of our opinion, we address Halverson's claim that the

trial court violated his article I, section 22 public trial rights, as well as the public's article I,

section 10 open trial rights when it questioned a deliberating juror in-
                                                                       chambers. Applying the

experience prong of the " experience and logic"test, we hold that the public trial right does not

attach to the preliminary, individual questioning of a deliberating juror about alleged misconduct

and, accordingly, there was no violation of either Halverson's or the public's open and public

trial rights.

        In the unpublished portion of the opinion, we address Halverson's claims of an

inadequate      record for   an   effective   appeal, prosecutorial misconduct, trial   court   error   in   ordering
No. 42761-
    11-  3




Halverson to undergo mental health counseling or treatment as a community custody provision,

and trial court error for finding that he had a present or future ability to pay legal financial

obligations (LFOs). We also address Halverson's statement of additional grounds (SAG) in

which he claims ineffective assistance, prosecutorial misconduct, incomplete voir dire

transcripts,   and courtroom deficiencies.       We affirm Halverson's convictions because, of the

issues   preserved   for   appeal, he   demonstrates no reversible   error.   But we strike Halverson's


mental health community custody condition and remand for correction of the judgment and

sentence.

                                                  I144V


         In   September 2010, Halverson       visited Michael Okoniewski's rural home.      They spoke

briefly and, as Okoniewski walked toward his shed to retrieve something for Halverson, he was

shot multiple times. Okoniewski fell and rolled over to see Halverson standing near him with a

gun in his hand; Okoniewski asked Halverson why he shot him, but Halverson walked away.

Okoniewski managed to get to a neighbor's house for help. Before the aid unit arrived, he told

his neighbors that Halverson had shot him.

         Okoniewski survived the three         gunshot   wounds.     While investigating the shooting,

authorities learned that Halverson, a felon, had illegally possessed a firearm on at least one

occasion other than the day of the shooting. The State charged Halverson with attempted first

degree murder, first degree assault, including firearm enhancements, and two counts of second

degree    unlawful firearm     possession. After two trials, juries found Halverson guilty of all

charges.
No. 42761 3 II
          - -




         During the second trial, and after the jury discontinued its deliberations for the afternoon,

the presiding juror alerted the bailiff that juror number 11 had looked up words in a dictionary.

The trial court questioned juror number 11 in chambers, off the record, with the prosecutor and

defense counsel present. Trial counsel agreed to discuss the matter in greater detail the following

morning.


         On the record the next morning with Halverson and trial counsel present, the trial court

recounted the    prior   afternoon's events.   Juror number 11 and the presiding juror stated that

although juror number 11 looked up words in an online dictionary, he had not shared his findings

with others. The trial court declined to declare a mistrial and instead dismissed juror number 11

and replaced him with an alternate. The trial court ordered the jury to begin deliberations anew

with the alternate.


                                               ANALYSIS


                                         PUBLIC TRIAL RIGHTS


         Halverson.argues that the trial court violated his and the public's open and public trial

rights when it questioned a sitting juror in chambers without first performing a Bone Club
                                                                                      -

analysis on the record. Applying the experience prong of the experience and logic test, we hold

that Halverson's public trial right does not attach to the preliminary, individual questioning of a

deliberating juror suspected of misconduct because such inquiry has not historically been open to

the press and    general public. Accordingly, no Bone Club analysis is required before asking
                                                      -




1
    State v. Bone Club, 128 Wn. d 254, 906 P. d 325 (1995).
                  -           2             2


                                                    3
No. 42761 3 II
          - -



preliminary questions of a deliberating juror in chambers about whether the juror committed

misconduct during deliberations. And, absent a violation of Halverson's public trial rights under

article I, section 22, Halverson cannot demonstrate an article I, section 10 violation of the

public's open trial rights that warrants his retrial.

                                            A. Standard of Review


        We review violations of the public trial right de novo. State v. Sublett, 176 Wn. d 58, 70,
                                                                                        2

292 P. d 715 ( 2012). The federal and state constitutions protect the
     3                                                                               public   trial   right.   U. .
                                                                                                                S


CONST. amend. VI; WASH. CONST. art. I, §§ 22.
                                        10,                     The Washington Constitution, article I,

section 10 affords the public and press the right to open and accessible court proceedings, while

article I,section 22 guarantees a defendant the right to a public trial by an impartial jury. The

public trial right is designed to ensure a fair trial, to remind the officers of the court of the
importance of their functions, to encourage witnesses to come forward, and to discourage

perjury. State v. Strode, 167 Wn. d 222, 226, 217 P. d 310 (2009).
                                2                  3

