                                                                                                          FILED
                                                                                               COURT OF APPEALS
                                                                                                        OIVISION II

                                                                                              2015 FEB 10 AM 8: 57
      IN THE COURT OF APPEALS OF THE STATE OF WASH
                                                                                                   TA
                                              DIVISION II                                     BY


    STATE OF WASHINGTON,                                                        No. 45195 -6 -II


                                     Respondent,


          v.



    EARL DEMITRUIS BURNS,                                             UNPUBLISHED OPINION


                                     Appellant.


         SUTTON, J. — Earl   Demitruis Burns appeals his jury trial conviction for assault in the second

degree. He argues that the trial court erred in denying his for -cause challenge to one of the jurors

and that the State engaged in prosecutorial misconduct in closing argument by shifting the burden

to the defense, arguing facts not in evidence, denigrating a witness, and expressing personal

opinion about a witness' s     credibility.   In   a pro se   Statement   of   Additional Grounds' ( SAG), he


argues that his trial counsel provided ineffective assistance by failing to use a peremptory challenge

to excuse the juror that the trial court refused to dismiss for cause and that the trial court was

biased. We affirm.


                                                     FACTS


                                              I. THE ASSAULT


         Burns intermittently lived with Latonia Antoinette Sharpley during their 11 -year dating

relationship.     Sharpley   and   Burns had two daughters together.           During the later portion of this




1
    RAP 10. 10.
No. 45195 -6 -II




relationship, Burns      was also     seeing Megan Rose. Burns and Rose had a son together; their child


was five months old in June 2012.


        At about 8: 00 AM on the morning of June 29, 2012, Sharpley was texting someone while

in bed with Burns. Suspecting that Sharpley was communicating with another man, Burns grabbed

her phone and shut himself in the bathroom. When he emerged from the bathroom, Burns asked


Sharpley, who was holding Burns' son, if she had been communicating with her former boyfriend.

When    she   told him    she   had   not   been, he told her he        would "   beat [ her] *   ss"   if   she was   lying.   1


Verbatim Report     of    Proceedings ( VRP)        at   35.    Burns then compared information on Sharpley' s

phone with the contact information in his own phone and discovered that she had been


communicating with her former boyfriend.

        Burns then climbed onto the bed, took his son from Sharpley' s arms and put him to one

side, and struck Sharpley several times in the face. After Burns stopped hitting Sharpley, he then

demanded that she go downstairs and put ice on her face. While downstairs, Sharpley climbed out

of a   bathroom    window       and    sought
                                                help     from   a    lawn   maintenance     crew        working nearby.         A


neighbor called    911.    Burns left Sharpley' s house before the police arrived.

         Sharpley   was    transported to the hospital.             Sharpley' s eyes were swollen shut, she suffered

a hemorrhage in the back of her right eye, and one of her teeth had been knocked out. She gave a


written statement at the hospital, and the police took photographs of her injuries. A police detective


later contacted Sharpley and interviewed her.




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No. 45195 -6 -II



                                                        II. PROCEDURE


          The State charged Burns with assault in the second degree and alleged that this was a


domestic violence incident.2 Burns presented an alibi defense, claiming to have been with Megan

Rose at the time of the assault.


                                                  A. Voir Dire of Juror 22


          During the voir dire of the prospective jurors, the parties questioned " Juror 22" at length

about his ability to remain fair and impartial in light ofhis personal experiences and his relationship

with law enforcement officers.


                                             1.    Law enforcement officers


          The State first   questioned       Juror 22      about    his   connections   to law   enforcement.      Juror 22


stated that he knew two law enforcement officers, that one of his neighbors was a retired Tacoma


Police Department detective, and that he had occasionally talked to these officers about their cases.

When the State asked Juror 22 if there was anything about his relationships with these officers that

led him to think he    could not      be fair     and   impartial in this   case,   Juror 22   responded, "   Well, I' m not


really   sure."   VRP ( Voir Dire)      at   43.    The State then told Juror 22 that he was not being asked to

ignore his life experiences but that the trial court and counsel needed to know if he could decide


the case based on the evidence presented without allowing his experiences to impact his decision.

Juror 22 responded that he could decide the case based on the evidence.




2
    RCW 9A.36. 021( 1)(     a);   RCW 10. 99. 020( 5)( b).




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No. 45195 -6 -II



         Defense counsel later asked all of the jurors whether they thought that law enforcement or

medical professionals, "          have more built in credibility than civilian witnesses" or the defendant.

VRP ( Voir Dire)         at   93. Juror 22 responded:


                    The way I feel, I have known             a   lot   of officers.   Sometimes you can believe
         them;     sometimes you can'           t.   Okay. If they have to take down all the facts for the
         case,     so   they have to do         research on      it to   put   somebody in jail —and   nurses or

         doctors, they go by what the wounds are by a person. So the credibility on them is
         good.

                        DEFENSE COUNSEL]:                    More so than my client or any other civilian
         witness?

                    JUROR 22:              Correct.
                        DEFENSE COUNSEL]:                    And that' s by virtue of their job?
                    JUROR 22:              Right.


VRP ( Voir Dire) at 94.


