                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           February 9, 2016

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 45998-1-II

                                Respondent,

         v.

 LARRY TARRER,                                                  UNPUBLISHED OPINION

                                Appellant.

       MELNICK, J. — Larry Tarrer appeals his jury convictions of one count of murder in the

first degree, one count of attempted murder in the first degree, and one count of manslaughter in

the first degree for a 1991 shooting. We hold (1) the trial court did not abuse its discretion when

it denied Tarrer’s motions for continuance because it had tenable grounds and reasons to deny his

motions, (2) Tarrer fails to show evidence of the trial court’s actual or potential bias, (3) the trial

court did not comment on the evidence because the trial court’s attitude is not reasonably inferred

from its remarks, (4) the trial court did not abuse its discretion by excluding Tarrer’s expert witness

because it had tenable grounds and reasons to exclude the evidence under ER 702, (5) the

prosecutor’s errors do not amount to such pervasive error that they could not have been cured by

proper instruction, (6) Tarrer was not prejudiced by his counsel’s deficient performance, (7) the

trial court correctly instructed the jury on reasonable doubt, (8) there was no cumulative error, and

(9) we need not determine whether this matter should be assigned to a different judge on remand

because we are not remanding for a new trial. We affirm.
45998-1-II


                                              FACTS

I.        OVERVIEW

          In January 1991, Claudia McCorvey was six months pregnant. McCorvey’s apartment

served as a location for using and dealing crack cocaine. Bishop (Slim) Johns dealt crack cocaine

out of McCorvey’s apartment on January 8, 1991. Johns brought Lavern Simpkins and Larry

Tarrer to McCorvey’s apartment. Following an argument about Tarrer’s missing cocaine, Tarrer

left the apartment and went to a car. He retrieved a pistol and walked back to McCorvey’s

apartment.

          McCorvey saw Tarrer point the pistol at her. He shot her twice. As a result, McCorvey

was rendered a paraplegic. Her baby, Marquise McCorvey, was surgically delivered and lived for

less than one hour. Tarrer also fatally shot Simpkins.

II.       PROCEDURAL HISTORY

          In 1991, Tarrer entered an Alford/Newton1 plea to amended charges of murder in the second

degree and assault in the first degree. In 2004, while serving his sentence, Tarrer filed a CrR 7.8

motion to vacate his conviction. The trial court denied the motion. Tarrer appealed and we

reversed and remanded to the trial court consistent with In re Pers. Restraint of Andress, 147

Wn.2d 602, 56 P.3d 981 (2002), and In re Pers. Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801

(2004).2 The State then withdrew the 1991 amended information.




1
 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton,
87 Wn.2d 363, 552 P.2d 682 (1976).
2
     State v. Tarrer, noted at 130 Wn. App. 1010, 2005 WL 2746678.


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         In 2009, the State filed an amended information charging Tarrer with premeditated murder

in the first degree, attempted murder in the first degree, and manslaughter in the first degree. The

State added three sentencing aggravators3 to the attempted murder in the first degree charge.

         The case went to trial in 2009 and resulted in a mistrial. The State retried the case in 2010,

resulting in convictions on all counts. We reversed and remanded the case for prosecutorial

misconduct.4 The Honorable Katherine Stolz presided over both trials.

III.     TARRER’S THIRD TRIAL

         A.     Motions for Recusal and Continuance

         In September 2013, before his third trial, Tarrer moved the trial judge to recuse herself

because, he argued, she was not impartial. Tarrer argued that the judge’s comment during

sentencing following the second trial that “[t]his court is going to do its best to make sure you

never get out of prison alive” demonstrated actual bias and violated the appearance of fairness

doctrine. Clerk’s Papers (CP) at 121. The trial court found that Tarrer failed to establish actual

bias “because the court did nothing untoward in making its comments at the last sentencing

hearing.” CP at 125. The trial court additionally found that “[Tarrer] made this same argument

during the appeal from his conviction . . . [and] [t]he court of appeals rejected that request.” CP

at 125. The judge accordingly denied Tarrer’s motion.

         On December 12, 2013, Tarrer moved for a continuance of the trial date. Although five

weeks earlier Tarrer’s counsel represented to the court that he would be ready for trial, he argued



3
  They are: “[T]he victim’s injuries substantially exceeded the level of bodily harm necessary to
satisfy the elements of the offense”, “the current offense was a violent offense, and the defendant
knew that the victim of the current offense was pregnant,” and “the offense involved an invasion
of the victim’s privacy.” Clerk’s Papers (CP) at 76.
4
    State v. Tarrer, noted at 174 Wn. App. 1029, 2013 WL 1337943.


                                                   3
45998-1-II


that his ongoing investigation revealed the identity of another possible shooter. In denying the

motion, the trial court noted that defense counsel had been investigating the case for seven months,

the issues in Tarrer’s case were established, trial was to be held in one month, and Tarrer had

speedy trial rights.