        Generally, before a trial court can close any part of a trial from the public, it must first

apply, on the record, the five part Bone Club analysis. State v. Bone Club, 128 Wn. d 254, 258-
                               -         -                            -           2

59, 906 P. d 325 ( 1995). To
         2                              determine whether a proceeding must be open to the press and

public, we apply the "experience and logic test."Sublett, 176 Wn. d at 72 73. Under this test,
                                                                2         -
the   experience   prong ...    asks `whether the place and process have historically been open to the

press and   general public, "' while "[ ] logic prong asks ` whether public access plays a
                                      the

significant positive role      in the   functioning of the particular process   in   question. "' Sublett, 176

Wn. d at 73 (quoting Press -Enter. Co. v. Riverside County Superior Court, 478 U. . 1, 8, 106 S.
  2                                                                             S

Ct. 2735, 921. Ed. 2d 1 ( 1986).If the answer to both prongs is yes,the public trial right attaches,


                                                        FAI
No. 42761 3 II
          - -



and the trial court must conduct a Bone Club analysis on the record before closing the
                                        -

proceedings. Sublett, 176 Wn. d at 73. The appellant bears the burden of establishing a public
                            2

trial   right   violation. Sublett, 176 Wn. d at 75.
                                          2                   And when an appellant seeks a new trial to

remedy an alleged violation of the public's article I,section 10 rights to open proceedings—

without also demonstrating an article I, section 22 violation of the defendant's public trial

rights the alleged error does not warrant a retrial. State v. Beskurt, 176 Wn. d 441, 446, 293
       —                                                                     2

P. d 1159 (2013).
 3

                                                B. Analysis

          Halverson argues that questioning an impaneled juror during deliberations on suspicion

of misconduct is analogous to questioning a juror for potential biases during pretrial voir dire.
The State disagrees and distinguishes between juror voir dire and questioning deliberating jurors

during trial. We agree with the State.

          To demonstrate accepted historical practices in Washington, the State cites State v.

Wilson, 141 Wn. App. 597, 171 P. d 501 (2007),
                               3             which involved the in-
                                                                  camera questioning of

an   impaneled juror. In Wilson, an impaneled juror alerted the trial judge's assistant that she

recognized       one   of the State's witnesses in   a   theft   case.   141 Wn.   App. at   601. The assistant




2
 Regarding the experience test, Halverson cites cases unlike the present matter. He cites State v.
Sadler, 147 Wn. App. 97, 118, 193 P. d 1108 (2008),
                                          3                review denied, 176 Wn. d 1032 (2013)
                                                                                    2
holding that public trial right exists in context of Batson hearing because it "nvolves factual and
                                                                               i
credibility determinations and is relevant to the fairness and integrity of the judicial process as a
whole. "). But in Sublett, our       Supreme   Court      expressly rejected   our   reasoning in Sadler. 176
Wn. d at 72 (rejecting Sadler, We decline to draw the line with legal and ministerial issues on
   2                            "
one side, and the resolution of disputed facts and other adversarial proceedings on the other. ").
Halverson also relies on cases that involve jury voir dire proceedings, which have historically
been open to the press and general public. State v. Paumier, 176 Wn. d 29, 34, 288 P. d 1126
                                                                       2                3
2012); State v. Wise, 176 Wn. d 1, 8, 15, 288 P. d 1113 (2012).
                              2                  3

                                                          E
No. 42761 3 II
          - -




informed the judge, who. held an in-
                                   chambers conference to question the juror with the

prosecutor and defense counsel present, but not the defendant. Wilson, 141 Wn. App. at 601 02.
                                                                                           -

The trial court learned that one of the victims had employed the juror, and defense counsel

moved to dismiss the        juror   because she could taint the   jury during deliberations. Wilson, 141

Wn. App. at 602. The trial judge did not dismiss the juror for cause, and the jury convicted the

defendant.      Wilson,   141 Wn. App. at 602 03. Division Three of this court held that this in-
                                              -


camera meeting without the defendant present was a "short interlude" at trial that did not violate

the defendant's    rights    to be   present.     Wilson, 141 Wn. App. at 605 ( citing United States v.

Gagnon, 470 U. .522, 527, 105 S. Ct. 1482, 84 L.Ed. 2d 486 (1985)).
             S

        Federal courts show a similar historical acceptance and practice of in-
                                                                              camera questioning

of impaneled jurors. See, e. . United States v. Edwards, 823 F.d 111, 117 (5th Cir. 1987),
                           g                                  2                          cent.

denied, 485 U. . 934 (1988). ("
             S            Experience and logic do indeed provide the reasons why midtrial

proceedings involving the questioning of jurors have traditionally been closed to the public:

holding such proceedings in open court would itself introduce an element of bias and would

substantially   raise the risk of    destroying   the effectiveness of the   jury. ").Given this documented

practice in Washington and elsewhere, in-
                                        camera questioning of impaneled jurors has not

traditionally   been open to the press and         general public. Thus, Halverson's argument fails the

experience prong of the experience and logic test, and we need not address the logic prong.