                                                     2. Personal experiences


          The parties also questioned Juror 22 at length about the effect of his personal experiences


on   his ability to     remain    fair   and   impartial.   First, when the State asked the jurors whether they or

someone close them had personal experience with domestic violence, Juror 22 responded that he

had been robbed and struck in the face when he was working at a convenience store and that his

former wife had been raped in the same store. The perpetrators of these crimes were strangers.

          When the State asked Juror 22 if those experiences would make it hard for him to " sit .. .

and   listen ...   to this case,"        Juror 22 responded that it would depend on what kind of case this was


and what type of abuse was at issue. VRP ( Voir Dire) at 50. The State told him it was an assault


case, and Juror 22 responded that he had also been physically assaulted. The State asked Juror 22

if he thought this would impact his ability to be fair and impartial if seated on the jury. Juror 22




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No. 45195 -6 -II



responded, "   I   could   try to be impartial." VRP ( Voir Dire) at 51. Juror 22 also stated that he " would

try" to decide the case based solely on the evidence. VRP ( Voir Dire) at 51.

       After the State finished questioning other jurors, defense counsel questioned Juror 22:

        DEFENSE COUNSEL:]                     Juror No. 22, I believe that in         response   to [ the
       State' s] questions about whether or not you thought you could be fair and impartial,
       your response was you could try to be impartial; is that right?
                    JUROR 22:         Yes.
                    DEFENSE COUNSEL]:                  How about fair?
                    JUROR 22:         I could be as fair as I can.
                    DEFENSE COUNSEL]:                  I don' t know what that means.
                    JUROR 22:         Well, I could be fair.
                    DEFENSE COUNSEL]:                  Well, it' s okay.   Tell me what you meant by
       that.
                    JUROR 22:         You know, I could be as fair as I could.
                     DEFENSE COUNSEL]:                 Fair as you could given the nature of the
       allegations in this case?
                    JUROR 22:         Correct.
                     DEFENSE COUNSEL]:                 So if it wasn' t a [ domestic violence] case or a
        domestic violence] allegation or an assault allegation, you believe you could be—
       more likely to be fair?
                    JUROR 22:         Correct.
                     DEFENSE COUNSEL]:                 Is that fair to say?
                    JUROR 22:         Correct.
                     DEFENSE COUNSEL]:                 And this is where it gets difficult, and this is
       for everybody          who   is sitting here:
                                                I am going to try and ask you to predict the
       future as to what your brain is going to do, should you be on this jury. And that' s
       really not easy, but it' s the only thing I can do at this point. So having said that, it
       is an assault case. There are going to be pictures.
               JUROR 22:         Okay.
                     DEFENSE COUNSEL]:                 Is that going to       make   it difficult, if not
        impossible, for you to be both fair and impartial?
                    JUROR 22:         I have seen some pretty gruesome pictures.
                     DEFENSE COUNSEL]:               Okay. But you weren' t necessarily sitting on
        a jury in that case?
                    JUROR 22:         No.
                     DEFENSE COUNSEL]:     In this case, you are going to be sitting on a
       jury ultimately making a decision about whether or not the State has proved this
        case against Mr. Burns.
                    JUROR 22:         You are making it difficult on me.
                     DEFENSE COUNSEL]:             I' m not trying to. I' m really not trying to.



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No. 45195 -6 -II



                     JUROR 22:            When       you put   in   perspective another person and      his —for his
           freedom or not; it' s really hard for me to say. I am looking at fairness to him. Okay.
           Like I say, I have seen some really gruesome pictures of people being hurt.
                         DEFENSE COUNSEL]:                     But you weren' t on their jury?
                     JUROR 22:            No.
                         DEFENSE COUNSEL]:                     And I understand that all of us as human
           beings try      as   hard   as we can.       And, again, the difficulty is both for Mr. Burns,
           myself, and [     the State], is    trying   to figure out —not will you try because we believe
           thatyou will try —is can you. -And that' s just a gut thing that only you can probably

           answer. You want to think about it, and I will come back to you.


VRP ( Voir Dire) at 62 -64.


           Defense       counsel   then   questioned        other    jurors.   One of these jurors discussed how her


experiences involved her relatives but noted that this case was not about people to whom she was

related.     The juror was, however, already becoming upset by the situation, and she ultimately

concluded         that   she could not    be fair     and would          probably " shut down" when the evidence was


presented even           though the     case   did   not   involve    family   members.    VRP ( Voir Dire)     at   65.   The


parties agreed to dismiss this juror for cause.


           Defense counsel then returned to Juror 22. Juror 22 noted the other juror' s responses and

recognized        that the   person who        had   assaulted      him ( Juror 22)   was a stranger.    But he also stated


that he did not know the defendant and was not sure he could say whether he could be impartial

towards the defendant.                 Defense counsel stated that she would come back to Juror 22 and


proceeded to question the other jurors.


           The next day, when defense counsel called on Juror 22 again, Juror 22 stated:

                   For me to logically say I can give you a positive answer on his outcome, T
           cannot. And I knew you were going to get back to me. I thought about this all last
           night, and I want to be fair to this gentleman here. And I really can' t be.

VRP ( Voir Dire) at 121.




