### FILED March 8, 2016 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,

v. WILLIAM PATRICKMCBRIDE, Appellant. ) ) ) ) ) ) ) ) ) No. 

### 32318-8-111

OPINION PUBLISHED IN PART

SIDDOWAY, C.J. -WhitmanCounty offeredpleabargains to Kenneth Himes and SheilaEvans under whichthey wouldbe chargedwith onlytwo crimes for a rash of burglaries in whichthey were involved ifthey revealed the location ofthe stolen property. They were also required bytheirpleabargainto testify againstthe defendant, William McBride, whomthey implicated intwo ofthe crimes. The trial againstMr. McBridepittedthe credibility ofthe only defense witnessMr. McBride's girlfriend, Amy Baird-againstthe credibility ofMr. Himes and Ms. Evans. Mr. McBride contends on appeal thatthe trial court abused its discretion in allowing the State to impeachMs. Bairdwith evidence about a prior conviction exceeding what is permittedby ER609(a), and thathe was prejudicedbyprosecutorial vouching for State witnesses through testimony and argument, andby theprosecutor'sNo. 32318-8-111 State v. McBride explicit statement, in closing argument, thatMs. Bairdhad lied. Insofar as his own lawyer should have objected to the misconduct and sought curative action by the court, Mr. McBride alleges ineffective assistance ofcounsel. In the published portion ofthis opinion, we hold that ER 608(b) permits impeachment only by specific acts that have not resulted in conviction, while impeachmentby way ofcriminal conviction is treated exclusively under ER 609. The trial court abused its discretion in admitting more conviction evidence against Ms. Baird than is permitted under ER609. In the unpublished portion ofthis opinion, we hold that the State engaged in prosecutorial misconduct and that Mr. McBride received ineffective assistance of counsel. Given the central importance ofcredibility to the State's case, the errors, collectively, were not harmless. We reverse and remand for a new trial. 1 FACTS AND PROCEDURAL BACKGROUND In November and December 2013, the Whitman County Sheriffs Office received reports ofa rash ofburglaries in the northern part ofthe county. Among them were a report by Dominic Petrovich that two motorcycles were stolen out ofhis carport in

1Given our disposition ofthe case, we do not address Mr. McBride's argument that the trial court erred by imposing a deoxyribonucleic acid (DNA) collection fee or issues raised in his statement ofadditional grounds. In connection with the challenge to the court's imposition ofa $100 DNA collection fee, we point outthis court's recent decision in State v. Thornton, 188 Wn. App. 371, 353 P.3d 642 (2015). 2No. 32318-8-III State v. McBride

Rosalia onthe night ofNovember 17 and a reportbyFred Wagner in mid-Decemberthat his storage unit in Tekoahad beenbroken into and been "all but cleaned out." Report of Proceedings (RP) at 41. A yellow CanAm four-wheeler and a Kubota utility vehicle

were also taken at aroundthe same time from Arlo Huber's residence north ofTekoa. Law enforcement initially had no leads as to who committedthe burglaries, and believed they hadreached a dead end. Butwhen Deputy Michael Jordan had occasion in late Decemberto speakto Amy Baird, who he was investigating in connection with an unrelated matter, he asked ifshe knew anything about the burglaries. Ms. Baird, the longtime girlfriend ofWilliam McBride, gave himthe names oftwo individuals, Lance Garrett and Stan Lowley, whom she claimedtohave heard were involved in different thefts in the Tekoa area. Police officers investigated Mr. Lowley's property in Idaho, locatedjust across the border from Tekoa, where Mr. Garrett was also living. While there, Deputy Jordan found two motorcycles, which he confirmedhadthe same vehicle identification numbers as those stolen from Mr. Petrovich. He also observed a yellow four-wheeler and a Kubota matching the description ofthe ones thathadbeentaken from the residence ofMr. Huber. Fromtheir interview with Mr. Lowley and Mr. Garrett, the officers learned that Mr. Himes may have been involved in stealing the Kubota and the four-wheeler. On December 28, Deputy Jordan arrested Mr. Himes in connection withthe burglary ofMr. Huber. Although Mr. Himes initially refused to talkto police, the 3No. 32318-8-111 State v. McBride

officers eventually offeredto reduce the charges he would face from multiple burglaries to only two counts ofsecond degree possession ofstolenproperty ifhe agreed to give them a statement as to where the rest ofthe stolenproperty was located. Believingthat Mr. Himes's girlfriend SheilaEvans was involved, the State offered her a plea deal under which she wouldplead guilty to one count ofburglary in the second degree and pay restitution. Both Mr. Himes and Ms. Evans had implicated Mr. McBride and were required to testify truthfully onthat score at trial. Both agreed to the deals. Deputy Jordan learned from his interview ofMr. Himes that Mr. Himes was central to most ofthe recentburglaries, ifnot the ringleader. Mr. Himes and Ms. Evans told police thatthey, along with Mr. McBride, had broken into Mr. Wagner's storage unit. Mr. Himes also toldpolice thathe had stolen Mr. Petrovich's motorcycles from Rosalia on December 18, with some help from Mr. McBride and another individual named Donnie Rower. Mr. Himes saidhe stole the smaller motorcycle byhimselfbefore going back to his place in Oakesdale in orderto have Mr. McBride and Mr. Rowerhelp him load the larger motorcycle into a trailer. Mr. McBride was chargedwith second degree burglary based on his alleged involvement in the Tekoa storage unit theft. He was chargedwiththeft ofa motor vehicle, as either an accomplice or a principal, based on his allegedparticipation in stealingMr. Petrovich's larger motorcycle.

