### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
In the Matter of the Personal Restraint Petition of: No. 42012

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LESTER JUAN GRIFFIN, UNPUBLISHED OPINION Petitioner.

L EE , J.

— Lester Juan Griffin was convicted of first degree burglary and first degree assault
in 2009 . This court affirmed his convictions on direct appeal in 2010 1 and then dismissed his personal restraint petition on procedural grounds in 2014

. 2 T he Supreme Court remanded Griffin’s petition for determination on its merits. 3 In his petition, Griffin raises three broad arguments. First, he asserts that his rights under Brady v. Maryland 4 were violated when his defense counsel did not receive evidence relating to investigations against the lead investigating officer for : (1) co nflicting statements made under oath in a different criminal proceeding; (2) sexual harassment and assault of a coworker; and (3) an off

duty, unauthorized investigation and arrest of a suspect. Second, he asserts that his trial counsel

1 State v. Griffin , noted at 157 Wn. App. 1001 (2010).

2 State v. Griffin , 181 Wn. App. 99, 325 P.3d 322 (2014).

3 State v. Griffin , 182 Wn.2d 1022, 349 P.3d 819 (2015).

4 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Filed Washington State Court of Appeals Division Two September 7, 2016No. 42012

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was ineffective fo r failing to: (1) adequately investigate the officer’s conduct described above; (2) impeach the testimony of the accomplice and investigating officer with a prior inconsistent statement; and (3) object to the prosecutor’s conduct during the State’s case in chief, closing, and rebuttal. Third, Griffin asserts that several instance of prosecutor ial misconduct warrant reversal of his convictions.
We grant Griffin’s petition and remand for new trial because the State failed to disclose
evidence favorable to G riffin that, in the aggregate, create a reasonable probability that the outcome of the proceedings would have been different. We also hold that Griffin’s counsel was deficient in failing to object to the prosecutor’s improper vouching during the State’s c ase in chief and there is a reasonabl e probability that prejudice resulted . Finally, we dismiss Griffin’s prosecutorial misconduct argument because he fails to establish that a curative instruction could not have obviated the prejudice.
FACTS
Lester Juan Griffin was convicted in 2009 of attempted first degree burglary, with a firearm enhancement, and first degree assault, with a firearm enhancement. His convictions precipitated from the attempted robbery, and subsequent shooting, of Gary Atkinson around midnight on May 17, 2008.
A. T HE C RIME Around midnight o n May 17, 2008, Atkin son awoke to a loud pounding on the front door of his apartment . He opened his front door partway and saw two African

- American males standing outside his door. The men wore b andanas covering their mouths, but not their noses, and both had guns pointed at him. The men shouted for Atkinson to “ [ g ] et down,” as Atkinson tried to shut theNo. 42012

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door on them. V erbatim R eport of P roceedings (VRP) at 100. Unable to shut the door, Atkinso n allowed the door to swing open and pushed his way through the two men. Outside of his apartment , Atkinson heard one say, “We’ll shoot

. W e’ll shoot.” VRP at 101, 106 , 123 . He heard two shots, and felt one of the bullets hit him in the back. Atkinson ran to his neighbor’s apartment for help. Atkinson’s neig hbor had heard the gunshots and , after Atkinson came in side , stepped outside to see two men running down the hallway towards the carport area. The neighbor then called 9 11. The first 911 call cam e in at 12:12 a.m. on May 17. Atkinson said he recognized one of his attackers as Gar r y Alexander. Atkinson said he recognized Alexander by his voice, build, eyes, nose, and t attoo under his eye. Atkinson told the responding officer that Alexander was one of his attackers, and he identified Alexander in a photo laydown 5 later at the hospital. Atkinson testified that he knew Alexander through Atkinson’s girlfriend, whom Alexander had a child with. Atkinson said that he and Alexander had spoken more th an twenty times over the prior two years, that Alexander had been to Atki nson’s home and work, and that Alexander had a “distinctive” voice. VRP at 117. Atkinson also said that his girlfriend had told him that Alexander was planning to punch Atkinson in the stomach the next time Alexander saw him

. 6

5 At a photo laydown, a witness is presented with several pictures of different people for the purpose of potentially identifying the individual who committed the witnessed act.