        In conclusion, experience tells us that the place and process of preliminary, individual

questioning of impaneled jurors for misconduct has not historically been open to the public, and

the trial court did not error by conducting this proceeding in chambers. Therefore, Halverson did

not demonstrate reversible error relating to a violation of his article I, section 22 public trial


                                                         C
No. 42761 3 II
          - -



rights. And because Halverson sought a new trial to remedy an alleged violation of the public's

article 1, section 10 rights to open proceedings, without also demonstrating an article I,section

22   violation, any alleged   error   regarding   the   public's rights, does   not warrant   a   retrial. See


Beskurt, 176 Wn. d at 446.
               2

        We affirm Halverson's convictions.

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

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

record in accordance with RCW 2.6.it is so ordered.
                              040,
                               0

                                      ADDITIONAL FACTS: FIRST TRIAL


         Before the first trial, the jail alerted the trial court that Halverson might have mental

health issues raising doubt about his competency to assist counsel at trial. The trial court ordered

a mental health evaluation and sent Halverson to Western State Hospital. Months later, the trial

court found that treatment had restored Halverson's competency and held his first trial.

         At trial, the jury heard testimony from Halverson's acquaintances, John Allen Sr. and

John Allen Jr.,
              that, in August 2010, Halverson possessed and then gave John Allen Sr. a

shotgun. And Halverson conceded that he possessed and gave Allen the shotgun. The jury also

heard Okoniewski's testimony that, after Halverson shot him, Okoniewski saw Halverson

holding a gun. The jury deadlocked on the attempted first degree murder and first degree assault

charges and found Halverson guilty on the two second degree unlawful firearm possession

charges.




3 Even if we assume, without deciding, that Halverson had standing to raise a claim on the
public's behalf, his argument fails.

                                                         7
No. 42761 3 II
          - -



          The trial court later announced that the courtroom's recording equipment had

malfunctioned and had not recorded the last part of the first trial's        proceedings. The parties

entered an agreed report of proceedings:

                  The parties agree that the Court properly admitted defense exhibits before
          the defense rested its case; the proposed jury instructions are properly filed in the
          court file and the instructions given by the Court are also properly filed within the
          Court file,there were no exceptions to the Court's instructions; closing argument
          cannot] be re-  created, the defense cannot stipulate that there was no error by
          either defense attorney or prosecutor; jury deliberations were proper for the first
          trial, any questions sent to the Court by the jury are properly filed in the Court
          file; and the verdicts were properly recorded with [the] Court after appropriate
          inquiry as to the possibility of reaching a verdict in accordance with the WPIC or
          instruction on being unable to reach a verdict.

Clerk's Papers (CP)at 22.

                                              II. SECOND TRIAL


          The State retried Halverson on the attempted first degree murder and first degree assault

charges. Okoniewski recounted          how Halverson      came   to his home and shot him. Okoniewski



described seeing Halverson, whom he had known for many years, with a gun just moments after
the    shooting   and   asking   Halverson   why   he shot him; but, Halverson did not   respond.   Other


witnesses, including neighbors and medical workers, also testified that Okoniewski told them the

same details about the shooting.

          At closing arguments, Halverson argued that while there is "no doubt Mr. Okoniewski
was shot,".
         Halverson was not the shooter. 5B Verbatim Report of Proceedings (VRP)at 953.

During rebuttal closing, the prosecutor responded, But the bottom line is this. Do you have
                                                   "

enough to have a reasonable doubt that someone other than Danial Halverson shot Mr.


4"
      refers to the first trial record and "
     A"                                    B"refers to the second trial record.
No. 42761 3 II
          - -



Okoniewski." 6B VRP at 1016.           Halverson   unsuccessfully objected   to   this argument.   The


prosecutor then continued without objection, So to acquit Danial Halverson then, you have to
                                             "

have   a   reasonable doubt that Mr. Halverson     was   the person who shot Okoniewski.       And I


challenge youI challenge you to find a reason for that doubt."6B VRP at 1017.
             —

           The jury found Halverson guilty of both attempted first degree murder and first degree

assault, including the firearm enhancements. At sentencing, the trial court ordered Halverson to

pay $46, 24. in
     834               LFOs. The court indicated on the judgment and sentence that it had

considered the total amount Halverson owed, as well as his present and future ability to pay,

including his financial resources and likelihood his status would change. The trial court found

that Halverson had the ability or likely future ability to pay the imposed LFOs.