4No. 32318-8-111 State v. McBride

Attrial, the State'sprincipal witnesses were Mr. Himes and Ms. Evans. Although Mr. McBride did nottestify at trial, Ms. Baird testified for the defense. We reserve most ofour discussion ofthe evidence and argument at trial to the unpublishedportion ofthis opinion, where it is relevant to the State's argument that any error was harmless. Relevant to the ER 608/609 issue, the State cross-examined Ms. Baird at trial about an occasion in 2013 when Mr. McBride lied to police about his name and Ms. Baird had gone along with the misrepresentation, resulting in her conviction for making a false statementto a police officer.2 The prosecutor inquired about the facts underlying the charge rather than the conviction itself. A defense objection that questioning about details ofthe crime exceeded what was permitted by ER 609 was overruled. The prosecutor's continued questioning revealed not only the details ofMs. Baird's deceptive conduct on that occasion, but Mr. McBride's as well. Thejury found Mr. McBride guilty as charged. He was sentenced to 68 months in connection with the burglary and 43 months for the motor vehicle theft. He appeals. ANALYSIS Mr. McBride first claims that the trial court abused its discretion by allowing the

2 Knowingly making an untrue statementto a public servant is proscribed by RCW 9A.76.020, and "is clearly a crime which involves a false statement and is admissible under ER609(a)(2)." State v. Burton, 33 Wn. App. 417, 420, 655 P.2d 259 (1982), rev 'd on othergrounds, 101 Wn.2d 1, 676 P.2d 975 (1984), overruledon othergrounds by State v. Ray, 116 Wn.2d 531, 543-45, 806 P.2d 1220 (1991). 

### 5No. 32318-8-III State v. McBride prosecutorto elicit details from Ms. Baird about a prior misdemeanor conviction for making a false statementto apolice officer in 2013. According to Mr. McBride, the line ofquestioning exceededthe permissible scope ofER609(a). The State now argues that it

was offeringthe evidence under ER 608(b). We begin with the trial record and then tum to evidence that may be admitted under the two rules. On cross-examination, the prosecutor asked Ms. Baird ifshe "only evertell[s] the truth," to which she responded, "I do my level best." RP at 234. He then asked her whether she tells the truth to law enforcement, and ifshe would ever lie for Mr. McBride. After Ms. Bairdresponded that she would never lie for Mr. McBride when it comes to stealing, the prosecutor asked her ifshe would "lie about his name." Id. Ms. Baird acknowledgedthat she would, and that she had in fact done so: [PROSECUTOR]: You lied about his name in September of2013- [MS. BAIRD]: Yes, I did- [PROSECUTOR]: -fivemonths ago. Why? [MS. BAIRD]: I didn'tnecessarily-WhatI said was that William McBride was abig boy, he could stated [sic]-his name. I wasn't going to give information otherwise. [PROSECUTOR]: You didn'ttell the police he was someone else? [MS. BAIRD]: Huh-huh. [PROSECUTOR]: You didn'ttell them he was Dan McBride? [MS. BAIRD]: No. I mentioned Dan. I didn't say Dan McBride. I didn't say that was his name. I said, "Askhim, he's a bigboy, he can (inaudible)." RP at 234-35. Defense counsel objected to the prosecutor's line ofquestioning on the grounds that it wentbeyond what is permitted by ER 609. The court excused thejury,

6No. 32318-8-III State v. McBride

and outside the presence ofthejury, Mr. McBride's lawyer argued, "I think what [the prosecutor] would like to do is go down all ofthe specifics-butI thinkthe evidence rule contemplatesjustthe fact ofthe conviction." RP at 235. The prosecutor arguedthe State shouldbe able to questionMs. Baird regarding the details surroundingthe conviction because it was not impeachingher with it and "she's obviously testifyingto [it] freely and remembers it well." RP at 236. He did not say that he was offeringthe evidence under ER 608(b) or identify a rule other than ER609 on which he relied. The court overruled the objection, noting that it "sounded [like] proper impeachmentto me,-asthe evidence ofa conviction. So I'11 overrule the objection." RP at 237. Thejuryreturned, and theprosecutorresumed questioning Ms. Baird about the circumstances ofher offense: [PROSECUTOR]: Talking about an incident five months ago, where you liedto police andgot convicted for it, regarding William McBride. You werepresentwith William andsomebody else in Kennewick, Washington, in September of 2013? [MS. BAIRD]: Yes. [PROSECUTOR]: Okay. And youwere contactedby law enforcement there. [MS. BAIRD]: Yeah. [PROSECUTOR]: Andwhile there, did the defendantgive a false name to the officers? [MS. BAIRD]: Yes. [PROSECUTOR]: Okay. Didhe give the name of his brother Daniel? [MS. BAIRD]: Yes. [PROSECUTOR]: And when you were asked by the officers, you said you had known Daniel a very longtime, didn't you? 7No. 32318-8-111 