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No. 45195 -6 -II




Defense counsel moved to excuse Juror 22 for cause. VRP (Voir Dire) at 121.


                The State then asked some follow -up questions:

                   THE STATE]:                Why do you think that you can' t be fair?
                JUROR 22:         I have —you      know, I have been robbed by gunpoint and
       knife. I    am more afraid of a        knife. But when you get hit in the face, I have had
       broken ribs, you start thinking, you know, I have seen these people. And if I came
       up against them in court, I would have to say, hey, it was an abuse, you know. I
       can' t —I don' t know you. You might be a fantastic guy, and I hope the Lord is on

       your side. Okay. But I can' t say I am going to be able to really give a good outcome
       for him.
                   THE STATE]:                We   are not   looking     for   a specific outcome.    We are
       not   looking   for   a good outcome.       What   we are   asking      you   to   do— obviously, your
       experience dealt with strangers. This case will not be about strangers. This will be
       about   two   people    that    know   each other.     Obviously, the defendant has had no
       interaction with you. You don' t know him.
                JUROR 22:          Correct. No.
                   THE STATE]:                So you can separate out the fact that you had these
       past experiences that have nothing to do with the defendant?
                JUROR 22:          Correct.
                   THE STATE]:                So the   question    is:   Given that you have had those
        experiences, not related to the defendant, if we seat you on this panel, could you
        decide the case based on the evidence you heard and the testimony you heard?
                JUROR 22:         I possibly could, yes.
                 THE STATE]:              That' s what we are asking, if you could do that
        knowing   it' s not related  to your other experiences. Could you put those aside and

        decide this case solely based on what you heard through testimony and exhibits in
        this courtroom?
                JUROR 22:          If it' s two different people, yeah.
                   THE STATE]:                It' s people that you don' t know?
                JUROR 22:             Correct.
                   THE STATE]:                It' s people that have had no interaction with you?
                JUROR 22:             Correct.
                   THE STATE]:                Certainly people that have not assaulted you or
        robbed you, right?

                JUROR 22:             Correct. You haven' t robbed me, did you?
                   THE STATE]:                So that' s what we are talking about. Can you do that?
                JUROR 22:             Yeah.
No. 45195 -6 -II



VRP ( Voir Dire)         at   121 -23.   Following this questioning, the State objected to Burns' request to

excuse Juror 22 for cause.


          Defense counsel then asked Juror 22 whether it was his gut reaction that he could not be


on the jury and be fair and impartial. Juror 22 responded:

                      Well, I want to be impartial. I want to be a juror that can be impartial, okay.
          I don' t know if I can separate myself from what happened to me or what he did or
          is accused of doing. Sorry.

VRP (Voir Dire) at 123. Defense counsel then asked the juror if he knew he could not be impartial

or   just did   not   think he    could   be impartial. The juror        responded, "   I don' t know if I     can."     VRP


 Voir Dire) at 124. Defense counsel renewed the motion to excuse for cause.

                                                                                                                     3
          The trial    court    denied the   motion   to   excuse     Juror 22. Juror 22   served on   the   jury.

                                                  B. Trial Testimony

          At trial, the State presented testimony from Sharpley; the officer who responded to the 911

call;   the detective     who     took    a statement      from   Sharpley;   and medical personnel.          Burns' only

witness was his alibi witness, Rose.


          Sharpley testified about the assault as described above. In addition, she testified that at one

point Burns had kicked her in the back and that Burns' cousin was sleeping on the couch in the

living room at the time of the assault; details that were not present in her previous statements to

the   police.    She also testified that she had not mentioned to the police that she had been holding

Burns' son immediately prior to the assault. Sharpley explained, however, that her testimony was




3 Burns did not exercise all of his peremptory strikes.


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No. 45195 -6 -II



more detailed than the written statement she gave at the hospital because she had been in pain and

could not see well when she wrote              the   statement, so she " just       [ wrote] the basics."   1 VRP at 46.


       Tacoma police officer Wayne J. Beals testified that when he contacted Sharpley on the

morning of the assault, she told him that Burns had become angry with her after looking at her

phone and    had   punched   her four times in the face            with a closed       fist. She also told Beals that she


had fled the house and that Burns had left the house in his pickup truck. Beals did not, however,

recall Sharpley telling him that Burns had taken her phone into the bathroom to examine it or that

Burns had told her that he         was     going to beat her.        Tacoma police department detective Eric D.


Kothstein interviewed       Sharpley       a   few days    after   the   assault.     He testified that she described the


assault consistent with the facts set out above but she did not mention the child being present,

Burns having kicked her, or someone else being in the house during the assault.

        Rose testified that Burns was currently her boyfriend and that they were living together.

When defense counsel asked her how long she had been in a relationship with Burns, Rose
                                                          4
responded, "
               Officially   for    about   ten   months. "     2 VRP       at   42.   Defense counsel then asked Rose


how   long   she   and   Burns had been together " unofficially ";5                   she responded that they had been

together about three      years.    She also admitted that she had been seeing Burns while he was still

involved with Sharpley.

        Rose testified that at the time of the assault, she was living with Burns' mother and that

Burns was primarily staying with Sharpley, although he would -occasionally stay with her ( Rose).