           Finally, after,the State referenced Halverson's prior mental health treatment, the trial

court, without objection, ordered Halverson to participate in mental health counseling or

treatment at his community corrections officer's direction. Halverson appeals.

                    MISSING TRANSCRIPT FROM FIRST TRIAL'S CLOSING ARGUMENT


           Halverson claims that he was deprived of his constitutional right to appeal and to present

an effective appeal from his two firearms convictions because he lacked a verbatim record of

closing arguments from the first trial. Without specificity, he suggests that because he alleged

prosecutorial misconduct at the second trial, the prosecutor likely committed misconduct at the




5
A$
 500 victim assessment; $ 572. in court costs ($ 00 filing fee, 853. 2 witness costs,
                        52
                        5,                     2                $ 0
50 sheriff service fees, $ 00 jury demand fee); $ 862 for court-
4,
 019.                    5                       24,               appointed attorney
remainder reserved);15, 90. for court-
                    31
                    $ 2              appointed defense expert and other defense costs;
100 crime lab fee; and a $ 00 DNA collection fee.
                         1

                                                   C
No. 42761 3 II
          - -



first trial such that his firearms convictions should be reversed. Because Halverson cannot


demonstrate prejudice arising from the missing transcripts, his argument fails.
                                        A. Standard of Review


        A criminal defendant is constitutionally entitled to a record of sufficient completeness to

permit effective appellate review of his claims. State v. Tilton, 149 Wn. d 775, 781, 72 P. d 735
                                                                        2                 3

2003). A record of sufficient completeness, however, does not automatically translate into a

complete verbatim transcript. Tilton, 149 Wn. d at 781. In the absence of a complete record, the
                                            2

appellant must prepare either a narrative report of proceedings under RAP 9. or an agreed report
                                                                           3

of   proceedings   under RAP 9. , and file that with the trial court.
                              4                                            Tilton, 149 Wn. d at 782.
                                                                                         2

Objections and proposed amendments to either the narrative report or a verbatim report are filed
with the trial court, and the trial   judge settles   any   disputes. Tilton, 149 Wn. d at 782. When
                                                                                    2

reviewing whether the record is sufficient to allow review,we consider the following factors:

         1) whether all or only part of the trial record is missing or reconstructed; 2)
                                                                                      ( the
         importance of the missing portion to review the issues raised on appeal; 3)  ( the
         adequacy of the reconstructed record to permit appellate review; and (4)the
         degree of resultant prejudice from the missing or reconstructed record, if any, to
         the defendant.


State v. Classen, 143 Wn. App. 45, 57, 176 P. d 582, review denied, 164 Wn. d 1016 (2008).
                                            3                             2

         The absence of a portion of the record is not reversible unless the defendant can

demonstrate prejudice. State v. Burton, 165 Wn. App. 866, 883, 269 P. d 337, review denied,
                                                                    3

174 Wn. d 1002 (2012).Where the nature of the error is one that trial counsel probably would
      2

have remembered, such as prosecutorial misconduct during closing argument, even the entire

loss of the pertinent record may not prevent effective review. Burton, 165 Wn. App. at 883 84.
                                                                                           -




                                                      Cul
No. 42761 3 II
          - -



                                            B. Analysis

        Halverson supports his argument with two cases, State v. Larson, 62 Wn. d 64, 381 P. d
                                                                              2            2

120 (1963), Tilton. Both cases are distinguishable from the facts here. In Larson, the court
          and

reporter's trial notes were lost, so a verbatim statement of facts could not be provided to

appellate   counsel.   62 Wn. d at 65.
                            2             Appellate counsel claimed that he could not represent

Larson on appeal without the verbatim record of the trial proceedings. Larson, 62 Wn. d at 65.
                                                                                    2

Our Supreme Court held that, since appellate counsel did not represent Larson at trial, he could

not satisfactorily determine what errors to assign on appeal; accordingly, without a verbatim

record of trial proceedings, the Supreme Court reversed Larson's conviction and remanded for

retrial. Larson, 62 Wn. d at 67.
                      2

        In Tilton, a technical error resulted in a 36-
                                                     minute gap in the recorded proceedings. 149

Wn. d at 779.
  2                The gap included all of Tilton's direct examination and most of his cross-

examination. Tilton, 149 Wn. d at 779. Tilton was convicted, and the trial court discovered the
                           2

gap   just before sentencing. Tilton,   149 Wn. d at 780.
                                              2                    After sentencing the State moved to

reconstruct the missing record, and the trial court asked that the State, defense counsel, and

presiding court commissioner submit affidavits of their recollections of the lost testimony.
Tilton, 149 Wn. d at 780. Tilton's defense counsel's affidavit said that he had no recollection of
              2