### State v. McBride [MS. BAIRD]: I have. [PROSECUTOR]: Okay. You've also known William a really long time, haven't you? [MS. BAIRD]: I have. [PROSECUTOR]: You didn'ttell them that Daniel was really William McBride. [MS. BAIRD]: I didn't. RP at 237-38 (emphasis added). ER608 and 609 both address evidence that may and may not be admitted for the purposes ofattacking a witness's credibility. ER609(a) states: Forthe purpose ofattacking the credibility ofa witness in a criminal or civil case, evidence thatthe witness has been convicted ofa crime shall be admitted ifelicited from the witness or established by public record during examination ofthe witness but only ifthe crime (1) was punishable by death or imprisonment in excess of 1yearunderthe law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless ofthe punishment. Mr. McBride does not dispute that Ms. Baird's 2013 misdemeanor conviction for false statement was admissible under ER 609(a), but argues thatthe cross-examination exceeded what is permitted underthe rule. "Cross examination onprior convictions under ER609(a) is limited to facts contained in the record ofthe prior conviction: the fact ofconviction, the type ofcrime, and the punishment imposed." 

### State v. Coe, 101 Wn.2d 772, 776, 684 P.2d 668 (1984); 

### State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996). This is because "[c]ross examination exceedingthese bounds is irrelevant and likely to be unduly prejudicial, hence inadmissible." 

### Coe, 101 Wn.2d at 776. As the 8No. 32318-8-111 State v. McBride

. court explained in State v. Coles, 28 Wn. App. 563, 573, 625 P.2d 713 (1981), "[t]he

details ofthe acts leading to the prior convictions are not admissible" under ER 609 because "the only purpose ofsuch information in a subsequent trial on an unrelated offense is to bring irrelevant evidence before thejuryto insinuate that conviction ofthe prior offense somehow is proofofdefendant's guilt in the present action." The State did not mention ER608(b) in offering the evidence in the trial courtbut argues on appeal that it is an independent and sufficient basis on whichit could crossexamine Ms. Baird about the conduct for which she was convicted. ER608(b) provides: Specific instances ofthe conduct ofa witness, for the purpose ofattacking or supportingthe witness' credibility, otherthan conviction ofcrime as provided in rule 609, may notbeproved by extrinsic evidence. They may, however, in the discretion ofthe court, ifprobative oftruthfulness or untruthfulness, be inquired into on cross examination ofthe witness (1) concerning the witness' character for truthfulness oruntruthfulness, or (2) concerning the character for truthfulness or untruthfulness ofanother witness as to which characterthe witness being cross-examined has testified. The State argues that unlike ER 609, cross-examination underER608(b) is not limited to the fact ofthe conviction, the type ofcrime, and the punishment. Whatthe State does not address is whether ER 608(b) and ER609 are intended to be mutually exclusive, with ER 608(b) applying only to conduct for which there has been

no conviction. An ambiguity arises depending onwhether the word "they" at the beginning ofthe second sentence ofER 608(b)-identifyingthe things that can be inquired into on cross-examination-means, "[s]pecific instances ofconduct

... for the 9No. 32318-8-III State v. McBride

purposes ofattacking

... credibility," or means, instead, "[s]pecific instances ofconduct

.

. . for the purposes ofattacking

... credibility, other than conviction of crime asprovided in rule 609." (Emphasis added.) Federal courts have addressedthis issue in cases applying the parallel federal rules. In a decision representative ofthe weight offederal authority, UnitedStates v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009), the court heldthat "Rule 608(b) permits impeachment only by specific acts thathave notresulted in a criminal conviction,"while "[e]videncerelating to impeachmentby way ofcriminal conviction is treated exclusively underRule 609." (Emphasis added.) In arriving at this conclusion, the Osazuwa courtbeganby notingthat "the interplay between Rules 608 and 609 is complex." 564 F.3d at 1173. 

### It then turned to the text ofRule 608, whichthe court concluded was subjectto tworeasonable interpretations: Defendant argues that Rule 608 exempts from its coverage a witness' prior criminal convictions and instead delegates to Rule 609 any questions relating to such convictions. The government advances a different construction ofRule 608, arguing thatthe rule is concerned solely with the admissibility ofextrinsic evidence. In the government's view, Rule 608 provides only that, while specific instances ofthe conduct ofa witness may notbe provedby extrinsic evidence, extrinsic evidence is admissible to prove criminal convictions.

10No. 32318-8-III State v. McBride


### Id. at 1173. Because the court found that both constructions were plausible and the rule

was therefore ambiguous, it turned to the legislative history surrounding the rule's adoption, explainingthatthe advisory notes upon adoption ofthe rule provide: "[p]articular instances ofconduct, though not the subject of criminal conviction, may be inquired into on cross-examination" and "[c]onviction of crime as a technique ofimpeachment is treated in detail in Rule 609, and here is merely recognizedas an exception to the general rule excluding evidence ofspecific incidents for impeachmentpurposes." [Fed. R. Evid.] 608 advisory committee's notes (1972) (emphases added), Those comments suggest that evidence relating to convictions falls within the exclusivepurview ofRule 609. 

