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

v. ) No. 73461-0-1 ) DIVISION ONE cr m -
en .--£>

JACOB TAYLOR HARRISON, ) UNPUBLISHED 

### OPINIO^? ^2 Appellant. ) FILED: August 15, 2016 Becker, J. — Jacob Harrison appeals his convictions, arguing in 

### partthat he was deprived of a fair trial by prosecutorial misconduct in closing argumentto which he did not object. The prosecutor's argument 

### that "thejudge is telling you" that DNA1 evidence is not required to convict
was potentially misleading and therefore improper. However, inthe context ofthe entire argument, the argumentwas not incurably prejudicial. FACTS Two assailants robbed Shana Morcom and her boyfriend Brett 

### Losey at gunpoint in a motel room in Everett. Based on this incident, the State charged Jacob Harrison withrobbery inthe firstdegree, possession of a controlled substance, and unlawful possession of a firearm inthe first 

### degree. According to Morcom, who testified at Harrison's trial, the robbers
1Deoxyribonucleic acid.No. 73461-0-1/2 

### demanded that she and Losey place theirvaluables on the bed and then ordered them to enterthe bathroom and close the door. As soon as they heard the motel room door shut, Morcom and Losey wentto the motel office and the clerk called 911. The clerk provided some basic information to the dispatch operator and then gave the telephone to Losey. Losey referred to the attackers as "they," but he identified only one person by
name and provided a description ofthat person that did not match Harrison's physical characteristics. Losey said the firearm was possibly a ".38." According to Losey and Morcom, the men took several items 

### including Losey's wallet, Morcom's cell phone, and a sparkly pink lanyard with keys. Police officers came to the motel. Morcom told the police that the 

### attacker who wielded the gun was an acquaintance she knewas "J.T."2 Morcom and Losey described J.T. They described the second suspect as
a white male approximately 30 years old with a shaved head and a 

### teardrop tattoo near his lefteye, wearing a black shirt and camouflage shorts. This description matched Harrison. 

### The policetracked Morcom's cellphone to the nearby residence of Amber Markand Ryan Kelley. Meanwhile, Harrison arrived unannounced at Mark's home. He was carrying a cloth grocery bag. Mark noticed that



### 2Several days afterthe robbery, Jason T. Garcia, who is known as "J.T.,"was arrested on outstanding warrants. He had grocery store debit 

### cards on his person inLosey's and Morcom's names. Coincidentally, Jacob T. Harrison and Jason T. Garcia share the same initials, butthere was no evidence Harrison has the nickname "J.T."No. 73461-0-1/3 

### Harrison was holding a cell phone that she had not seen before and was 

### trying to turn it on. Harrison also had a man's wallet. Harrison did not respond when Markasked himwhere these items came from, and she assumed they were stolen. 

### Harrison asked to borrow a pair of Kelley's pants. He wentto the 

### garage to change. A few minutes later, several police officers arrived. Upon seeing police vehicles, Kelley told Harrison that ifthe police were there because ofsomething he had done, he needed to go outside and 

### handle it. Harrison appeared to panic and responded, "Tm screwed
then.'" 

### Harrison leftthe house, and the police arrested him. Harrison 

### denied participating in the robbery, but he admitted to the police that he smoked methamphetamine in the victims' motel room on the day of the robbery. A police officer brought Morcom to the scene of the arrest. Morcom said she was 95 percentcertain Harrison was the person who committed the robbery with J.T. By the time of trial, Morcomwas no 

### longer positive that J.T. was involved. Shetestified that shewas using 

### drugs at the time of the incidentwhich affected hermemory and amutual friend had told herthatJ.T. was incapable ofthe behavior. Morcom 

### recalledmaking statements to the police on the day of the robbery, but she testified that she independently remembered little aboutthe incident. Ina search of Mark's residence, the police found a pair of 

### camouflage shorts inthe garage. Also inthe garage, theyfound a pinkNo. 73461-0-1/4 lanyard with keys, a metal box containing a .38 caliberfirearm, a plastic 

### bag containing heroin and Morcom's cell phone. Morcom identified the lanyard and cell phone as hers and the firearm as the one used inthe robbery. According to Mark, inthe weeks before the robbery, Harrison wanted to and finally did acquire a .38 caliberfirearm. DNA evidence taken from the motel room matched the DNA profile ofJ.T. and an unknown female contributor. None ofthe results matched Harrison's DNA profile, and the police did not submit any items from Mark's residence for DNAtesting. 