Tilton's testimony, nor did he have any notes regarding it. Tilton, 149 Wn. d at 780.
                                                                          2

         Our Supreme Court held that the reconstructed record was insufficiently complete to

allow. Tilton to raise the claims he     sought   to pursue   on    appeal. Tilton, 149 Wn. d at 783.
                                                                                          2

Tilton's trial attorney had kept no notes and did not recall Tilton's testimony, and appellant

counsel was not present at trial and was unable to judge the reconstructed record's completeness,


                                                   11
No.42761 3 II
         - -




determine appealable issues, or support appealable issues that depended on Tilton's testimony.

Tilton, 149 Wn. d at 783. The missing record was critical to Tilton's appeal because appellate
              2

counsel could not establish an ineffective assistance of counsel claim based on trial counsel's

failure to raise certain defenses, particularly when significant evidence suggested those defenses

were available. Tilton, 149 Wn. d at 783. Consequently, our Supreme Court vacated Tilton's
                              2

conviction and remanded the matter for retrial. Tilton, 149 Wn. d at 787.
                                                              2

       The present matter is unlike Larson and Tilton. Though these cases, like Halverson's,

each involve different trial and appellate counsel, here, Halverson complains of only missing

closing arguments, not evidentiary portions of the trial. Unlike Larson and Tilton, here counsel's

arguments are not evidence, thus there was no gap in the evidence; also, the trial court instructed

the jury that counsel's arguments were not evidence, and we presume that the jury followed
those instructions.   And unlike Tilton, Halverson identifies no prejudice resulting from the

missing transcript; he merely suggests the possibility of prosecutorial misconduct during closing

argument and rebuttal in the trial that resulted in his conviction on two unlawful firearm

possession charges.     We do not presume error, and even had the prosecutor committed

misconduct, the trial court could have cured the misconduct with a remedial instruction.

       And in light of the overwhelming evidence that supports his two unlawful firearm

possession convictions, we find no prejudice. At the first trial, the existing record shows that
John Allen Sr. and John Allen Jr. testified that in August 2010, Halverson possessed and then

gave John Allen Sr. a shotgun. And Halverson conceded that he possessed and gave Allen the

shotgun.    The jury also heard Okoniewski's testimony that, after Halverson shot him,

Okoniewski   saw   Halverson   holding   a   handgun. Absent resulting prejudice, we hold that the



                                                    12
No. 42761 3 II
          - -



absence of the first' rial' closing argument transcript does not warrant a new trial. See Burton,
               s    t

165 Wn. App. at 883.

                                    PROSECUTORIAL MISCONDUCT


            Halverson next argues that the prosecutor committed misconduct in the second trial by

misrepresenting the reasonable doubt standard and improperly shifting the burden to Halverson.

Of the two alleged misstatements, one statement properly responded to Halverson's closing
                                                                                    .

argument, and Halverson cannot show that the other statement, though improper, prejudiced him.
                                       A. Standard of Review


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

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

prejudicial. State v. Thorgerson, 172 Wn. d 438, 442, 258 P. d 43 (2011).To show prejudice, a
                                        2                  3
defendant must show a substantial likelihood that the misconduct affected the jury verdict.

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

preserve the issue unless he establishes that the misconduct was so flagrant and ill intentioned
that   an   instruction would not have cured the   prejudice. Thorgerson,   172 Wn. d at 443. We
                                                                                  2


consider the prosecutor's alleged improper conduct in the context of the total argument, the
issues in the case, the evidence addressed in the argument, and the instructions given to the jury.

State v. Anderson, 153 Wn. App. 417, 430, 220 P. d 1273 (2009),
                                               3              review denied, 170 Wn. d
                                                                                   2

1002 (2010). And the prosecutor's remarks, even if improper, are not grounds for reversal if

they were invited or provoked by defense counsel and are in reply to her or his acts and

statements. State v. Russell, 125 Wn. d 24, 86, 882 P. d 747 (1994),
                                    2                2             cert. denied, 514 U. . 1129
                                                                                      S




                                                   13
No. 42761 3 II
          - -




1995). The prosecutor, as an advocate, is entitled to fairly respond to the defense counsel's

arguments. Russell, 125 Wn. d at 87.
                          2

       On review we focus less on whether the prosecutor's misconduct was flagrant and ill

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

174 Wn. d 741, 762, 278 P. d 653 (2012).We decide whether there is a substantial likelihood
      2                  3

that the misconduct affected the jury's verdict. State v. Dhaliwal, 150 Wn. d 559, 578, 79 P. d
                                                                          2                 3

432 (2003).