        On January 10, 2014, three days before trial, Tarrer again moved for a continuance to seek

more time to create his witness list and prepare motions in limine. The trial court denied Tarrer’s

motion and noted that the witness lists were past due.

        B.      Pretrial

        Tarrer moved in limine to exclude and limit the suggestibility of the eyewitness

identification. In support of his motion, Tarrer submitted briefing. On the day of trial, Tarrer

requested that the trial court allow Dr. Geoffrey Loftus to testify on the unreliability of eyewitness

identification.5 Tarrer argued that the trial court should consider new case law, which Tarrer

included in his brief. The trial court responded:

                Well, you’re going to have to get some sort of a synopsis of what you think
        Dr. Loftus is going to testify to; but again, you know, I took a look through your
        memorandum I got this morning; and I went back and pulled up the case, you know,
        Section B, admission of eyewitness identification. . . . I went through all of it. I
        mean, that ruling was affirmed. That is the state of the law in this case. Whatever
        prospectively the Supreme Court might rule or the Court of Appeals might rule in
        the future, that’s not where we are right now. Irrespective of whatever New
        Hampshire, New Jersey, or some other state has done, this state, our Court of
        Appeals, Division II, has allowed that identification, both by the photomontage and
        in court, to stand; so you know, I don’t really intend—you know, you can argue it
        again; but you already know how I’m going to rule.

Report of Proceedings (RP) at 67-68.




5
  We affirmed the admissibility of eyewitness identifications of Tarrer based on a photo montage
in State v. Tarrer, 2013 WL 1337943 at *10-11.


                                                    4
45998-1-II


       Tarrer also moved in limine to limit the State’s closing argument based on our opinion

reversing Tarrer’s convictions because of prosecutorial misconduct. Prior to argument on these

motions, the State noted that it might waive closing argument. The trial court responded, “[The

State] can basically cut and paste his closing argument to avoid offending the Court of Appeals.”

RP at 85. The State notified the trial court that it did not intend on giving “any form of the declare-

the-truth argument” during closing. RP at 102. The trial court granted Tarrer’s motion to preclude

the State from making a declare-the-truth argument in closing, but denied his motion to preclude

the State from arguing that the jury should render a true verdict. The trial court stated:

       I think there’s a distinction between searching for the truth, or the truth is what you
       decide, and the instruction about render a true verdict. Since we do instruct them
       on that, I would assume that the appellate court, if they felt that was an inappropriate
       instruction from the Court, would have taken time to reverse it in their opinion.

RP at 103. The trial court also deferred its ruling on whether the State could use puzzle analogies

during closing argument “until or when and if we actually get to some sort of argument regarding

a puzzle.” RP at 109.

       Prior to its opening instructions to the jury, the trial court advised the parties that it was

going to emphasize the seriousness of juror misconduct and that it would point out a recent mistrial

resulting from juror misconduct in King County. Tarrer responded, “That’s fine.” RP at 180.

During preliminary jury instructions, the trial court told the jury:

       We cannot emphasize strongly enough that you are not to discuss the case or
       conduct any research . . . by yourself on the subject of this trial. This is very
       important because it can lead to a mistrial. That has recently happened both in King
       and Snohomish Counties where . . . the jurors have committed misconduct during
       deliberation by researching the issues in the case. That means the county has to try
       the case. In the . . . King County case, it was a rape case which means the victim
       will have to testify again. In the Snohomish case, it was a child rape case which
       meant that, ultimately, the Prosecutor’s Office dealt with the case because they did
       not want the five-year-old victim to have to testify again; so it’s very important that
       you not conduct any research.



                                                  5
45998-1-II


RP at 182-83.

       C.       Trial

       McCorvey testified at Tarrer’s trial. During redirect examination of McCorvey, the State

asked if she recalled Tarrer asking her if drug dealing was dangerous and if drug dealers could

have their drugs stolen. The State then asked, “[Tarrer] thought his drugs were stolen that night;

right?” RP at 688. Tarrer objected. Outside the jury’s presence, Tarrer argued that the State was

trying to characterize him as a drug dealer.

               THE COURT: Well, considering I’ve heard Mr. Tarrer testify before that
       he was a drug dealer, I mean—
               [THE STATE]: You can’t know that, Judge.
               THE COURT: I know I can’t know that. I mean, not officially. Personally,
       yes, I know that. All right.

RP at 689. The State made an offer of proof that Johns would testify that Tarrer was a drug dealer

and that the State would offer part of Tarrer’s prior testimony in which he admitted he was a drug

dealer. The trial court overruled Tarrer’s objection.

       Tarrer sought to introduce testimony from Dr. Eric Kiesel, a forensic pathologist. Tarrer

made an offer of proof that Dr. Kiesel would testify regarding the size of entrance and exit wounds

and what that typically meant. He would also testify that the medical records he reviewed were

consistent with entrance wounds in McCorvey’s back and exit wounds in her front. Dr. Kiesel had

not examined McCorvey, and his testimony would be based on his review of her medical records.