### Following a six-daytrial, thejury found Harrison guiltyas charged of first degree robbery, unlawful possession of a controlled substance, and unlawful possession of a firearm inthe first degree. With respectto the 

### robbery and drug charges, thejury also found that Harrison or an accomplice was armed with a firearm. Harrison appeals. ADMISSION OF 911 CALL 

### Harrison argues thatthe courtviolated his right to confront witnesses by admitting Losey's statements to the 911 operatorbecause 

### Losey did not testify at trial and there was no prior opportunity forcrossexamination. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 

### Before trial, the parties stipulated to the admission ofthe recorded 911 call. The defense stated its intentto admit the evidence in its case inNo. 73461-0-1/5 

### chiefifthe State chose not to do so. Based on the stipulation, and after listening to the recording, the court admitted the exhibit. Atthe outset of trial, both sides were aware that Losey was increasingly reluctantto testify. As the trial progressed, italso became apparentthat he might be unavailable to testify due to a series ofhealthrelated issues. On the second day of trial, having been instructed to appear, Losey called to reportthat he was inthe hospital following an asthma attack. On the third day, the prosecutor informed the courtthat Losey would not be released for a couple ofdays. Itwas not clearthat Losey would be able to testify even ifreleased, due to his severe symptoms. The prosecutor suggested thatthe court recess for a few days or proceed without Losey. The defense confirmed that ithad no objection to either proposal and that the 911 call had already been admitted by stipulation. Defense counsel 

### stated that ifLosey did not testify, the defense would agree to admit some of Losey's statements to the police. 

### The next day, Friday, Losey refused to leave the hospital although he had been medically cleared for discharge. The court authorized the issuance of a bench warrant, and the prosecutoragreed to arrange for 

### Losey to be transported to courtto testify laterthat day. On the way to the court, the police officer, the victim advocate, and Losey were involved in a collision and were taken to the hospital for assessment and treatment. The court recessed until Monday.No. 73461-0-1/6 

### On Monday morning, the State informed the courtthat it would proceed without Losey's testimony. Losey had been released from the hospital on Friday, but he was traumatized, in pain, and medicated. The prosecutor proposed playing the 911 tape for thejury and then resting its

case. At this point, Harrison's counsel asked to withdraw the stipulation to the admission ofthe recorded 911 call. Counsel stated that the vehicle accident was an "act of God" thatwarranted revisiting the admission ofthe evidence. Counsel asserted that the stipulation was based on the expectation thatthe defense would have the opportunity to cross-examine Losey. Counsel argued that the statements were not excited utterances and were therefore inadmissible hearsay, and that ifLosey did not testify, admitting his statements would violate his right to confrontwitnesses. The court offered to authorize Losey's arrest so that his competency to testify could be assessed. Harrison declined. After listening to the recorded call again, the court determined that the statements were excited utterances and admission would not violate Harrison's right to confrontwitnesses. The court also ruled that Losey's unavailability did not provide a basis to allow the defense to withdraw its unconditional stipulation or to reconsiderthe decision to admitthe evidence. The court observed that the evidence was admitted the previous week, the stipulation was not conditioned on Losey's testimony, and that while the State hoped that Losey would testify, itwas never aNo. 73461-0-1/7 

### certaintythat he would do so. The court noted the importance for litigants to be able to rely on pretrial rulings in orderto prepare and try cases. 

### After informing thejury that Losey was "currently unavailable" to testify, the court played the 911 tape for thejury. Harrison argues that Losey's statements were testimonial because he was reporting a completed robbery and the primary purpose ofthe call
was notto assist in an ongoing emergency. See Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Harrison's argument ignores the fact that the court admitted the evidence upon his stipulation to admissibility. Bythat stipulation, he waived any claim of a confrontation clause violation. Harrison assumes that when his counsel belatedly indicated that she no longer agreed with the stipulation, the court
was required to reconsiderthe admission ofthe evidence. Although the
court indicated that it would have found the statements contained in the 911 call to be admissible under an exception to the hearsay rule and 

### underCrawford, this alternative ruling was superfluous.3 The court's denial ofthe requestto withdraw the stipulation and revisit its priorruling

was dispositive. We review a trial court's admission of evidence for an abuse of discretion. State v. Bradford. 175 Wn. App. 912, 927, 308 P.3d 736


### 3The trial court's oral ruling appears to conflate the analysis of whether the statements were excited utterances and whether the admission amounted to a confrontation clause violation. Statements 

### falling within an applicable exception to the hearsay rule may still constitute testimonial hearsay that violates a defendant's rights underthe confrontation clause. Davis, 547 U.S. at 821.No. 73461-0-1/8 (2013), review denied, 179Wn.2d 1010 (2014). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Bradford, 175 Wn. App. at 927. Stipulations are favored, and courts will generally enforce them unless good cause is shown to the contrary. State v. Parra, 122 Wn.2d 590, 601, 859 P.2d 1231 (1993). Specifically, a court's decision to admitevidence "where the defendant offers to stipulate" is within the discretion ofthe trial court. State v. Pirtle. 127 Wn.2d 628, 653, 904 P.2d 245 (1995), cert, denied, 518 U.S. 1026(1996). 