4 The trial took place in late June 2013.

52 VRP at42.


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No. 45195 -6 -II



2 VRP at 44. Rose asserted that Burns was staying with Sharpley because it was the only way he

could see     his daughters "      without    any drama." 2 VRP at 44.


          When defense counsel asked Rose if she recalled anything about June 29, the date of the

assault, Rose testified that between 11: 00 AM and 1: 00 PM, Sharpley arrived at his mother' s house

and   told Rose that he had         caught     Sharpley      cheating   on   him   and   that he   needed   to get away.   She


stated   that he     spent   the   night with       her.   Rose testified that they awoke about 8: 00 AM the next

morning. 6     2 VRP at 45.

          Defense counsel then asked Rose to clarify whether she was talking about the night of June

28 to June 29, or June 29 to June 30. Rose clarified that she was talking about June 28 to June 29.

When defense counsel asked Rose why she remembered the specific night, Rose responded,

    Because based off the information that I know of the situation is that this situation apparently

occurred     early morning         on   the 29th,   so   it had to have been the 28th to the 29th." 2 VRP at 45. On


cross -examination, Rose admitted that she had determined that Burns was with her on the night of

June 28 to June 29 based on information that Burns had given her around the time he was charged.

She admitted that she had not told the police or the prosecutor' s office about Burns having been

with her at the time of the assault.


            Additionally, although Rose initially testified that Burns had told her that his cousin had

dropped Burns off at his mother' s apartment, she later admitted that she had told a defense

investigator that Burns had              arrived at   her house in his truck. 2 VRP          at    46, 57. She later testified,




6
    Burns   states   in his brief that Rose testified that Burns told her that
                                                                          Sharpley was "` blowing his
phone up with text messages' and calling him about something." Br. of Appellant at 9 ( quoting 2

VRP at 45). But the trial court struck this portion of Rose' s testimony following the State' s hearsay
objection, so we do not consider it.



                                                                 10
No. 45195 -6 -II



however, that       she   did   not see    Burns     arrive, so she     did   not see   his truck. 2 VRP   at   58.   She also


testified that she did not pick up her son until June 29, after she heard that " there may be an issue."

2VRPat46.


                                                     C. Closing Argument

                                                1.    State' s closing argument

           In closing argument, the prosecutor emphasized that, this case came down to whether the

jury believed Sharpley or Rose. The prosecutor reminded the jury that it had been instructed that

it   was   the   sole   judge   of   credibility.    But he also told the jury that when evaluating credibility, it

could look to the reasonableness of the testimony, whether the witness was biased, and whether

the   witness' s    story   was " reasonable given        the   context."      2 VRP at 85.


           The prosecutor then asked the jurors to closely examine Sharpley' s and Rose' s testimonies.

He commented on Sharpley' s testimony, her essentially consistent statement to the detective, and

the fact     she was      visibly     upset while     testifying   about      the   assault.   He then contrasted this with


Rose' s testimony and asserted that Rose' s testimony was internally inconsistent on several points.

For instance, the prosecutor argued that Rose' s claim that Burns and Sharpley were not dating and

that Burns was just staying with Sharpley so he could see his daughters was inconsistent with

Rose' s testimony that he had reacted badly when he found out that Sharpley was involved with

another man. The prosecutor also noted that Rose' s story became " confused" when she testified

about when Burns was with her, that Rose had concluded that Burns was at her house the night


before the incident solely because that was when Burns had told her the assault had occurred, that

it would not have made sense for Rose to leave her child with Sharpley ifthere had been a problem,




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No. 45195 -6 -II




and that Rose' s testimony about how Burns arrived at his mother' s residence was not consistent.

2VRPat88.


        The prosecutor then argued that Rose was biased and had a reason to provide alibi


testimony for Burns:

                  Now, let' s look at another thing you have to look at is [ bias] or motive.
        Does    a witness    have   a   bias   or motive      to   give   the story   they   are     giving? Well, let' s
        talk about Ms. Rose' s relationship with the defendant. What you heard is that the
        relationship is, quote, unofficial in her own words for a period of two years. That
        includes up to the point ofthis incident. At the time of this incident, they are having
        a, quote, unofficial relationship, but Ms. Rose knows about Ms. Sharpley. And at
        the time, the defendant is spending time at both houses, back and forth, as you
        heard. But their relationship is unofficial.
                  Incident    comes out,        the      defendant is     charged, now       it' s   official.   Now they
        have an official relationship, her words, her testimony. The relationship status has
        changed        because of this    case.          It has   now    become   official.    He is down to a one
        woman man.



2 VRP   at   91 - 92 ( emphasis   added).      Burns objected, asserting that this argument did not reflect the

testimony. The trial court overruled the objection. The prosecutor then argued that because Burns

and Rose were now living together, Rose did not want to see him get in trouble and she was biased.

2VRPat92.