The trial court excluded Dr. Kiesel’s testimony, finding that Dr. Kiesel had not examined

McCorvey or her bullet wounds and his generalized opinion about bullet wounds was “not an

opinion with any certainty.” RP at 894. The court also determined that Dr. Kiesel’s proposed

testimony seemed to be an attempt to circumvent our previous ruling upholding exclusion of expert

testimony about other doctors’ opinions of McCorvey’s wounds.



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45998-1-II


       D.      Closing Argument

       During the State’s closing argument, the prosecutor argued that the jury should balance

Tarrer’s rights with the rights of his accusers. He stated,

               There was an early United States Supreme Court [J]ustice whose name was
       Benjamin Cardozo who said, [j]ustice, though due to the accused, is due to the
       accuser, too; We are to keep the balance true; and I tell you that because—while
       the defendant has every right to a fair trial, that doesn’t mean that while you
       deliberate the evidence in this case, you should not be mindful of Claudia
       McCorvey, Lavern Simpkins, Marquise McCorvey, and the others who have been
       affected by this case. It goes without saying, I think, that 23 years is a very long
       time to wait for some final justice to come in this case; but it is almost here.

RP at 1271. The prosecutor also argued that Dr. Loftus’s testimony was presented to “distract”

and “confuse” the jury, and to make it “hesitant about reaching a verdict.” RP at 1272. Tarrer

objected and argued the State mischaracterized the evidence. The trial court overruled the

objection.

       The prosecutor further stated:

               A reasonable doubt arising from the lack of evidence is the question of: Do
       you have enough? Again, there will always be more. . . . Do you wish you had
       DNA evidence . . . shoe prints . . . the gun and the ballistics . . .? I mean, all of
       these things are stuff that you could have that you don’t have; and I’m going to
       suggest to you that the law doesn’t let you think about those things when you decide
       if the case was proved beyond a reasonable doubt. What you look at is: Is the
       evidence that was actually presented enough?

RP at 1297-98.

       E.      Verdict

       The jury found Tarrer guilty of murder in the first degree, attempted murder in the first

degree with two aggravating factors, and manslaughter in the first degree. The trial court imposed

an exceptional sentence above the standard range of 896 months’ confinement. Tarrer appeals.




                                                  7
45998-1-II


                                           ANALYSIS

I.     MOTIONS FOR CONTINUANCE

       Tarrer argues that the trial court abused its discretion when it denied his motions for

continuance, infringing on his right to counsel because his lawyer did not have time to adequately

prepare. We disagree.

       A.      Standards of Review

       The trial court has broad discretion to grant or deny a motion for continuance. State v.

Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). We review a trial court’s decision to grant

or deny a continuance for an abuse of discretion. Downing, 151 Wn.2d at 272. We will not reverse

the trial court’s denial of a motion for continuance unless a defendant shows that the trial court’s

decision was manifestly unreasonable or rested on untenable grounds or reasons. Downing, 151

Wn.2d at 272. The trial court weighs many factors when considering a motion for continuance,

including “surprise, diligence, redundancy, due process, materiality, and maintenance of orderly

procedure.” Downing, 151 Wn.2d at 273.

       We review claims of a denial of Sixth Amendment rights, including the right to counsel,

de novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010); State v. Iniguez, 167 Wn.2d

273, 280-81, 217 P.3d 768 (2009). The constitutional right to assistance of counsel includes a

reasonable time for consultation and preparation.6 State v. Hartzog, 96 Wn.2d 383, 402, 635 P.2d


6
  Although Tarrer alleges the trial court’s ruling denying a continuance violated his right to
counsel, this allegation does not change the standard of review. As an example, our Supreme
Court reviewed a trial court’s ruling requiring a defendant attend trial in shackles for an abuse of
discretion where the defendant alleged a violation of his right to a fair trial. State v. Finch, 137
Wn.2d 792, 852-53, 975 P.2d 967 (1999); Hartzog, 96 Wn.2d at 401; State v. Dye, 178 Wn.2d
541, 548, 309 P.3d 1192 (2013). Not only do we agree with this approach, Tarrer argues that we
should review this alleged error under an abuse of discretion standard.




                                                 8
45998-1-II


694 (1981). As stated above, a motion for continuance will only be overturned if the trial court

abused its discretion. Downing, 151 Wn.2d at 272. “In determining whether a trial court has

abused its discretion, a reviewing court can find abuse only ‘if no reasonable person would have

taken the view adopted by the trial court.’” State v. Barker, 35 Wn. App. 388, 397, 667 P.2d 108

(1983) (quoting State v. Henderson, 26 Wn. App. 187, 190, 611 P.2d 1365 (1980)). “The test is

the same even though the constitutional issue of effective assistance of counsel is involved.

Moreover, ‘[t]he decision to deny the defendant a continuance will be disturbed on appeal only

upon a showing that the defendant was prejudiced or that the result of the trial would likely have

been different had the motion been granted.’” Barker, 35 Wn. App. at 396-97 (internal citation

omitted) (quoting State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146 (1982)).