### Id. at 1174 (first and second alterations in original). The courtpointed out that the Eighth, Fifth, and Tenth Circuit Courts ofAppeals had also adopted the defendant's construction. Id. (citing UnitedStates v. Lightfoot, 483 F.3d 876 (8th Cir. 2007); United States v. Parker, 133 F.3d 322 (5th Cir. 1998); and Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir. 1991)). The Ninth Circuit also recognized "the unfairness that would result ifevidence relating to a conviction is prohibitedby Rule 609 but admitted through the 'back door' of Rule 608." Id. at 1174 (citing Donald H. Zeigler, HarmonizingRules 609 and608(b) of the FederalRules of Evidence, 2003 UTAHL. REV. 635, 677 (2003) ("Because the misconduct that forms the basis ofthe impeachment is exactly the same, it plainly seems unfair to forbid impeachmentunder Rule 609(a)(l) but allow the defendant to be questioned about the underlying acts under Rule 608(b).")). It further explainedthat

11No. 32318-8-III State v. McBride [u]nder the government's interpretation, a bad actresulting in a conviction would be, in a sense, countedtwice-onceby presenting the bad act itself and once by presenting the convictionthat flowed from it. The risk of unfairprejudice orundue emphasis is the reason why Rule 609 and its related case law carefully guide the admission ofprior convictions and their underlying facts. Id. at 1174-75. It is well settled thatwhile federal case law interpreting a federal rule that is equivalentto a Washington rule may bepersuasive, it is not binding. State v. Brown, 113 Wn.2d 520, 547-48, 782 P.2d 906 (1989); see also State v. O'Dell, 70 Wn. App. 560, 565, 854 P.2d 1096 (1993). Washington courts "approach ourrules as though they had been drafted by the Legislature and give the words their ordinary meaning." Brown, 113 Wn.2d at 551-52. But federal case law applying Federal Rule ofEvidence (Fed. R. Evid.) 608(b) is instructive given that the federal rule and our own are substantially the

same.3 See State v. Wilson, 60 Wn. App. 887, 892, 808 P.2d 754 (1991) (looking to

3 Federal Rule ofEvidence 608(b) states: (b) Specific Instances ofConduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in orderto attack or supportthe witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into ifthey are probative ofthe character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose characterthe witness being crossexamined has testified about.

12No. 32318-8-III State v. McBride

federal case law as persuasive authority in interpreting ER 608(b) because "[t]his rule is identical to Fed. R. Evid. 608(b)"). While it appears that many states have adopted the federal approach,4 at least seven-the states ofKentucky, Idaho, California, Colorado, Connecticut, Montana, and Nevada-haveheld that theirparallel rules can be used even where the specific conduct results in a criminal conviction.5 But in each ofthesejurisdictions, the state counterpart to Fed. R. Evid. 609 differs from the federal rule in a significant way: it permits use ofa prior convictionto show a witness's untruthfulness only ifthe prior conviction was a felony, and does not allow proofthat the witness was convicted ofa misdemeanor, even ifthe crime involved dishonesty. 6 As the Kentucky Supreme Court observed inAllen,

4See, e.g., State v. Stricklin, 290 Neb. 542, 561, 861 N.W.2d 367 (2015) ("Rule 608(2) permits questioning during cross-examination only on specific instances of conductnot resulting in a criminal conviction."). 5SeeAllen v. Commonwealth, 395 S.W.3d 451, 463-64 (Ky. 2013) ("Nothing in the language of[Ky. R. Evid.] 608 suggests that so long as a proponent does not attempt to prove the conduct involved in a misdemeanor conviction by extrinsic evidence, simple inquiry about that conduct should be unacceptable."); see also State v. Bergerud, 155 Idaho 705, 711, 316 P.3d 117 (Ct. App. 2013); People v. Chatman, 38 Cal. 4th 344, 133 P.3d 534, 556, 42 Cal. Rptr. 3d 621 (2006); People v. Drake, 748 P.2d 1237, 1246 (Colo. 1988); State v. Hall, 120 Conn. App. 191, 991 A.2d 598, 604 (2010); State v. Martin, 279 Mont. 185, 926 P.2d 1380, 1389 (1996); Butler v. State, 120 Nev. 879, 102 P.3d 71, 80 (2004). 6 See Allen, 395 S.W.3d at 463-64 ("Unlike the federal rule, [Ky. R. Evid.] 609 does not allow proofthat the witness was convicted ofa non-felony (usually a misdemeanor) involving dishonesty orreflecting on character for dishonesty."); Bergerud, 155 Idaho at 711 (noting that the federal rule "differs in a significant way from [Idaho R. Evid.] 609," which "permits use ofa prior conviction to show a witness's 13No. 32318-8-III State v. McBride