### Moreover, a defendant mayforfeit the right to review of a claimed 

### violation ofthe right ofconfrontation. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009); State v. 

### Schroeder, 164 Wn. App. 164, 167-68, 262 P.3d 1237(2011). Andthe 

### rightto confrontwitnesses falls into the category of rights that trial counsel
can waive as a matter of trial strategy without the defendant's personal 

### expression of waiver. Statev. O'Cain, 169 Wn. App. 228, 244-45, 279 P.3d 926 (2012) ("As withdecisions implicating trialstrategy, the decision to raise a confrontation clause objection is a determination that is reserved to the discretion ofcompetent defense counsel.") The decision notto contestthe admission ofthe 911 recording was 

### strategically sound. Losey's 911 callidentified only J.T. and provided a detailed description that did not match Harrison. IfHarrison insisted on 

### having Losey testifyin person, there was a riskthat Loseywould

8No. 73461-0-1/9 recognize him and identify him in court as the second assailant. Harrison's rejection ofthe court's offerto issue a material witness warrant to assess Losey's ability to testify further demonstrates his tactical 

### preference for Losey's 911 statements over Losey's in-person testimony. Harrison made no showing, here or below, ofgood cause as to why the courtwas required to reverse its ruling and relieve him of his previous stipulation. The court's ruling was not an abuse ofdiscretion. PROSECUTORIAL MISCONDUCT In closing argument, defense counsel highlighted the fact that while DNAevidence proved that J.T. had been inthe room where the robbery occurred, there was no physical evidence linking Harrison to the motel

room. Defense counsel identified several items that the State could have submitted for DNAtesting butdid not. Responding to this argument in rebuttal, the prosecutor reminded thejury thatwhile there was no DNAevidence to establish that Harrison

was inthe motel room, Harrison admitted to smoking methamphetamine in the room. The prosecutorthen argued at length that the law does not require DNA evidence to support a conviction and that in light ofthe circumstantial evidence, the lack of DNA evidence was ofno consequence. The prosecutor repeatedly referred to thejudge as the

source ofthe argument: But the truth about it is thatyou don't need the DNA. I'm not telling you that. Thejudge is telling you that. Instruction number 5 says, "The evidence that has been presented to you may be eitherdirect or circumstantial.No. 73461-0-1/10 

### The term 'directevidence' refers to evidence that is given by a witness who has directly perceived something at issue in this case." So, for example, maybe you had a DNAresultthat 

### came and had a witness take the stand and testify, "I observed that, reviewed the analysis. Itmatches Mr. Harrison." "The term 'circumstantial evidence' refers to evidence 

### from which, based on your common sense and experience, you may reasonably infer something that is at issue inthis case." Thejudge is telling you you do not need that DNA. Based on your common sense and experience, you may reasonably infer something at issue in this case. The prosecutorwent on to discuss some ofthe most convincing aspects ofthe evidence, such as the fact that Harrison matched the victims' description ofthe second suspect and was found shortly afterthe robbery at the same location as Morcom's cell phone and a firearm. The prosecutor continued: 

### Thejudge is telling you that circumstantial evidence, that from which you may use yourcommon sense and infer something at issue inthis case. You can inferthat he was inthat room. Itwas him. And thejudge tells you the law does not distinguish between direct and circumstantial evidence interms oftheirweight or value. The weight ofthe DNA is the same as the weight of the circumstantial evidence that you use your common sense to infer. Thejudge has told you that. One is not more—one is not necessarily more or less valuable that the other. Instruction number 5. Read that so that when you go backthere and you say, well, there's no DNA for this stuff, can Ireasonably infer, using my common sense, what I know happened here based on the facts? Yes. Thejudge has told you that you can. Evidence is eitherdirect orcircumstantial. In the eyes ofthe law, they are equal. And sometimes there are situations where circumstantial evidence may even be more reliable than direct evidence. Directevidence is something 

### observed by someone perceiving something.

10No. 73461-0-1/11

The prosecutor provided a lengthy hypothetical abouttracks inthe

snow to illustrate circumstances in which circumstantial evidence would be
more persuasive than direct evidence. The State closed by arguing that Harrison was guilty because inthis case, "the tracks lead from the motel
room to Ryan Kelley's house." 