       B.      No Abuse of Discretion

       Here, the trial court had tenable grounds and reasons to deny both motions for continuance.

At a pretrial hearing, Tarrer’s counsel assured the trial court that he would be prepared by the time

of trial. Approximately five weeks later, defense counsel moved to continue the trial because his

ongoing investigation revealed there may be another possible shooter. The State argued that this

merely speculative information did not justify further delaying trial. The trial court denied Tarrer’s

motion. It noted that defense counsel had been investigating the case for seven months, it had been

tried twice previously, and trial was scheduled to commence in one month. The trial court stated

that the previous seven months provided Tarrer’s counsel “more than adequate time to prepare,

given the fact that his case has gone to trial twice.” RP at 33.

       Thus, the trial court weighed many factors, including both Tarrer’s rights and trial

maintenance. After so weighing, the trial court denied the motion to continue the trial. The trial

court did not abuse its discretion. See Downing, 151 Wn.2d at 273.



                                                  9
45998-1-II


       Nor did the trial court abuse its discretion by denying Tarrer’s second motion for

continuance. Three days before trial, defense counsel again moved to continue the trial, but on a

different basis than it previously relied. This time, defense counsel sought more time to create his

witness list and prepare motions in limine. The State noted that defense counsel did not state with

particularly what issues would require more time, especially in light of the fact that counsel could

review the complete testimony of all witnesses from two previous trials. The State also informed

the trial court that the witnesses already indicated they did not wish to be interviewed again, and

that any such interviews would be redundant of previous interviews. The trial court denied this

motion for continuance of the trial date.

       The trial court did not abuse its discretion by denying this second motion for continuance

because Tarrer presented no compelling reasons to grant the motion. Despite having the benefit

of two previous trials to work from, and despite having had eight months to prepare, Tarrer cited

his general need for more time. Tarrer failed to show that the trial court’s decision to deny this

late motion for continuance rested on untenable grounds or reasons.

       Because the trial court did not abuse its discretion by denying either of the motions for

continuance, we need not go further. Tarrer fails to establish either an abuse of discretion or a

violation of his right to counsel. His claim fails.

II.    JUDICIAL BIAS

       A.      Standard of Review

       Criminal defendants have a due process right to a fair trial by an impartial judge. U.S.

CONST. amends. VI, XIV; WASH. CONST. art. I, § 22; In re Pers. Restraint of Swenson, 158 Wn.

App. 812, 818, 244 P.3d 959 (2010). Impartial means the absence of bias, either actual or apparent.

State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). “The law goes farther than requiring



                                                  10
45998-1-II


an impartial judge; it also requires that the judge appear to be impartial.” State v. Madry, 8 Wn.

App. 61, 70, 504 P.2d 1156 (1972).

       We review constitutional issues de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P.3d

1055 (2010). Claims of judicial bias are reviewed under the appearance of fairness doctrine that

states “‘a judicial proceeding is valid only if a reasonably prudent and disinterested observer would

conclude that all parties obtained a fair, impartial, and neutral hearing.’” State v. Bilal, 77 Wn.

App. 720, 722, 893 P.2d 674 (1995) (quoting State v. Ladenburg, 67 Wn. App. 749, 754-55, 840

P.2d 228 (1992)). But the party who argues that a judge has a bias must support the claim with

evidence. Bilal, 77 Wn. App. at 722. A claim unsupported by such evidence is without merit.

State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992). Thus, before we will apply

the appearance of fairness doctrine, Tarrer must show such evidence of a judge’s actual or potential

bias. Post, 118 Wn.2d at 619; State v. Carter, 77 Wn. App. 8, 11, 888 P.2d 1230 (1995).

       A defendant who has reason to believe that a judge should be disqualified because the

judge’s impartiality might reasonably be questioned “must act promptly to request recusal and

‘cannot wait until he has received an adverse ruling and then move for disqualification.’” Swenson,

158 Wn. App. at 818 (quoting State v. Carlson, 66 Wn. App. 909, 917, 833 P.2d 463 (1992)). A

party must use due diligence in discovering possible grounds for recusal and then act upon this

information by promptly seeking recusal. Sherman v. State, 128 Wn.2d 164, 205 n.15, 905 P.2d

355 (1995). To satisfy the threshold requirement for review, Tarrer must identify constitutional

error and show how this alleged error resulted in actual prejudice to his rights that makes it

“manifest.” State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).




                                                 11
45998-1-II


          B.     No Bias7

          Tarrer first argues that the trial court’s remarks, “‘Well, considering I’ve heard Mr. Tarrer

testify before that he was a drug dealer’” and “‘I know I can’t know that. I mean, not officially.

Personally, yes, I know that’” show a bias against him. Br. of Appellant at 23 (quoting RP at 689).