"the inability to inquire in any way about misdemeanor convictions reflecting on dishonesty illustrates a substantial hole in the present [Ky. R. Evid.] 608-609 regime." Allen v. Commonwealth, 395 S.W.3d 451, 463 (Ky. 2013). The court explained that under this system, "bar[ ring] any evidence ofmisdemeanor conductthat led to a conviction-evenwhen it conclusively proves dishonest conduct-[ undermines] the ability to effectively cross-examine a witness." Id. at 464. Notwithstandingthis federal authority, the State suggests that our Supreme Court found both ER608(b) and ER609 applicable to prior crimes resulting in conviction in State v. Clark, 143 Wn.2d 731, 767, 24 P.3d 1006 (2001). In that case, the trial court had refused to allow the defense to impeach a State witness underER 608(b) with conduct underlying his prior convictions, where the witness had already been impeachedunder ER609 with the convictions themselves. On appeal, the defendant claimed the conduct

was further evidence ofthe witness's truthfulness and would have assisted thejury in assessing his credibility. The Supreme Court held that the trial court did not abuse its discretion in excluding the impeachment evidence, explaining that "[f]ailing to allow cross-examination ofa state's witness under ER608(b) is an abuse ofdiscretion ifthe witness is crucial and the alleged misconduct constitutes the only available
untruthfulness only ifthe prior conviction was a felony"); see also CAL. Evro. CODE § 788; COLO. REV. STAT.§ 13-90-101; CONN. EVID. CODE§ 6-7; IDAHO R. Evro. 609(a); KY. R. EVID. 609(a); NEV. REV. STAT.§ 50.095; MONT. R. EVID. 609; Olson v. Little, 604 F. App'x 387, 397 n.5 (6th Cir. 2015). 14No. 32318-8-III State v. McBride impeachment." Idat 766. Since the credibility ofthe witness in Clarkhad already been challenged by admitting the convictions, "the misconduct underlying some ofthose convictions would not be any more probative." Id. at 767. Elsewhere, however, the Supreme Court did state that the trialjudge "couldhave let prior misconduct in under ER 608(b) but chose not to." Id. The State is correct in arguing that Clarktreats both rules as potentially applying to a conviction-butno one made the argument in Clarkthat, fairly read and considering historical intent, the rules are mutually exclusive. Accordingly, the court's language implying that ER 608(b) could be a basis for cross-examining a witness about conduct underlying a conviction is dicta. In this case, the ability to impeach Ms. Baird about her conviction for false statement with the limited information admissible under ER609(a) would have satisfied the State's legitimate interest in pointing out this prior instance ofdishonesty. By crossexamining Ms. Baird about the circumstances ofthe crime, the State was able to tar Mr. McBride as well: it succeeded in bringingto thejury's attention the fact thatMr. McBride also lied about his name to an officer. Notwithstandingthe dicta in Clark, we adopt the reasoning ofthe Ninth Circuit in Osazuwa and hold that awitness may not be questioned regarding facts leading to a prior conviction underER 608(b), since doing so would constitute an end-run around ER 609(a)'sprohibition onpresenting collateral evidence. ER 609's relative restrictiveness 15No. 32318-8-III State v. McBride

can be explained as based on the fact that proofa witness has been convicted ofa felony

or a crime ofdishonesty has an immediate, clear, and indisputable negative import. Cross-examination under ER608(b), by contrast, amounts to an implicit accusation that a witness may deny or explain away. See Osazuwa, 564 F.3d at 1174 ("evidence ofa prior conviction for dishonest acts canbe far more prejudicial to a defendant than evidence of dishonest acts that have notbeen held to violate the law"). A trial court's discretionary decisions regarding the admissibility ofprior convictions under ER 609 will only be reversed "wherethe record reflects a clear abuse ofdiscretion." State v. Anderson, 31 Wn. App. 352, 354, 641 P.2d 728 (1982). In exercising its discretion whetherto admit evidence, a trial court abuses its discretion ifits decision is contrary to law. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). The trial court abused its discretion in overruling the defense objection. The State argues that the trial court's error was harmless. We need not examine whether it was, since we find otherreversible error as well as cumulative error, which we discuss hereafter. Reversed and remanded. The remainder ofthis opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished decisions. We provide additional background relevant to the remaining issues. 16

### No. 32318-8-111 State v. McBride

When interviewed by Deputy Jordan, Mr. Himes confessedto a few other crimes, including the theft ofthe four-wheeler and the Kubota from Mr. Huber, and breaking into

a second storage unit. He told police Mr. McBride did not participate in either ofthose

cnmes. Based on the informationprovided by Mr. Himes, police contacted Mr. McBride at his house and asked him about the stolen items. Mr. McBride led them to his own shed, where he had a metal-frame camouflage backpack matching the description ofone Mr. Himes had described as having been stolen from the Wagner storage unit. Mr. Wagner later identified it as his own. Mr. McBride told deputies that Mr. Himes had left the backpack in a carparked in his driveway. The officers also searched Mr. McBride's bedroom, where they found a green bag and a black duffel bagwith clothing inside, both ofwhich Mr. Wagner later identified as items stolen from his storage unit. The green bag had Mr. Wagner's name on it, although the name was blacked out with a marker. According to Deputy Jordan, Mr. McBride initially denied having any knowledge ofthe stolen motorcycles or the Tekoa storage unit. However, when Deputy Jordan asked ifhe would find Mr. McBride's fingerprints on motorcycles the officers had recovered, Mr. McBride stated he had helped Mr. Himes work on a motorcycle. Similarly, Deputy Jordan testified that when he asked ifhewould see Mr. McBride on
camera nearthe storage unit in Tekoa, Mr. McBride responded that he and Mr. Himes