### To prevail on a claim ofprosecutorial misconduct, Harrison must show thatthe prosecutor's conductwas both improper and prejudicial. State v. Emerv, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). But where, as here, a defendantfails to object, he is deemed to have waived any error 

### unless the reviewing court can determine that (1) no curative instruction could have cured the resulting prejudice and (2) the misconduct resulted 

### inprejudice that had a substantial likelihood of affecting thejury verdict. Emerv, 174 Wn.2d at 761. An objection is not necessary incases of 

### incurable prejudice because it is effectively a mistrial and a new trial isthe onlyand the mandatory remedy. Emerv, 174 Wn.2d at 762. When 

### reviewing a prosecutor's misconductthat was notobjected to, we "focus less on whetherthe prosecutor's misconductwas flagrant or ill intentioned and more on whetherthe resulting prejudice could have been cured." Emerv, 174 Wn.2d at 762. 

### The prosecutor's theme that the "judge is telling you" that DNA evidence is not necessary was improper. This theme should be removed unconditionally fromthe State's arsenal of rhetoric. The argumentnot-so

### subtly insinuated that thetrialjudge was an ally of the State. The

11No. 73461-0-1/12 prosecutor should have keptthe argumentfocused on the specific instructions ratherthan bringing thejudge into it. However, allegedly 

### improper comments must be reviewed inthe context ofthe entire argument, not in isolation. State v. Dhaliwal, 150Wn.2d 559, 578, 79 

### P.3d 432 (2003). Incontext, as thejury more likelyunderstood it, the 

### prosecutor's point was thatthe law as setforth inthe instructions does not require DNA, or any other specific type ofevidence, and itdoes not 

### distinguish between circumstantial and directevidence interms ofweight

or value. 

### Significantly, the prosecutor's remarks were curable. For instance, 

### in Emerv, the prosecutorcommitted misconductthrough a "fill inthe blank" 

### argumentwhich the court held could potentially have confused the jury about its role and the burden of proof. Emerv, 174Wn.2d at 759. 

### Nonetheless, the Supreme Court held that the misconduct did not require reversal because the misstatements here could have been cured by a proper 

### instruction. Ifeither [defendant] had objected attrial, the court could have properly explained thejury's role and reiterated thatthe State bears the burden ofproofand the defendant bears no burden. Emerv, 174 Wn.2d at 764. 

### This reasoning applies equally here. Atthe outsetof the case, the trial court explained to thejurythatthe court was prohibited from commenting on the evidence: 

### The law does not permit ajudge to comment on the evidence, and Iwillnot intentionally do so.

12No. 73461-0-1/13 By a comment on the evidence, Imean some expression or indication from me as to my opinion on the value ofthe evidence or the weight ofit. Ifitappears that I do comment on the evidence, you are to disregard such apparent comment entirely. The court's written instructions likewise provided: The law is contained in my instructions to you. You must disregard any remark, statement, or argumentthat is not supported by the evidence or the law in my instructions. Our state constitution prohibits a trialjudge from making a comment on the evidence. Itwould be improper for me to express, by words or conduct, my personal opinion about the value oftestimony or otherevidence. Ihave not intentionally done this. Ifitappeared to you that Ihave indicated my personal opinion in any way, eitherduring trial or in giving these instructions, you must disregard this entirely. Had Harrison objected, the trial court could have sustained the 

### objection, reiterated these instructions, and instructed thejury to disregard the improper remarks. Because the remarks were not incurably 

### prejudicial, reversal is not warranted. 

### We also reject Harrison's effort to overcome his lack ofobjection to the prosecutor's improperremarks by recharacterizing the issue as 

### whetherdefense counsel provided ineffective assistance by failing to 

### object. He has not shown that prosecutorial misconduct implicates the ineffective assistance ofcounsel doctrine. See State v. Fisher. 165 Wn.2d 

### 727, 757 n.8, 202 P.3d 937 (2009). Review underthe standards for 

### prosecutorial misconduct is sufficient to determine whetherthe prosecutor's remarks warrant reversal.

13No. 73461-0-1/14

Affirmed.

WE CONCUR: 

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