Tarrer argues that the trial court’s remarks demonstrate that it was ready to overrule Tarrer’s

objection based on evidence from previous trials and that it did not perform its duties impartially.

          The trial court’s remarks do not provide evidence of actual or potential bias against Tarrer.

The State’s offer of proof, made immediately after the trial court’s remarks, clearly shows what

the trial court anticipated: that the State would offer evidence that Tarrer was a drug dealer. As

Tarrer concedes, the trial court based its ruling on the State’s offer of proof that evidence would

establish that Tarrer was a drug dealer; Tarrer does not assign error to the trial court’s ruling.

Evidence at his third trial did establish that Tarrer was a drug dealer.8 The trial court’s remarks

demonstrate its anticipation of the State’s offer of proof and do not provide evidence of actual or

potential bias against Tarrer.

          Tarrer next argues that the trial court showed bias against him by refusing to consider new

case law on the issue of eyewitness identification and by making a ruling before considering

Tarrer’s arguments. Yet, the record demonstrates that, contrary to Tarrer’s argument, the trial

court considered Tarrer’s argument, reviewed applicable case law, and then disagreed with Tarrer

on the legal issue. The trial court’s decision does not provide evidence of actual or potential bias




7
 Prior to trial, Tarrer moved the trial court to recuse itself because it lacked impartiality. The trial
court denied Tarrer’s motion by written order, and Tarrer does not appeal that denial. The issues
he raises on appeal relating to bias and appearance of fairness are different from those he raised
below.
8
    McCorvey’s earlier testimony also established that she overheard Tarrer discussing losing drugs.


                                                   12
45998-1-II


against Tarrer, but rather shows legal determinations against Tarrer’s interest. See In re Davis,

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

       Tarrer next argues that the trial court showed bias when it commented that, “‘[The State]

can basically cut and paste his closing argument to avoid offending the Court of Appeals.’” Br. of

Appellant at 25 (quoting RP at 85).        Tarrer argues that this comment makes light of the

prosecutorial misconduct during Tarrer’s previous trial, “suggesting that the only problem with the

prosecutor’s previous arguments was that the Court of Appeals found them offensive.” Br. of

Appellant at 25. The comment acknowledges that Tarrer’s previous convictions were reversed on

the basis of prosecutorial misconduct and seems to express frustration with us, but it does not

express favor towards the State. The trial court’s comment is not evidence of bias.

       Tarrer further argues that the trial court “reveal[ed] a lack of concern for Tarrer’s right to

a fair trial” when it denied Tarrer’s motions to limit the State’s closing argument. Br. of Appellant

at 26. Tarrer does not assign error to the trial court’s rulings, but argues that the rulings

demonstrate “an absence of suitable interest in ensuring Tarrer received a fair trial.” Br. of

Appellant at 27. Again, the trial court’s decisions do not provide evidence of actual or potential

bias against Tarrer, but rather show legal determinations against Tarrer’s interest. See Davis, 152

Wn.2d at 692-93.

       Because Tarrer fails to show evidence of the trial court’s actual or potential bias, we will

not apply the appearance of fairness doctrine, and Tarrer’s claim fails. See Post, 118 Wn.2d at

619; Carter, 77 Wn. App. at 12.




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III.   COMMENT ON THE EVIDENCE

       A.      Standard of Review

       Article IV, section 16 of the Washington Constitution prohibits judges from commenting

on evidence. State v. Elmore, 139 Wn.2d 250, 275, 985 P.2d 289 (1999). We review constitutional

questions de novo. State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005). A trial judge is

prohibited from making even implied comments on the evidence in order “to prevent the jury from

being unduly influenced by the court’s opinion regarding the credibility, weight, or sufficiency of

the evidence.” State v. Sivins, 138 Wn. App. 52, 58, 155 P.3d 982 (2007). A trial court’s conduct

violates the constitution only if its attitude is “‘reasonably inferable from the nature or manner of

the court’s statements.’” Elmore, 139 Wn.2d at 276 (quoting State v. Carothers, 84 Wn.2d 256,

267, 525 P.2d 731 (1974)); see also State v. Ciskie, 110 Wn.2d 263, 283, 751 P.2d 1165 (1988)

(“An impermissible comment on the evidence is an indication to the jury of the judge’s personal

attitudes toward the merits of the cause.”).

       B.      No Comment on the Evidence

       Tarrer argues that the trial court’s opening instructions to the jury regarding juror

misconduct which, if happened, would require victims to testify again was an impermissible

comment on the evidence because it “aligned the trial court on the side of victims and against

defendants, implying that the jurors should share this view.” Br. of Appellant at 29. The trial

court remarked about victims in other cases in the context of admonishing the jury to avoid

misconduct. The trial court referred to examples of juror misconduct that resulted in mistrials to

emphasize the consequences of juror misconduct and the need to avoid it. The statements were

not made in reference to Tarrer or the witnesses in this case. The trial court’s attitude towards the




                                                 14
45998-1-II


merits of Tarrer’s case are not reasonably inferred from the nature or the manner of the trial court’s

statements. The trial court did not comment on the evidence.