        The prosecutor further argued:


                  As you look at the stories that you have been presented and the evidence
        that you have been presented, the evidence supports Mrs. Sharpley' s version of
        events. And as you are evaluating the evidence, what I want you to ask yourself is
        this: How did this happen?               This is      not an accident.        You heard her describe her
        pain    level   as a nine out of       ten    or an eight out of       ten.   Ten being the worst she has
   1
        ever    felt in her life.   She didn' t hit herself. She didn' t beat herself until her eye
        closed shut and       then knocked           a   tooth    out.   The   photos are    there.     And there is no
        other explanation for-


2 VRP   at   93 -94.    Burns interrupted with an objection, arguing that this argument was shifting the

burden. Burns      elaborated, "    I have      no obligation        to   prove   how this happened. [ The State] has to




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No. 45195 -6 -II




prove.       And I think     by   going down this line, [ the     State] is now somehow shifting the burden of

proof   to   me."    2 VRP at 94. The trial court sustained the objections and directed the prosecutor to


rephrase his argument.


         The prosecutor responded:


                     Remember the burden is            always on [   the State].   But what these [ injuries]
         show support         Ms.    Sharpley'   s   testimony. These got here because the defendant
         punched       her   numerous    times in the face.       It' s the only way they get there is from
         repeated punches          to the face.
                                        The evidence from the CT scan, the damage to her
         eye, gets there from the punches. That' s how this happens.

2 VRP    at    94.   The prosecutor then briefly argued that the jury should convict Burns of assault in

the second degree, rather than the lesser charge of assault in the fourth degree. After the prosecutor


finished, the trial court also reminded the jury that the State had the burden of proving each element

of the offense beyond a reasonable doubt and that Burns had no burden to establish a reasonable

doubt.


                                            2. Defense closing argument

         At the start of Burns' closing argument, defense counsel reiterated that the State had the

burden of overcoming the presumption of innocence and that Burns had the right to not testify and

the jury could not infer guilt from the exercise of this right. Defense counsel then argued that the

State had not presented evidence sufficient to prove each element of the crime beyond a reasonable


doubt. Defense counsel emphasized that Sharpley was injured and that she was the only one saying

Burns had injured her. Defense counsel then argued that Sharpley' s testimony was not consistent

and that she had testified about many details that she had not mentioned in any previous statement.

Counsel further argued that it was not the defense' s burden to prove anything and that the State

had not proved that Burns assaulted Sharpley.



                                                             13
No. 45195 -6 -II



         Defense counsel also discussed Rose' s credibility as an alibi witness, mentioning that she

was   Burns'      girlfriend    and    that   it   was    now " official."     2 VRP       at   101.   Defense counsel then


commented that it was not unusual for an alibi witness to have a relationship with the defendant

and   that this    did   not   necessarily         mean   that   they    were not credible witnesses.       Counsel further


argued that the State was asking the jury to speculate that Rose and Burns' relationship became

 official" as a result of this case and that there was no evidence supporting that assertion or any

evidence      explaining why      or   how the relationship became "               official."   2 VRP at 104.


         Defense counsel continued:


                              Sharpley get injured? By whom? By what? Again, I don' t
                    How did Ms.
         know. And I don' t have to tell you how, I don' t have to give you some theory about
         it, I don' t have to posit any evidence saying maybe this is how it happened, maybe
         this is how it happened.      Again, I know it' s beating a horse here, but I have no
         burden. Mr. Burns has no burden. This is not a game of Clue. It is not your job to
         try and figure out what exactly happened, and if he didn' t do it, who did.
                 Your sole responsibility under the law is to decide whether or not the State
         has met its burden of proof beyond a reasonable doubt for each and every element
         ofthis crime charged. Meaning, have they proven to you beyond a reasonable
         doubt that on June 29th of 2012, Mr. Burns assaulted Ms. Sharpley and that' s how
         her injuries were caused.


2 VRP    at   104- 05.    Defense counsel ended her argument by reiterating that the State had not met

its burden. After defense counsel finished, the trial court once again advised the jury that the State

had the burden of proof.


                                                          3.   State' s rebuttal


         In rebuttal, the prosecutor again argued that the case came down to whether the jury found

Sharpley or Rose more credible. The prosecutor reiterated that the State had the burden to prove

the crime beyond a reasonable doubt, and argued that it had met its burden because Sharpley' s

statements were consistent over time and she had explained why her trial testimony was more



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No. 45195 -6 -II




detailed that her          prior   statements.     The prosecutor again mentioned that Rose and Burns'


relationship status changed from unofficial to official soon after Burn' s was charged, that Rose' s

relationship with Burns had " advanced" as a result of the charges, and that this gave Rose reason

to   want   to   protect   Burns. 2 VRP    at    111.   Burns did not object to this argument.


            Finally, the prosecutor argued,

                    The simple fact is that Ms. Sharpley was injured. And this level of [in]jury
            is           two. It is a substantial bodily harm that she suffered. She didn' t hit
                 an assault

            herself. These injuries did happen. They support her testimony. If you believe
            Ms. Sharpley and the consistent version of events she has given you along with the
            other physical evidence,      then I have      met   my burden.   That is all that is necessary
            for you to have proof beyond a reasonable doubt.


2 VRP at 116 -17. Burns did not object to this argument.


            The jury found Burns guilty as charged. Burns appeals.

                                                         ANALYSIS


                                        I. DENIAL OF FOR CAUSE CHALLENGE


            Burns first argues that the trial court violated his right to a fair trial before an impartial jury

when it denied the defense motion to strike Juror 22 for cause. Even assuming, but not deciding,

that Burns has properly preserved this argument, it fails.