### 17No. 32318-8-III State v. McBride

had walked bythe Wagner storage unit while going to retrieve a gas can from Mr. Himes's storage unit. Attrial, Mr. Himes testified that following the burglary ofthe Wagner storage unit, Mr. McBride decided to keep a few items including a green "[a]rmy style backpack" and "some stuffin a big duffel bag." RP at 97. He identified items later found at Mr. McBride's residence as ones stolen from Mr. Wagner's storage unit. Ms. Evans claimed at trial to recognize the metal-frame backpack found in Mr. McBride's shed as one ofthe items taken during the Wagnerburglary, although she was not sure about other property found in Mr. McBride's possession. Mr. Himes told thejury aboutMr. McBride's alleged assistance with the theft of Mr. Petrovich's larger motorcycle andthat he, Mr. Rower, and Mr. McBride then took the motorcycle to Lance Garrett's home. In cross-examining Mr. Himes, Mr. McBride's lawyer obtained Mr. Himes's concession thathe "probably" first told Deputy Jordan thathe alone had committedthe burglary ofthe Wagner shed. RP at 107. Mr. Himes testified that he "[didn't] remember exactly" ifhe had said anything about Mr. McBride being involved. 

### Id. Mr. Himes concededthat after he was offered the plea deal, he gave a lengthy recorded statement in which he initially provided deputies with an incorrect date for the burglary ofthe Wagner storage unit, explaining that "Iwas pretty messed up." RP at 109-10. He admittedthat in the lengthy recorded statementhe lied about committing the Huberburglary by himself 18No. 32318-8-III State v. McBride

and that, in fact, Ms. Evans hadbeen involved; in fact, she had located thatburglary target. He admitted he had committed the burglaries and soldthe stolenproperty to buy methamphetamine, because it was "hard for [him] to get by without dope." RP at 119. Ms. Baird testified for the defense that she had seen Mr. Himes handthe backpack and duffel bag later identified as property stolen from Mr. Wagnerto Mr. McBride one December afternoon, when Mr. Himes and Ms. Evans were dropping him offafter he had assisted Ms. Evans with some cartrouble. According to her, Mr. Himes andMs. Evans said they were going grocery shopping and asked ifthey could leave the bags with Mr. McBride. She also testified that Mr. Himes andMs. Evans had access to the outer buildings at Mr. McBride's place, although she admittedthat atthe time ofthe December burglaries the shed was locked with a key, which was in Mr. McBride's possession. Finally, she testified thatMr. Himes and Mr. Garrett had brought a motorcycle to her home once, asking ifMr. McBride could help them get it started. The State called Deputy Jordan and questioned him abouthis interviews ofMr. McBride andtrial witnesses. The deputy testified that in his December interview ofMs. Baird in which she told him Mr. Himes and Mr. Rower were involved in the crimes, she also told himto "lookatBill McBride," because "hehad been gone a lot lately at night." RP at 240. Deputy Jordan testified that Ms. Baird was upset with Mr. McBride atthe time, telling the deputy that she suspected Mr. McBride ofcheating on her. Ms. Baird

19No. 32318-8-III State v. McBride

had unequivocally denied evertelling Deputy Jordan that Mr. McBride might have participated in the motorcycle theft. Attrial, DeputyJordan testified that consistent with his plea agreement, Mr. Himes had provided information as to where various stolen items could be found, including atthe homes ofTrevor Shelton and Kim Fuchs. He explainedthathe was able to corroborate "[a]lmost everything" Mr. Himes told him by verifying that the stolen property he described was located at those residences. RP at 187. Theprosecutorthen asked Deputy Jordan whetherhe believed Mr. Himes had given him "real truthful informationregarding the crimes thathadhappened and the people involved," to which the officer responded, "Yes, I did." 

### Id. During closing argument, the prosecutor made several statements relating to the truthfulness ofvarious witnesses' testimony. Ms. Evans had not been a particularly helpful State witness, which he conceded; in her direct examination he had confronted Ms. Evans with being "abit evasive today." RP at 146. In closing argument, he told the Jury: [L]et's talk a little bit about Ms. Evans' testimony. Was it completely forthcoming? Absolutely not. I don'tthink anyone here would think so. RP at 265. Laterhe added, "Ms. Evans is very reluctant to spill her guts and to tell the whole story." RP at 271.

20No. 32318-8-111 State v. McBride

But addressing otherwitnesses, he emphasized Mr. Himes's truthfulness. Those statements are challenged as misconduct and we address them in more detail below. He characterized Mr. McBride and Ms. Baird as untruthful, in argument that we also discuss hereafter. Mr. McBride's lawyer did not objectto the prosecutor's statements about the witnesses' truthfulness. Prosecutorial misconduct Mr. McBride contends that the prosecutor committed misconductby eliciting Deputy Jordan's opinion as to the truthfulness ofMr. Himes and by commenting on the credibility ofMr. McBride and vouching for other witnesses during closing argument. To prevail on a claim ofprosecutorial misconduct, a defendant must establish boththe impropriety ofthe prosecutor's comments and theirprejudicial effect. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Even ifa prosecutor's comments are improper, the defense may waive a prosecutorial misconduct claimby failing to object to the remark and request a curative instruction. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). Because defense counsel never objected to any ofthe alleged instances ofmisconduct nor asked for a curative instruction, Mr. McBride must show that the conduct was "so flagrant or ill intentioned that it evinces an enduring and resulting prejudice" that could not have been curedby an instruction to thejury. Id.; State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994) ("Reversal is not required ifthe error could have been obviated by a curative 21No. 32318-8-III State v. McBride