6 This threat is significant to Atkinson because he had had six stomach surgeries.No. 42012

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B. P RE

- T RIAL I NVESTIGATION Alexander was arrested later in the day on May 17. He was interviewed on May 18 and May 19 by lead investigator Officer Jeff r ey Wilken, of the Vancouver Police Department. In the first interview, Alexander denied involvement in the crime. In the second interview, Alexander confessed to his involvement , but named Griffin and Christopher Perkins as the two men who showed up at Atkinson’s front door. In the second interview, Alexander described the events leading up to the attempted robbery as follows [Wilken]: And what did those two [Griffin and Perkins] do? [Alexander]: Um , they (unintelligible) and then they came back and I walked . . . I wanted something to drink so I w alked to Chevron. [Wilken]: Okay. [Alexander]: Got something to drink. Well, actually, went to (unintelligible) and then left and went back, you know, (unintelligible). They got in the car, (unintelligible) I mean, I didn’t think, you know what I’m say ing, that they was going to go . . . go over there for real.
P ersonal Restraint Petition (P RP ) 7 Ex. 16, at 44. Alexander told Wilken the three then went to the Evergreen Park Apartments, near Atkinson’s apartment complex, and parked there. PRP Ex. 16,
p g. 46. Alexander said he was supposed to be the getaway driver, but had thought better of it and left Griffin and Perkins stranded at the apartments after they got out of the car. Perkins was picked up by police and went with Sergeant Michael Chylack an d another officer as they searched the area around the Evergreen Park Apartments during the day on May

7 There were several briefs filed in support of Griffin’s petition, the procedural propriety of which is not before this court. When citing to the “PRP” in this opinion, we are referring to the brief entitled “Opening Brief in Support of Amended Personal Re straint Petition.”No. 42012

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19. The officers had to abandon their search, however, because they were afraid Perkins would be

seen working with the police

. Perkins told the police where to find a glove that was used in the crime. Chylack returned that night, this time with Wilken, and Chylack found a black glove along a fence line. A d eoxyribonucleic a cid (DNA) analysis was performed on the glove. Griffin’s DNA was found on the g love, along with other unknown contributors, while Alexander and Perkins were excluded as possible contributors. After Alexander’s second interview, Alexander entered into a plea deal with the State in exchange for his testimony against Griffin. The plea agreement stated that Alexander would be given a sentence of 48 months for first degree attempted robbery in exchange for his truthful testimony against Griffin and Perkins. The plea agreement also stated that Alexander would be subject to a polygraph test at any time. The plea agreement was later admitted at trial without objection from Griffin’s trial counsel.
C. T RIAL T ESTIMONY Alexander testified that on the n ight of the attempted robbery, he and Perkins were at Griffin’s apartment when Alexander and Perkins decided to walk to a nearby Chevron convenience store for snacks. The convenience store did not take EBT cards as a form of payment, so Alexander and Perkins walked to the mini

- mart across the street. Griffin met them on the way to the mini

mart . The three were captured on the mini

- mart ’s surveillance system entering at 11:39 p.m. and leaving at 11:41 p.m. on May 16. A fter leaving the mini

- mart the three went back to Griffin’s apartment, got into Griffin’s car, and t hen the three drove back to the mini

- mart in Griffin’s car where Griffin bought a Steel Reserve beer. Security footage from the mini

- mart shows GriffinNo. 42012

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arriving at 11:54 p.m. and leaving with a silver aluminum can at 11:58 p.m. on May 16. Only Griffin co uld be seen in the later photos from the mini

- mart

. Alexander also testified that after leaving the mini

- mart, they parked at the Evergreen Park Apartments because it was further away from where the robbery would take place, and then Griffin and Perkins got out to go rob Atkinson. Alexander “lost his nerve” and drove to the apartment of
his ex

- wife, Tina Williams, so he could use her phone to call his fiancé e . VPR at 264. He said he wanted his fiancé e to help him get Griffin’s car back to Griffin’s ap artment. Marilyn Green was Griffin ’s friend and lived in the Evergreen Park Apartments. She testified that Griffin and another African

- American male arrived at her doorstep about 11:00 p.m. , or a little bit after, asking to use her phone. She could no t remember on what day this occurred. Griffin told her they had been drinking at a bar, Griffin’s car had broken down, and they needed
to call for a ride. This testimony was confirmed by Green’s daughter, who also testified at Griffin’s
trial. Wilken also testified at Griffin’s trial. He testified that Alexander’s testimony at trial was consistent with what Alexander had told him during the second interview, before Alexander had been offered a plea deal. Specifically, Wilken testified that Alexander had told him they made a second stop at the mini