            Because the trial court is able to observe the juror' s demeanor and to evaluate the juror' s

answers, "[       t] he trial judge is best situated to determine a juror' s competency to serve impartially."



7 The State contends that under State v. Clark, 143 Wn.2d 731, 762, 24 P. 3d 1006, cert. denied,
534 U. S. 1000 ( 2001), Burns did not preserve this argument because he failed to use all of his

peremptory strikes. Burns contends that State v. Fire, 145 Wn.2d 152, 158, 34 P. 3d 1218 ( 2001),
establishes that he was not required to exercise all of his peremptory strikes in order to bring this
challenge.          Because we choose to resolve this issue on the merits, we do not address the
preservation issue.




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No. 45195 -6 -II



State   v.   Rupe, 108 Wn.2d 734, 749, 743 P. 2d 210 ( 1987),                 cert.   denied, 486 U. S. 1061 ( 1988).


Thus, we review for abuse of discretion a trial court' s denial of a for -cause juror challenge. Rupe,

108 Wn.2d 748.


             The trial court should grant a challenge for cause only when the challenged juror exhibits

a probability of actual bias$ such that the juror holds opinions or beliefs that the juror cannot put

aside   for the     purpose of      impartially deciding   the   merits of   the   case.    State v. Noltie, 116 Wn.2d


831, 839 -40, 809 P. 2d 190. ( 1991).           The trial court should not have disqualified a juror merely

because the juror has           opinions   that may affect the determination           of   the issues.   Instead, "[ t] he


question      is   whether a   juror   with preconceived   ideas   can set   them   aside."   Rupe, 108 Wn.2d at 749.


Equivocal answers alone do not require that a juror be removed when challenged for cause. Rupe,

108 Wn.2d at 749.


             Juror 22' s comments about whether his relationships with law enforcement would affect


his ability to be fair and impartial was, at times, equivocal. But he also stated that he knew several

law enforcement officers and understood that they were not always credible. And Juror 22 agreed

that he could decide the case based on the evidence despite his relationships with several law

enforcement officers.           Given this, we cannot say that trial court abused its discretion in allowing

Juror 22 to remain on the jury despite his relationship with law enforcement officers.




8 Actual bias is " the existence of a state of mind on the part of the juror in reference to the action,
or to either party, which satisfies the court that the challenged person cannot try the issue
                                    prejudice to the                            of    the party challenging."       RCW
impartially         and   without                      substantial     rights

4. 44. 170( 2).      The burden of showing actual bias rests on the party challenging the juror for cause.
State v. Wilson, 141 Wn. App. 597, 606, 171 P. 3d 501 ( 2007).




                                                             16
No. 45195 -6 -II



          Similarly, Juror 22 was often equivocal about whether his prior personal experiences would

affect   his ability to be fair        and    impartial. As noted above, however, equivocal answers alone do


not require     that   a   juror be   removed when challenged             for   cause.   Rupe, 108 Wn.2d   at   749. Here,


Juror 22' s final discussion with the State in which he stated that he could " separate out "9 the crimes

that had been committed against him and his family from those involving the defendant and that

he could decide the case based on the evidence presented if the defendant was not the person


involved in the prior acts against him and his family, was sufficient to allow the trial court to
                                                                 10
conclude      that Juror 22     was not       actually biased.        Accordingly, we hold that the trial court did not

abuse its discretion when it denied the defense motion to excuse Juror 22 for cause.

                                                  II. PROSECUTORIAL MISCONDUCT


          Burns next argues that the prosecutor committed prejudicial prosecutorial misconduct


during    closing      argument       by (   1)    shifting the burden to the defense, and ( 2) arguing facts not in

evidence. We disagree.


                                                      A. Standard of Review


          To prevail on his claim of prosecutorial misconduct, Burns must establish that the


prosecutor' s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278

P .3d 653 ( 2012). If Burns can establish that the conduct was improper, we review the conduct for




9 VRP (Voir Dire) at 122.

1°
     Burns'   reliance on      State    v.   Gonzales, 111 Wn.      App. 276, 45 P. 3d 205 ( 2002), review denied,
148 Wn.2d 1012 ( 2003), is                 not persuasive.     The juror in Gonzales expressly stated that she was
unsure that she would be able to respect the presumption of innocence if a police officer testified.
Gonzales, 111 Wn.             App.Here, in contrast, Juror 22 never expressly stated that he was
                                      at   279.
unsure he could apply the required presumptions in light of police testimony.



                                                                  17
No. 45195 -6 -I1



prejudice under one of       two different      standards.     Emery,      174 Wn.2d      at   760.      When a defendant


timely objects to the alleged instances of misconduct, the defendant must show that the

prosecutor' s misconduct       had   a substantial   likelihood      of   affecting the   jury' s      verdict.   Emery, 174

Wn.2d   at    760. When a defendant fails to object to alleged misconduct, the defendant waives the


error unless he can show that the misconduct was so flagrant and ill-intentioned that no instruction

could cure     the   prejudice and   that the   prejudice   had   a "`   substantial likelihood of affecting the jury

verdict. "'   Emery, 174 Wn.2d at 761 ( quoting State v. Thorgerson, 172 Wn .2d 438, 455, 258 P. 3d

43 ( 2011)).     We review alleged improper statements in the context of the entire argument, the


issues in the case, and evidence presented at trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d

432 ( 2003).     Burns    objected   to the first instance     of alleged misconduct,           but    not   the second.   But


even if Burns had objected to both instances, this argument fails.