                                         B. Analysis

       Here, during rebuttal closing, the prosecutor argued: "Do you have enough to have a

reasonable doubt that someone other than Danial Halverson shot Mr. Okoniewski."6B VRP at

1016. Halverson unsuccessfully objected. The prosecutor continued without' objection, So to
                                                                                      "

acquit Danial Halverson then, you have to have a reasonable doubt that Mr. Halverson was the

person who shot Okoniewski. And I challenge youI challenge you to find a reason for that
                                               —
doubt."6B VRP at 1017.


       The first argument that Halverson challenges on appeal responds to the defense argument

that, though Okoniewski had obviously been shot just moments after Halverson admitted being
at Okoniewski's   house, someone other than Halverson fired the shots. 5B VRP at 953, 956.

Because the prosecutor may fairly respond to arguments invited or provoked by the defense, here

the prosecutor was entitled to question Halverson's theory by arguing that no evidence supported
the defense's theory that someone else shot Okoniewski. Therefore, this first misconduct claim
fails. See Russell, 12.5 Wn. d at 86.
                           2




                                               14
No. 42761 3 II
          - -



          But the second argument that Halverson challenges is similar to the fill in- blank
                                                                                    - the -

arguments that improperly shift the burden to the defendant. See Emery, 174 Wn. d at 759; see
                                                                              2

also State v. Johnson, 158 Wn. App. 677, 682, 243 P. d 936 (2010),
                                                   3             review denied, 171 Wn. d
                                                                                      2

1013 (2011) To be able to find reason to doubt, you have to fill in the blank, that's your job. "),
            ("

State v. Venegas, 155 Wn. App. 507, 523, 228 P. d 813, review denied, 170 Wn. d 1003 (2010)
                                              3                             2

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

is   guilty, and   my   reason   is'— Anderson,
                                   blank. "),             153 Wn. App. at 431 ( "[ n order to find the
                                                                                I]

defendant not guilty, you have to say `I don't believe the defendant is guilty because,' and then

you have to fill in the blank. ").

          Here the prosecutor argued, without objection, that if the jury was to acquit Halverson it

would need to find a reasonable doubt, and it needed " find a reason for that doubt."6B VRP
                                                     to

at 1017. Finding a reason for a doubt is akin to filling in the blank; in Venegas, for example, the

prosecutor argued that for the jury not to find the defendant guilty, it must find a reason to doubt:

Y] u have to say to yourselves: `I doubt the defendant is guilty, and my reason is'—
 o                                                                                blank."

155 Wn. App. at 523. Both examples subvert the presumption of innocence by implying that the

jury had an initial affirmative duty to convict, and that the defendant bore the burden of

providing a reason for the jury not to convict. See Johnson, 158 Wn. App. at 684.

          Because Halverson did not object to the prosecutor's second argument, he fails to

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

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

show that in the context of the record and all the trial circumstances, the prosecutor's conduct

was    improper    and   prejudicial. Thorgerson,   172 Wn. d at 442.
                                                          2              When like here, a prosecutor



                                                     15
No. 42761 3 II
          - -




makes a single improper remark regarding the jury's role and the burden of proof without

objection, the appellant fails to demonstrate that a remedial instruction would not have cured the

improper    remark.   See Emery, 174 Wn. d at 764 (holding that improper fill in- blank and
                                       2                                       - the -

truth"arguments were not incurable or prejudicial). This is particularly true when, again like

here, the evidence supporting the conviction      was   strong.    We hold that Halverson fails to


demonstrate prejudice.

                         MENTAL HEALTH COMMUNITY CUSTODY PROVISION


          Halverson correctly argues, and the State concedes, that the trial court erred in ordering

Halverson to submit to mental health counseling or treatment as part of his community custody.
RCW 9. provides that a sentencing court may impose a mental health counseling or
    080
     94B.

treatment provision as a term of an offender's community custody sentence "if the court finds

that reasonable grounds exist to believe that the offender is a mentally ill person as defined in

RCW 71. 4.and that this condition is likely to have influenced.the offense."
    025,
      2

          Here the trial court ordered that Halverson " hall participate in mental health counseling
                                                      s

or   treatment at the direction of the CCO." CP at 18.        But the trial court here did not enter a


finding    that Halverson suffers from mental illness    or   that mental illness contributed to his

offenses.     Accordingly, the trial court improperly sentenced Halverson to mental health

counseling or treatment. See RCW 9.
                                 080.We accept the State's concession and we remand
                                   94B.

to correct the judgment and sentence by striking this condition.