- mart so that Griffin could buy a Steel Reserve beer. This testimony was admitted over objection as a prior consistent statement because, as the prosecutor argued to the judge, “This witness [Wilken] would t estify that Garry Alexander told him the exact same thing in the interview that was before the cooperation agreement was signed, so I submit it ’ s not hearsay, it’s a prior consistent statement.” VRP at 399.No. 42012

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D. B RADY R EQUEST Shortly before trial, the de fense learned that Wilken was placed on administrative leave from the Vancouver Police Department. Griffin’s trial counsel brought this to the trial court’s attention and asked for the facts related to the administrative leave to determine if they went to the “truth and veracity, which could have an effect

. . . in this case.” VRP at 87. The prosecutor responded that he did not know how the defense found out that Wilken was on administrative leave, but that he had “looked into it to find out if there was any Brady material,” and that he was “specifically advised by the chief criminal deputy” “that there was no allegation of any issues that would go to Wilken’s truth or veracity and directed me not to disclose the fact that he’s on
administrative leave to the [ d ] efense.” VRP at 88. The trial court reserved ruling until after the prosecutor had a chance to confer further with the chief deputy

. Partway through the trial, the chief deputy prosecutor gave the court a “file relating to Jeff Wilken.” VRP at 180. The trial court accepted the file under seal for an in

- camera review of its contents. After reviewing the file, the trial court found: I have reviewed the materials related to Officer Wilken’s suspension or administrative leave. It’s the Court’s o pinion after that review that the documents do not contain admissible evidence in these proceedings either for substantive or for impeachment purposes; therefore, the motion to disclose is denied.
VRP at 303.
E. W ILKEN ’ S C ONDUCT 1. Internal Affairs Investigation

- IA #00

- 38 The petition identifies three different formal complaints and subsequent internal investigations into Wilken’s prior conduct that Griffin claims should have been disclosed for hisNo. 42012

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defense. First, Griffin cites t o IA #00

- 38, which was filed by the Clark County Prosecutor’s Office

. The complaint alleged that Wilken “provid ed testimony in court that was in conflict with a search warrant affidavit he authored as well as an Order for Destruction of Hazar dous Substanc es.” PRP at Ex. 2. After an internal investigation into the complaint was conducted, the Vancouver Police Department concluded: [T] here appears to be sufficient evidence that you [Wilken] provided testimony on several occasions that contradicted other te stimony provided by you in this criminal case. Specifically, you provided testimony via several written documents authored by you (e.g., police reports, affidavit for search warrant, and Order for Destruction of Hazardous Substances) and during the course of a pre

- trial conference and a Suppression Hearing in Clark County Superior Court. Review of each of these documents, your statements during the pre

- trial conference and testimony during the Suppression Hearing revealed several inconsistencies in your t estimony. The allegation that you violated Vancouver Police Department Policy 7.13.18 Statements/False Statements is not sustained . The allegation that you v iolated Vancouver Police Department Policy 5.1 Neglect of Duty is sustained . The allegation that you violated Vancouver Police Department Polic y 5.2 Incompetence is sustained

. PRP Ex. 1.
2. Sexual Harassment and Assault Allegations Second, Griffin cites to sexual harassment and assault allegations against Wilken for conduct towards a female com munity corrections officer that was pending at the time of Griffin’s
trial. Tanis Conroy was the community corrections officer , and she wa s assigned to work on a Neighborhood Response Team with Wilken. The complaint alleged several instances of inappropr iate conduct by Wilken including placing a pair of women’s underwear on Conroy’s head during the execution of a search warrant, handcuffing her to a chair and wheeling her into the men’s locker room, and making sexual remarks towards her.No. 42012

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The Clark County Sheriff’s Office and the Prosecuting Attorney’s Office investigated the matter, and Wilken was placed on administrative leave during the investigation. As part of the investigation, Wilken was interviewed by the s heriff’s o ffice. During that interview, Wilke n made the following statement as to why he believed Conroy had initiated the complaint: My belief is Tanis got herself in a jam at McNicholas’s party with Acee. They’re [Tanis and her fiancé, Gordon, another police officer] two weeks from getting married. The car being

— the seat being forward. The

— I think there was issues going on between her and Gordon. They’re a couple weeks from getting married. Then the handcuffing thing happens, she called, she goes home, and in that week time period, it’s, as I said, I don’t know Gordon from anybody. There are cops that I work with that couldn’t figure their way out of, out of a room. They don’t know how to ask someone basic questions. Then there are cops, and I ain’t blowing my own horn, t hat are as good as me that can sit in a room and get someone that didn’t do it to say they did it. And my belief is I give Gordon any credit at all, is he had a conversation which was probably a long drawn

- out one with her, like “What the [expletive] is g oing on? You have this, you have this, you have this. You told me he handcuffed you. What other [expletive] has he done? . . .”