                                                 B. Burden Shifting

         Burns argues that the prosecutor engaged in misconduct when he argued in closing that

someone       had to have   caused    Sharpley' s   injuries   and   that there   was "`   no other explanation for "'


the injuries other than Burns having assaulted her. Br. of Appellant at 24 ( quoting 2 VRP at 94).

He contends that the prosecutor made this argument twice, once in his initial closing argument and

again at the end of his rebuttal argument. Burns objected to the first argument, but not the second.

Even if Burns had objected to both arguments, his argument fails.

                                                                                                    11
         After the     prosecutor argued    that there   was " no    other   explanation       for "     Sharpley' s injuries,

Burns   objected.       The trial court sustained the objection and told the prosecutor to rephrase his




112 VRP at94.



                                                             18
No. 45195 -6 -II



argument. When the prosecutor rephrased his argument, he reiterated that the burden of proof was

on   the State.   Additionally, at end of the prosecutor' s argument, the trial court reminded the jury

that the State had the burden of proving each element beyond a reasonable doubt and that Burns

had no burden to establish a reasonable doubt existed. Furthermore, defense counsel' s argument


repeatedly reminded the jury that the State had the burden of proof and that Burns had no duty to

present evidence. And the jury instructions also instructed the jury that the lawyers' remarks and

arguments were not the law and that the law was contained in the instructions, which said that the


State had the burden of proof and the defendant did not have to prove that a reasonable doubt

existed.



         Although the prosecutor' s arguments could have suggested that Burns had failed to present


an alternative explanation for Sharpley' s injuries and, thus, suggested that Burns had some burden

to produce evidence, the trial court' s repeated oral instructions to the jury, both parties' repeated

statements during their closing arguments, and the written instructions clearly instructed the jury

of the proper burden of proof. Because of these repeated admonitions and instructions and given


the brief nature of the prosecutor' s possibly improper closing arguments, Burns has not shown this

potential error had a substantial likelihood of affecting the jury' s verdict and his argument fails.

Emery, 174 Wn.2d at 760.

                                       C. Arguing Facts Not in Evidence

           Burns further    argues   that the   prosecutor (   1)   misrepresented Rose' s testimony when he

suggested that he had asked Rose about whether she was giving Burns an alibi, and ( 2) suggested

that the   reason   Rose   and   Burns' relationship had become '        official '   was to get Rose to testify on




                                                         19
No. 45195 -6 -II




Burns' behalf. Br.         of   Appellant   at   29 ( quoting 2 VRP    at   92). Burns argues that this argument was


not based on the evidence. We disagree.


         Comments that "`           encourage [ the jury] to render a verdict on facts not in evidence are

improper. "' State         v.   Stith, 71 Wn.    App.    14, 18, 856 P. 2d 415 ( 1993) (       quoting State v. Stover, 67

Wn.     App.   228, 231, 834 P. 2d 671 ( 1992),              review   denied, 120 Wn.2d 1025 ( 1993)).                But the


prosecutor has wide latitude in closing arguments to draw reasonable inferences from the facts in

evidence and to express such inferences to the jury. Dhaliwal, 150 Wn.2d at 577. Such is the case

here.


         On cross -examination, the prosecutor asked Rose if it was her testimony that Burns was

with    her   at   the time of the     crime.      Although the       prosecutor      did   not use   the   word " alibi,"   his


argument that he had asked Rose if she was providing Burns with an alibi is a reasonable

characterization of what happened during Rose' s cross -examination. Thus, the prosecutor was not

arguing facts not in evidence when he made this statement.

          Similarly, the prosecutor' s argument suggesting that the change in Rose and Burns'

relationship gave Rose a reason to provide an alibi was a reasonable inference from the evidence.

The timing of the change in their relationship coincided with the charges against Burns, Rose

testified that       she    and    Burns had talked         about    the   charges,    and Rose never contacted law


enforcement or        the   prosecutor' s office        to tell them that Burns had         an alibi.   It was a reasonable


inference that the change in relationship status, which apparently benefitted Rose, was the reason

she was now providing an alibi. Thus, the prosecutor was not arguing facts not in evidence when

he made this argument.




                                                                20
No. 45195 -6 -II




                                                   D. Denigrating a Witness

             Burns also appears to argue that the prosecutor engaged in misconduct when he

 denigrate[ d] Rose'         s version of [the] events,        calling it   a ` story.       "'   Br. of Appellant at 28 ( quoting

2 VRP        at   85).   But the prosecutor referred to both the State' s and Burns' theories of the case as


 stor[   ies],"     and,   taken in    context,    the   prosecutor' s use of       the term "           story" was not intended to

denigrate Rose' s testimony. See 2 Verbatim Report                    of    Proceedings            at   85 ( emphasis added) ( stating


     y] ou should look at the reasonableness of [the] statements that people make, you should look at

whether they have a bias in what they are saying, you should look at [ whether] the story they are

giving you is reasonable given the context" when describing generally how to evaluate credibility);

at    86 (   emphasis       added) (   referring to       Sharpley' s testimony              as    the " story of events of what


occurred "); and at          93 (   emphasis added) (       stating, " As you look at the stories that you have been


presented and the evidence that you have been presented, the evidence supports Mrs. Sharpley' s

version of events,"          when     discussing Sharpley' s testimony). Accordingly, this argument fails.