IV.    EXPERT WITNESS EXCLUSION

       Tarrer argues that the trial court violated his right to present a defense when it excluded his

expert witness. The State argues that the trial court did not err, but that even if it erred, the error

was harmless. We agree with the State.

       A.      Standard of Review

       We review the trial court’s admission or exclusion of expert testimony for an abuse of

discretion.9 State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004). The trial court’s discretion

is broad, and we reverse the trial court’s decision only if it rests on unreasonable or untenable

grounds. State v. Rafay, 168 Wn. App. 734, 783-84, 285 P.3d 83 (2012).

       The federal and state constitutions’ guarantee a defendant the right to present a defense.

U.S. CONST. amends. V, VI, XIV; WASH. CONST. art. I, § 22; State v. Wittenbarger, 124 Wn.2d

467, 474, 880 P.2d 517 (1994). But, this constitutional right is not absolute and does not extend

to irrelevant or inadmissible evidence. State v. Aguirre, 168 Wn.2d 350, 362-63, 229 P.3d 669

(2010); State v. Maupin, 128 Wn.2d 918, 925, 913 P.2d 808 (1996). Thus, the right to present a

defense is implicated only if the trial court excludes admissible evidence.

       B.      No Abuse of Discretion

       ER 702 governs the admission of expert testimony:

               If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness qualified

9
  Tarrer argues the trial court abused its discretion by excluding expert testimony and that this error
violated his right to defend himself. “Alleging that a ruling violated the defendant’s right to a fair
trial does not change the standard of review.” Dye, 178 Wn.2d at 548.




                                                  15
45998-1-II


       as an expert by knowledge, skill, experience, training, or education, may testify
       thereto in the form of an opinion or otherwise.

Expert testimony is admissible under ER 702 if “‘(1) the witness qualifies as an expert, (2) the

opinion is based upon an explanatory theory generally accepted in the scientific community, and

(3) the expert testimony would be helpful to the trier of fact.’” State v. Swan, 114 Wn.2d 613, 655,

790 P.2d 610 (1990) (quoting State v. Allery, 101 Wn.2d 591, 596, 682 P.2d 312 (1984), cert.

denied, 498 U.S. 1046 (1991).

       Under CrR 4.7(b)(1), the defense must produce the names, addresses, and testimony of

witnesses no later than the omnibus hearing. The trial court has sound discretion to manage the

discovery process, and in extraordinary cases, it may exclude evidence that was presented in

violation of the rules. State v. Hutchinson, 135 Wn.2d 863, 882, 959 P.2d 1061 (1998).

       Here, the trial court did not abuse its discretion in excluding Tarrer’s expert because its

decision rested on tenable grounds. The request to admit Dr. Kiesel’s testimony first occurred

during the third week of trial, it lacked foundation, and it appeared to be a tactic to introduce

inadmissible evidence.

       First, the trial court noted that Tarrer first sought to introduce Dr. Kiesel’s testimony three

weeks into trial. The exclusion of evidence that violates court discovery rules is an extraordinary

remedy, but the trial court has sound discretion to manage discovery. Hutchinson, 135 Wn.2d at

882.

       Second, the trial court also excluded Dr. Kiesel’s testimony because it appeared to lack

foundation. The trial court noted that Dr. Kiesel had not examined McCorvey or her bullet

wounds, so his opinion on the wounds lacked foundation. All Dr. Kiesel could testify to were the

statements and opinions of the other doctors who did examine McCorvey’s wounds. Thus, the

trial court concluded that Dr. Kiesel’s highly generalized opinion about bullet wounds was “not an


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opinion with any certainty that we’re going to bring into this courtroom.” RP at 894. The trial

court properly considered this factor.

       Finally, the trial court noted that Dr. Kiesel’s proposed testimony appeared to be an attempt

to circumvent our previous ruling about the underlying medical records. We upheld the exclusion

of expert testimony about other doctors’ opinions of whether McCorvey’s wounds were entrance

or exit wounds. See Tarrer, 2013 WL 1337943, at *10. Because the trial court relied on tenable

grounds and tenable reasons to exclude Dr. Kiesel’s testimony, it did not abuse its discretion and

therefore, Tarrer’s argument that he was denied a fair trial fails.

       C.      Harmless Error

       Tarrer argues that the exclusion of his expert witness constituted a constitutional violation

of his right to present a defense and that the error entitles him to a new trial.10 Error of

constitutional magnitude can be harmless if it is proved to be harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Error is harmless

“if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the

same result without the error.” State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002) (citing State

v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990)).

       Here, even if the trial court erred in excluding Tarrer’s expert witness’s testimony, we are

still convinced beyond a reasonable doubt that any reasonable jury would have reached the same

result even with Dr. Kiesel’s testimony. His testimony would have merely shown that doctors

sometimes misclassify entrance and exit wounds. Thus, Dr. Kiesel may have called into doubt

McCorvey’s testimony that she was shot in the front. However, this testimony would not have



10
   Although the exclusion of testimony is not constitutional, we rely on the higher harmless error
standard since Tarrer alleges a constitutional violation of his right to present a defense.