                                                  16-
No. 42761 3 II
          - -



                                          LEGAL FINANCIAL OBLIGATIONS


       Next Halverson argues, for the first time on appeal, that the trial court erred in finding

that he had   a   current   or   future   ability   to pay his LFOs.        Following our recent case, State v.

Blazina, 174 Wn. App. 906, 301 P. d 492 (2013),
                                3             petition for review filed,No. 89028 5 ( ash.
                                                                                  - W

July 8,2013), decline to reach the merits of this issue Halverson did not object in the
            we

trial court to the trial court's      finding       of his   ability   to pay.   Because like Blazina, Halverson

challenges, for the first time on appeal, the trial court's finding of his present or future ability to

pay,we decline to consider this issue.

                                                         SAG


       In his SAG, Halverson raises various claims on issues relating to ineffective assistance of

counsel, prosecutorial misconduct, an incomplete record, and physical trial courtroom

deficiencies. Halverson fails to demonstrate reversible error:

                                            A. Ineffective Assistance


        Halverson raises various ineffective assistance claims. None warrants reversal.

                                               1. Standard of review


        To demonstrate ineffective assistance of counsel, a defendant must show that his lawyer's

representation was deficient and the deficient performance prejudiced the defendant. Strickland

v. Washington, 466 U. . 668, 687, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984).Representation is
                    S

deficient if it falls below an objective standard of reasonableness based on consideration of all

the circumstances.          State v. McFarland, 127 Wn. d 322, 334 35, 899 P. d 1251 ( 1995).
                                                      2            -        2

Prejudice occurs when but for counsel's deficient performance, the result of the proceeding

would have been different. McFarland, 127 Wn. d at 335.
                                            2                                     If a party fails to satisfy either



                                                              17
No. 42761 3 II
          - -



prong, we need not consider both prongs. State v. Foster, 140 Wn. App. 266, 273, 166 P. d 726,
                                                                                      3

review denied, 162 Wn. d 1007 (2007).
                     2

       We are highly deferential to counsel's performance, that is,the defendant must overcome

the presumption that, under the circumstances, the challenged action might be considered sound

trial strategy. Strickland, 466 U. . at 689. Tactical decisions cannot form the basis for a claim
                                 S

of deficient performance. McFarland, 127 Wn. d at 336. Tactical decisions include selecting
                                           2

witnesses, conducting cross -examination, selecting jurors, making trial motions, and introducing

evidence, among others. State v. Grier, 171 Wn. d 17, 31, 246 P. d 1260 (2011).
                                              2                3

                                            2. Analysis

       First, Halverson claims that he suffered from ineffective assistance of counsel because, in

addition to his primary trial counsel, public defender Jim Foley represented him at his first
pretrial hearing; and pretrial, his case was before two commissioners and two superior court

judges.     Halverson does not   explain   how this   prejudiced   him.   Even assuming deficient

performance of some kind, absent a showing of prejudice, Halverson cannot demonstrate

ineffective assistance. See Foster, 140 Wn.App. at 273.

          Second, Halverson claims that his counsel told the ' trial court that counsel was not

smart" enough to handle the case and needed the appointment of another counsel, Richard

Woodrow, who later withdrew before the first trial. Halverson mischaracterizes the record.

Initially, defense counsel believed that Halverson may seek a mental competency defense, so he

sought Woodrow's help. When Halverson opted for a more standard defense, defense counsel
no   longer needed Woodrow's assistance,        so    Woodrow withdrew.       Halverson   does   not




                                                 18
No. 42761 3 II
          - -



demonstrate deficient performance or error; accordingly, he does not show ineffective assistance.

See Strickland, 466 U. .at 687.
                     S

       Third, Halverson raises a series of claims relating to defense counsel's decision not to

call certain witnesses including a California gunpowder expert, officers who participated in

Halverson's arrest, and a woman interested in purchasing property near Halverson's.
                                                                                  Even if we

accept Halverson's.
                  summary of these witnesses' potential testimonies, their testimony would

have repeated or overlapped that of other witnesses who testified. Determining which witnesses

to call is a tactical matter, and here, does not constitute deficient performance. See McFarland,

127 Wn. d at 336.
      2


       Fourth, Halverson raises numerous claims relating to defense counsel's presentation of

evidence and his decision to elicit certain     testimony   from witnesses.   Specifically, Halverson

challenges defense counsel's decision to present different cases at the first and second trials, not

offer all of Okoniewski's excited utterances after being shot, and not elicit evidence stressing the

severity of Halverson's wife's illness. Again, the introduction of evidence is a tactical decision

and cannot form the basis of a claim of deficient performance. See McFarland, 127 Wn. d at
                                                                                    2