instruction which the defense did notrequest."); see also State v. Jones, 117 Wn. App. 89, 90-91, 68 P.3d 1153 (2003) (quoting State v. Suarez-Bravo, 72 Wn. App. 359, 367, 864 P.2d 426 (1994)). Allegedinstances of prosecutorial misconduct Mr. McBride first contends that the prosecutor committed misconductby asking Deputy Jordan ifhebelievedMr. Himes had providedhim with truthful information. Given the question and the answer, the deputy testified not only that he hadbeen able to corroborate informationprovided by Mr. Himes but also that he believed Mr. Himes had given him "real truthful information" about the crimes and the people involved: [Prosecutor]: As far as the things that Mr. Himes told you, were you able to verify a lot ofit? [Deputy Jordan]: Yes. Almost everything. [Prosecutor]: Almost everything. Okay. Didyou believe [Himes 

## Jhadgivenyou- real truthful information regarding the crimes that hadhappenedandthepeople involved? [Deputy Jordan]: Yes, I did. [Prosecutor]: Okay. Who

- Who did you learn was involved through your investigation? [Deputy Jordan]: I learned that Kenneth Himes, William McBride and Sheila Evans were involved. RP at 187 (emphasis added). The State "does not dispute that the prosecutor committed misconduct by eliciting the testimony from Deputy Jordan that Mr. Himes had provided 'real truthful information,"' conceding, "[t]his should not have been done." Br. ofResp't at 12. We accept the State's concession, which is well taken. "Improper opiniontestimony violates 22No. 32318-8-III State v. McBride

a defendant's [constitutional] right to ajury trial [by] invad[ing] the fact-finding province ofthejury." State v. Thach, 126 Wn. App. 297, 312, 106 P.3d 782 (2005) (citing State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003)). "Testimony from a law enforcement officerregarding the veracity ofanother witness may be especially prejudicial because an officer's testimony often carries a special aura ofreliability." State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007); State v. Rafay, 168 Wn. App. 734, 805-06, 285 P.3d 83 (2012). Turning to closing argument, Mr. McBride first complains that the prosecutor vouched for the credibility ofMs. Baird's alleged statementto Deputy Jordan that he ought to "look at Bill McBride" in connection with the motorcycle thefts-a statement that Ms. Baird denied making. In arguing to thejurythat Ms. Baird had in fact implicated Mr. McBride, the prosecutor argued that she had giventhe deputy Mr. McBride's name, and [S]he's angry at him and she's throwing his name out there because she knows he's involved. But is she a little reluctant? Sure. They've been dating for seven years and presumably are again at this point, and she knew that at the time. But she was upset with him andshe toldthem the truth. RP at 269 (emphasis added). Mr. McBride next complains that, in addressing Deputy Jordan's and Ms. Baird's conflicting versions ofMs. Baird's interview, the prosecutor reminded thejury that the

23No. 32318-8-111 State v. McBride deputy told them Ms. Baird's version was "notthe truth." RP at 288. He relies on the following argument: And Amy Baird denied on the standyesterday that she evertold Dep. Jordan that Bill McBride was involved. ButDep. Jordan toldyou that's notthe truth; Amy Bairdtold him, "Yeah, and maybe Bill." Id. (emphasis added). Mr. McBride next argues that during closing argument, the prosecutorvouched twice for his most critical witness, Mr. Himes, and also told thejurythat Mr. McBride, who had not testified at trial, had lied to police during the investigation. The first example ofvouching for Mr. Himes was argument in which the prosecutor pointed out that Mr. Himes had admitted to his involvement in the rash of burglaries "[a]ndhonestly implicates Ms. Evans, and Mr. McBride, andtheirparts in it

as well." RP at 268 (emphasis added). Later, the prosecutorresponded to defense attacks on Mr. Himes's credibility by telling thejury in rebuttal: [Himes] doesn't tell lies that can'tbe corroborated. He tells whatactually happenedand the police are able to verify some ofit. RP at 294 (emphasis added). He then added: Mr. McBride does lie when confronted by Dep. Jordan. Id. (emphasis added).

24No. 32318-8-III State v. McBride Finally, in what Mr. McBride suggests (and we agree) is the mostproblematic part ofclosing argument, the prosecutortold thejury: Is Ken Himes an honest man? No; he's a thief. Butwas he honest about what he did? Yes. Was he honest about those who helped him? Yes
.... Is [Mr. Himes] telling the truth? Yeah. He's telling the truth about everything that happened. RP at 295-96. "Itis misconduct for a prosecutorto state a personal beliefas to the credibility ofa witness." State v. Warren, 165 Wn.2d 17, 30, 195 P.3d 940 (2008). Because prosecutors have "widelatitude to argue reasonable inferences from the facts concerning witness credibility," 

### id., "[p]rejudicial error does not occur until suchtime as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing

apersonal opinion." State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983), overruled inparton othergrounds byState v. Davis, 101 Wn.2d 654, 658-59, 682 P.2d 883 (1984). The State contends that in making each ofthese statements, the prosecutor was merely drawing inferences from the facts presented at trial. Itemphasizes that the prosecutor never stated, "Ibelieve" or "I think" or "I know" that certain witnesses were telling the truth or lying. For support, the State relies primarily on Warren, and State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995). Butthose cases are distinguishable.