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impeached McCorvey’s testimony that Tarrer shot her and Simpkins or countered the medical

records that indicated that McCorvey was shot in the front. Because of the overwhelming amount

of evidence supporting Tarrer’s conviction, we are convinced beyond a reasonable doubt that, even

with Dr. Kiesel’s testimony, any reasonable jury would have convicted Tarrer.

V.     PROSECUTORIAL MISCONDUCT

       Tarrer argues that he did not receive a fair trial because numerous instances of prosecutorial

misconduct during closing argument “eased the State’s burden of proof and destroyed the

presumption of innocence.” Br. of Appellant at 36. Although the prosecutor did err in a few

instances, the errors do not require reversal.

       A.      Standard of Review

       A defendant who alleges prosecutorial misconduct must first establish that the prosecutor’s

conduct was improper. State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653 (2012). Once a

defendant meets this threshold, we must determine whether the defendant was prejudiced. Emery,

174 Wn.2d at 760. A defendant is prejudiced if there is a substantial likelihood that the misconduct

affected the jury’s verdict. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673

(2012). “We review a prosecutor’s comments during closing argument in the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the jury instructions.”

State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).

       If the defendant objected at trial, we determine if there was a substantial likelihood that the

prosecutor’s misconduct prejudiced the defendant by affecting the jury’s verdict. Emery, 174

Wn.2d at 760. If the defendant did not object at trial, he “is deemed to have waived any error,

unless the prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction could not

have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. When reviewing a claim that



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prosecutorial misconduct requires reversal, we review the statements in the context of the entire

case. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011).

        B.      Appealing to Jury’s Sympathy

        Tarrer claims that two of the prosecutor’s arguments improperly influenced the jury. The

first is when the prosecutor quoted Benjamin Cardozo and told the jury to balance Tarrer’s rights

with the accusers’ rights. The next is when the prosecutor stated, “‘It goes without saying . . . that

23 years is a very long time to wait for some final justice to come in this case.’” Br. of Appellant

at 41 (quoting RP at 1271). Tarrer argues that the prosecutor’s remarks diminished the jury’s role,

lowered the burden of proof, and suggested to the jury that it should convict on improper grounds.

Tarrer did not object at trial.

        The prosecutor misstated the law in both instances. The role of the jury is not to balance

the rights of the accused and the accuser, rather, the “jury’s job is to determine whether the State

has proved the charged offenses beyond a reasonable doubt.” Emery, 174 Wn.2d at 760. And

both of the prosecutor’s remarks improperly appeal to the jury’s sympathy. See State v. Pierce,

169 Wn. App. 533, 555, 280 P.3d 1158 (2012). Reference to the amount of time between the

crimes and “final justice” served no purpose other than to appeal to the jury’s sympathy. It was

not relevant to Tarrer’s guilt.

        Even though the prosecutor’s remarks were improper, Tarrer cannot show that the remarks

were so flagrant and ill-intentioned that a curative instruction would be ineffective. Here, the

prosecutor correctly argued the State’s burden of proof. If the defense had objected to the two

comments, curative instructions could have cured any prejudice.




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       C.      Reasonable Doubt Standard

       Tarrer next argues that the prosecutor committed misconduct when he discussed the

reasonable doubt standard and stated that the law did not let the jury consider a lack of evidence,

i.e. that it did not have DNA evidence, shoe prints, or the gun and the ballistics. Essentially, Tarrer

claims the prosecutor suggested that the jury could not consider a lack of evidence in its

deliberations. Tarrer did not object to the argument. After making this argument, the prosecutor

shortly thereafter correctly told the jury that a reasonable doubt may arise from a lack of evidence.

       The prosecutor erred in suggesting to the jury that it could not look at the lack of evidence.

However, this error was not so flagrant and ill-intentioned that a curative instruction would not

have cured any resulting prejudice.

       D.      Disparaging the Defense

       Tarrer next argues that the prosecutor committed misconduct by disparaging the defense

when he argued that “‘[Dr.] Loftus’s entire testimony was designed to make you think that it’s

impossible for any eyewitness to ever accurately identify . . . somebody who committed a crime

against them.’” Br. of Appellant at 40-41 (quoting RP at 1272). On appeal, Tarrer argues that the

prosecutor “implied that the defense used trickery, distraction, and confusion.” Br. of Appellant

at 41. Tarrer objected below, arguing that the prosecutor mischaracterized the evidence, and the

trial court overruled his objection.