336.   Moreover, we generally entrust witness examination techniques to the professional

discretion of defense counsel because "counsel may be concerned about opening the door to

damaging rebuttal or because cross[ -examination may not provide evidence useful to the
                                      ]

defense."In re Pers. Restraint ofBrown, 143 Wn. d 431, 451, 21 P. d 687 (2001).
                                              2                 3

       Fifth, Halverson claims that defense counsel told him that defense counsel "had to kind

of go easy in   pointing   out   incompetence & bias of law enforcement & prosecution" because he




                                                   19
No. 42761 3 II
          - -



has to work with them every        day.    SAG at 1.      This challenge involves material outside the

record, so we are unable to address this issue on direct appeal. McFarland, 127 Wn. d at 335.
                                                                                  2

                                              B. Misconduct


       Halverson next claims that the State committed misconduct on five separate occasions.

None of these claims warrants reversal.


       First he claims that the State lied to get evidence suppressed when it claimed that

authorities found methamphetamine -smoking paraphernalia among Halverson's possessions.

The State did argue to the trial court that authorities found methamphetamine paraphernalia, but

Halverson does not demonstrate that the State lied or even misrepresented the truth.

Accordingly, this claim fails.

       Second, Halverson claims that the State lied when it argued that Halverson's neighbors

heard Halverson make derogatory remarks about Okoniewski. But neighbor Bobbie Paquette

testified that Halverson said of Okoniewski, D] n' ask Mike for anything, he's a piece of
                                             t
                                             "[ o

shit." 2B VRP at 266.            Because the State's argument is consistent with the evidence,

Halverson's claim fails.


       Third, Halverson claims that the State improperly implied that his wife was seen walking

a puppy at 6:0 a. . on the morning of the shooting, but that in reality, she walked the dog hours
            0 m
after authorities set up surveillance       on   Halverson's house.    Halverson does not attempt to

demonstrate how the State implied this idea, or how, if true, this implication prejudiced him.

Accordingly, we decline    to   attempt   to frame   Halverson's argument for him   and it fails.
No. 42761 3 II
          - -



       Fourth, Halverson claims that because the State requested more time to rebut Halverson's

opening brief on the day its brief was due, the State could not have submitted its response brief

before the deadline.     The State, however, received an extension to file its response, so

Halverson's claim lacks merit.


       Fifth,Halverson claims that the State used an incorrect map at trial. Halverson, however,

never objected to its use at trial, and an objection would have resulted in curing any alleged map

defect. Therefore Halverson failed to preserve this issue for appeal. RAP 2. .
                                                                           5

                                       C. Missing Record

       Halverson next claims that we failed to provide him copies of voir dire proceedings from

both trials. But RAP 9. (
                     b)
                      2 provides that, a]
                                       "[ verbatim report of proceedings provided at public

expense will   not include the voir dire examination ...   unless so ordered by the trial court."

Moreover, Halverson does not attempt to explain how lacking voir dire transcripts prejudiced

him. Thus, he cannot demonstrate reversible error.

                                   D. Courtroom Deficiencies


       Finally, Halverson claims that courtroom deficiencies prejudiced him because they

distracted the jury and necessitate a new trial. Halverson also makes a blanket statement that the

courtroom was unfit for technology and technology was used ineffectively and unwisely at trial.

Halverson, however, never challenged the use or placement of this equipment at trial; had he

objected, the trial court and parties could have cured any problem. Because Halverson failed to

object, he did not preserve this issue for appeal. RAP 2. . Had Halverson preserved the issue,
                                                        5

he still does not demonstrate resulting prejudice.




                                                21
No. 42761 3 II
          - -



       We affirm Halverson's convictions, but we strike Halverson's mental health community

custody condition and remand for correction of the judgment and sentence.



                                                            Johanson, A. .
                                                                      J.
                                                                       C

I concur:



                     V

            Fear g,J.




                                              22
No. 42761 3 II
          - -



             BRINTNALL,
        QUINN-               J. concurring in
                                (               part) —     I concur with the majority opinion's

conclusion that the public trial right does not attach to the preliminary, individual questioning of

a deliberating juror about alleged misconduct, and its analysis concerning the adequacy of the

record for an effective appeal, prosecutorial misconduct, and ordering mental health counseling.

I also concur with the majority opinion's treatment of the issues Danial Halverson raises in his

statement of additional grounds. However, for the reasons stated in State v. Lundy,No. 42886 5-
                                                                                             -

II, 2013 WL 4104978 ( Wash. Ct. App.,Aug. 13, 2013),on the issue of legal financial

obligations, I concur only in the result.



                                                          O L.      _   1




                                                23