                                                         E. Personal Opinion


             Burns further      argues    that the       prosecutor engaged         in   misconduct when             he " staged] his


personal opinion about               how he   was ` more       confused'     as [   Rose'         s]    testimony   went   on."   Br. of


Appellant         at   28 ( quoting 2 VRP     at   87).    Burns appears to argue that this was improper argument

that expressed the prosecutor' s              personal opinion about          Rose'      s    credibility.      This argument is not


preserved.




             After arguing that it was inconsistent for Rose to say Burns was no longer in a relationship

with Sharpley and then claim Burns was upset because Sharpley was communicating with another




                                                                 21
No. 45195 -6 -II



man,    the   prosecutor commented, "[           W] e then hear more of her story, Ms. Rose' s story, and I begin

to become more confused."                2 VRP at 87. Burns did not object to this argument.


          It is misconduct for a prosecutor to state his or her personal belief as to a witness' s


credibility. State           v.   Warren, 165 Wn. 2d 17, 30, 195 P. 3d 940 ( 2008) (         citing State v. Brett, 126

Wn.2d 136, 175, 892 P. 2d 29 ( 1995),               cert.   denied, 516 U. S. 1121 ( 1996)), cert. denied, 556 U. S.


1192 ( 2009).         But Burns did not object to this argument, thus, even assuming but not deciding that

this argument was improper, he has waived this issue unless he can show that the improper

argument was so flagrant and ill-intentioned that no instruction could have cured the prejudice and


that the prejudice would have had a substantial likelihood of affecting the jury' s verdict. Emery,

174 Wn.2d        at    761.       To the extent the prosecutor' s reference to his becoming more confused is

improper argument reflecting his personal opinion of Rose' s credibility, if Burns had objected, the

trial court could have told the jury to disregard this statement and informed the jury that it (the

jury)   was    the    sole   credibility judge. Because this comment could have been cured with a proper


instruction had Burns              objected,   Burns has    waived    this issue.   Thus, Burns has failed to establish


prosecutorial misconduct.



                                                            III. SAG


                                           A. Ineffective Assistance of Counsel


          In his SAG, Burns argues that his trial counsel provided ineffective assistance when she


failed to use a peremptory challenge to avoid seating Juror 22. We disagree.

          To establish ineffective assistance of counsel, Burns must show that his counsel' s

representation was deficient and that he was prejudiced as a result. State v. McNeal, 145 Wn.2d

352, 362, 37 P. 3d 280 ( 2002).            Counsel' s performance is deficient only if it falls below an objective



                                                                22.
No. 45195 -6 -II



standard of performance. McNeal, 145 Wn.2d at 362. Prejudice results where there is a reasonable


probability that but for counsel' s deficient performance, the outcome would have differed.

McNeal, 145 Wn.2d at 362.


         Burns does not point to anything suggesting that Juror 22' s presence on the jury prejudiced

him nor does the record reveal any potential prejudice. And because we hold above that the trial

court did not err when it denied the defense motion to excuse Juror 22 for cause, Burns does not

show that his counsel' s failure to use a peremptory strike prevented us from addressing whether

the trial     court erred   in   denying   Burns'   motion   to   strike   the juror   for   cause.    Accordingly, this

argument fails.


                                                    B. Judicial Bias


          Finally, Burns appears to argue that the trial court judge was biased. Burns cites to the trial

court' s failure to grant the motion to excuse Juror 22 for cause and two instances where the trial


court overruled objections to the State' s closing argument asserting the State was arguing facts

outside the record. This argument fails.


             The appearance of fairness doctrine requires the absence of actual or apparent bias on the


part of the judge or decision -maker. State v. Worl, 91 Wn. App. 88, 96, 955 P. 2d 814 (citing State

v.   Dagenais, 47 Wn. App. 260, 261, 734 P. 2d 539 ( 1987)), review denied, 136 Wn.2d 1024 ( 1998).


To    succeed on    this claim, Burns " must present      evidence of actual or potential         bias."    Wori, 91 Wn.


App.    at   96. " Judicial   rulings alone almost never constitute a valid            showing    of   bias."   In re Pers.


Restraint ofDavis, 152 Wn.2d 647, 692, 101 P. 3d 1 ( 2004).




                                                             23
No. 45195 -6 -II



           We hold above that the trial court did not abuse its discretion in allowing Juror 22 to remain

on   the   jury;   thus, this   cannot   be   evidence of   bias.   And ruling against a defendant on objections

during closing argument is not evidence of bias. Accordingly, this argument fails.

           We affirm.


           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:




 We rswick, P. J.




                                                              24