       It is misconduct for the prosecutor to impugn the role or integrity of defense counsel. State

v. Lindsay, 180 Wn.2d 423, 431-32, 326 P.3d 125 (2014). For example, a prosecutor commits

misconduct by referring to the defense’s case as “bogus” or “involving ‘sleight of hand’” because

such language implies “wrongful deception or even dishonesty in the context of a court

proceeding.” Thorgerson, 172 Wn.2d at 451-52. But here, the prosecutor’s remarks were directed



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at the weight of Loftus’s testimony. The prosecutor was merely drawing a permissible inference

from the evidence about the credibility of a witness, not disparaging the defense.

        E.      Cumulative Misconduct

        Finally, Tarrer argues that these alleged instances of prosecutorial misconduct were so

pervasive that they affected the outcome of the trial and could not have been cured with proper

instruction. We disagree.

        Although “‘the cumulative effect of repetitive prejudicial prosecutorial misconduct may be

so flagrant that no instruction or series of instructions can erase their combined prejudicial effect,’”

such is not the case here. Lindsay, 180 Wn.2d at 443 (internal quotation marks omitted) (quoting

Glasmann, 175 Wn.2d at 707). Here, the only two instances of improper argument that Tarrer

establishes are the prosecutor’s appeals to the jury’s sympathy. Each argument was distinct and

each could have been easily cured by proper instruction to the jury. Additionally, they were two

relatively minor comments in the context of the State’s argument as a whole. We hold that the

two errors do not amount to such pervasive error that they could not have been cured by proper

instruction.

VI.     INEFFECTIVE ASSISTANCE OF COUNSEL

        A.      Standard of Review

        “Whether a defendant received ineffective assistance of counsel is a mixed question of law

and fact, which we review de novo.” State v. McLean, 178 Wn. App. 236, 246, 313 P.3d 1181

(2013); In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). To prove

ineffective assistance of counsel, Tarrer must show that (1) counsel’s performance was so deficient

that it “fell below an objective standard of reasonableness” and that (2) the deficient performance

prejudiced him. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (citing Strickland v.



                                                  21
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Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Failure to establish

either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.

There is a strong presumption that defense counsel’s performance was not deficient. State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish prejudice, Tarrer must show

that the deficient performance prejudiced his case. See Fleming, 142 Wn.2d at 865.

       B.      Expert Witness Deadline

       Tarrer first argues that his counsel was ineffective for failing to timely disclose Dr. Kiesel

as an expert witness. Defense counsel has a duty “to bear such skill and knowledge as will render

the trial a reliable adversarial testing process.” Strickland, 466 U.S. at 688. Failing to disclose an

expert witness by the discovery deadline falls below an objective standard of reasonableness.

Therefore, Tarrer’s counsel’s performance was deficient. However, Tarrer cannot demonstrate

prejudice. As discussed above, the trial court properly excluded Dr. Kiesel’s testimony for several

reasons, including lack of foundation and that the proposed testimony appeared to be an attempt

to circumvent our previous ruling about the underlying medical records. Tarrer cannot show that

the deficient performance affected his case because he cannot demonstrate that the trial court

would have admitted Dr. Kiesel’s testimony but for the missed discovery deadline. Because no

prejudice exists, his ineffective assistance of counsel claim fails. See Strickland, 466 U.S. at 700.

       C.      Failure to Object to Prosecutor’s Closing Argument

       Tarrer next argues that his counsel was ineffective for failing to object to the prosecutor’s

improper closing argument. Even if his counsel’s performance was deficient, Tarrer again fails to

demonstrate prejudice. As discussed above, though some of the prosecutor’s comments were




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improper, the errors do not amount to such pervasive error that they could not have been cured by

proper instruction. Tarrer’s ineffective assistance of counsel claim fails because there was no

prejudice. See Strickland, 466 U.S. at 700.

VII.    REASONABLE DOUBT MANDATORY JURY INSTRUCTION

        In a supplemental assignment of error, Tarrer argues that the “reasonable doubt” jury

instruction was constitutionally deficient because it required the jury to articulate a reason for

having a reasonable doubt. But, Tarrer concedes that the trial court followed our Supreme Court

when it used WPIC 4.01, 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed. 2008), to instruct the jury. The Supreme Court

recently reaffirmed that WPIC 4.01 is “the correct legal instruction on reasonable doubt.” State v.

Kalebaugh, 183 Wn.2d 578, 585-86, 355 P.3d 253 (2015). The trial court did not err.

VIII.   CUMULATIVE EFFECT OF ERROR

        The defendant bears the burden of proving an accumulation of error of sufficient magnitude

that retrial is necessary. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, cert.

denied, 513 U.S. 849 (1994). Cumulative error may warrant reversal, even if each error standing

alone would otherwise be considered harmless. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390

(2000). The doctrine does not apply where the errors are few and have little or no effect on the

outcome of the trial. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Where no

prejudicial error is shown to have occurred, cumulative error cannot be said to have deprived the

defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). If any error

occurred in the trial, it was harmless; therefore, there was no cumulative error.




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        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.




                                                            Melnick, J.

We concur:




        Worswick, J.




        Johanson, C.J.




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