25No. 32318-8-III State v. McBride

In Warren, the courtheld that the prosecutor did not commit misconductby arguing during closing that the details in the witness's testimony gave it a "badge of truth" and the "ring oftruth." Warren, 165 Wn.2d at 30. First, the court noted that defense counsel had "clearly attacked" the witness's credibility during opening statements and cross-examination, and that the prosecutor "respondedby arguing that the level ofdetail in [her] testimony raises a reasonable inference that she was telling the truth." 

### Id. The courtnotedthat "there was no explicit statement ofpersonal opinion." 

### Id. Similarly, the prosecutor in Brett did not commit misconductby arguing that "one reason" thejurymight wantto believe one witness overthe other was that at the time the events to which she testified were occurring, she "was watching her husband of33 years being blown away by a .410 shotgun. And maybe that's the kind ofscenario ofevents that she's going to remember fairly well for the rest ofher life." Brett, 126 Wn.2d at 175. The court concluded that by offering a reason, the prosecutor was not making a statement ofpersonal belief. Unlike in Warren andBrett, the prosecutor in this case did not frame his arguments in terms ofreasonable inferences thejury could draw from the facts. He did not argue that facts gave witnesses' testimony a "ring oftruth" orprovided "onereason" thejury mightwantto believe them. This case is more like State v. Ramos, 164 Wn. App. 327, 341 n.4, 263 P.3d 1268 (2011), in which the prosecutor improperly vouched 26No. 32318-8-111 State v. McBride

for the credibility ofpolice witnesses by stating, "[T]he truth ofthe matter is [the police witnesses] werejusttelling you what they saw and they are notbeing anything less than 100 percent candid." (Alteration in original) (internal quotation marks omitted). When aprosecutortells thejurythat "the defendant lied" and "ourkey State witness told you the truth," there is a clear implication that the prosecutor is expressing his or herpersonal belief. It is unnecessary to say, "Ibelieve," or "I think," or "Iknow." In determining whetherprosecutorial misconduct was so flagrant and ill intentioned that waiver will not be found, we focus "less on whetherthe prosecutor's misconduct was flagrant or ill intentioned and more on whetherthe resulting prejudice could have been cured." State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012). "Underthis heightened standard, the defendant must show that (1) 'no curative instruction would have obviated any prejudicial effect on thejury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood ofaffecting thejury verdict.'" Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). The State's case against Mr. McBride turned almost entirely on the credibilityofMr. Himes: a methamphetamine user who had provided inconsistent information and who

was testifying against Mr. McBride pursuantto a favorable pleabargain. When the statements in closing argument are considered in their entirety together with the eliciting ofDeputy Jordan's opinionthat Mr. Himes provided truthful information on Mr.

27No. 32318-8-III State v. McBride

McBride's involvement in the crimes, we conclude that this is the rare case in which the heightened standard is met. Ineffective assistance of counsel Mr. McBride also argues that he received ineffective assistance ofcounsel when his lawyer failed to objectto Deputy Jordan's improper opinion testimony and the prosecutor's improper vouching for the credibility ofthe State's witnesses and comment that Mr. McBride lied. "Aclaim ofineffective assistance ofcounsel presents a mixed question offact and law reviewed de novo." State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim ofineffective assistance ofcounsel, the defendant is required to show both (1) "that defense counsel's conduct was deficient, i.e., that it fell below an objective standard ofreasonableness," and (2) "thatthe deficient performance resulted in prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome ofthe proceeding would have differed." State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing Stricklandv. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Given our conclusion that the prosecutor improperly elicited opinion testimony and vouched for the credibility ofseveral witnesses, defense counsel was deficient in failing to object. And here again, because this was a case that depended upon thejury's assessment ofthe credibility ofMr. Himes versus that ofMs. Baird, there is a reasonable 28 

# lNo. 32318-8-111 State v. McBride possibility that, but for the deficient conduct, the outcome ofthe proceeding wouldhave differed. Cumulative error Finally, "[t]he cumulative error doctrine applies when several triai errors occurred and none alone warrants reversal, butthe combined errors effectively denied the defendant a fair trial." State v. Jackson, 150 Wn. App. 877, 889, 209 P.3d 553 (2009). "The defendant bears the burden ofproving an accumulation oferror ofsufficient magnitude thatretrial is necessary." State v. Yarbrough, 151 Wn. App. 66, 98, 210 P.3d 1029 (2009) (citingIn re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994)). Had we not concluded that Mr. McBride has demonstrated reversible error as a result ofprosecutorial misconduct and ineffective assistance ofcounsel, then, on the basis ofthe additional error in admitting collateral evidence ofthe crime committedby Ms. Baird, we would find cumulative error and reverse onthat basis. Reversed and remanded.

WE CONCUR: 

### Fe~l(f Lawrence-Berrey, J. 

## j 29