. . . . That’s the reason why she’s crying to people. That’s the reason why she’s all freaked out. Because I think it was a choice. It was my new husband or it was my reputation. And it was her husband.

. . . PRP Ex. 12, at 66. After reviewing the evidence, the p rosecutor’s o ffice decided not to bring charges against Wilken.
3. Internal Affairs Investigation

- IA #02

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T hird, Griffin cites to IA #02

- 33, where the Vancouver Police Department investigated Wilken for apprehending a suspect without authorization, and while off

- duty with his kids. IA
#02

- 33 involved a situation where Wilken was off

- duty and received a tip on where a suspect couldNo. 42012

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be found. Wilken proceeded, without authorization, in his personal vehicle with his minor children present , to the identified location where he found the suspect. Wilken then arrested the suspect and placed her in the back of a m arked police car that had arrived. After placing the suspect in the police car, Wilken removed the suspect’s handcuffs and left the back windows of the police car rolled down. The suspect escaped, resulting in a footrace to re

- apprehend the suspect. Bas ed on the investigation , the Vancouver Police Department found Wilken violated the Department’s policies of “Neglect of Duty,” “Duty to Report Information,” “Unauthorized Investigations,” “Chain of Command,” and “Prisoner Security”; and “[s]ufficient evide nce exists to substantiate the allegation that [Wilken] failed to exercise diligence, good judgment, and the interest of the
D epartment.” PRP Ex. 3

. In the letter of reprimand to Wilken, the chief of police also noted: First, you failed to meet reasonabl e expectations of performance while handling a case of this nature. Second, there is a sufficient history of internal affairs investigations with you as the subject of the investigation, three of which resulted in sustained policy violations for incidents in which you also failed to exercise good judgment in your duties as a police officer. Third , you have already received counseling and retraining for previous performance errors. Fourth your actions placed you and a probationary officer in a potentially harmful situation given the lack of resources available at the time you took this unauthorized action. . . . The totality of your actions in response to this situation reveal both neglect and disregard for departmental rules and regulations. PRP Ex. 3, Letter of Reprimand at 2

. F. P ROCEDURAL P OSTURE In his direct appeal to this court, Griffin argued that his constitutional right s to a speedy trial, to present a defense, to effective assistance of counsel, and to be protect ed against double jeopardy were violated. State v. Griffin , noted at 157 Wn. App. 1001 (2010). This court disagreed and affirmed his convictions in an unpublished opinion. Id. Now, Griffin argues in his personalNo. 42012

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restraint petition that he is entitled to relief for the State’s Brady violations, receiving ineffective assistance of counsel, and being subject to prosecutorial misconduct.
ANALYSIS
A

. P ERSONAL R ESTRAINT P ETITION When considering a personal restraint petition, a court may grant relief to a petitioner only if the petitioner is under an unlawful restraint, as defined by RAP 16.4(c). In re Pers. Restraint of
Yates , 177 Wn.2d 1, 16, 296 P.3d 872 (2013). The collateral relief afforded under a personal restraint petit ion is limited , and requires the petitioner to show that he was prejudiced by the alleged error of the trial court. In re Pers. Restraint of Hagler , 97 Wn.2d 818, 819, 650 P.2d 1103 (1982). There is no presumption of prejudice on collateral review. Id. at 823. The petition does not serve as a substitute for appeal; nor can the petition renew an issue that was raised and rejected on appeal, unless the interests of justice so require. 8 In re Pers. Restraint of Davis , 152 Wn.2d 647, 671, 101 P.3d 1 (2004)

. The petitioner must either make a prima facie showing of a constitutional error that , more likely than not, constitutes actual and substantial prejudice , or a nonconstitutional error that inherently constitutes a complete miscarriage of justice. In re Pers. Restraint of Stockwell , 161

8 In his direct appeal, Griffin argued that he received ineffective assistance because he had a conflict of interest with his defense counsel due to the fact that Griffin had filed a bar complaint against the defense counsel. Griffin , noted at 157 Wn. App. 1001. Here, Griffin raises different reasons for receiving ineffective assistance, one of which we hold warrants reversal. Because we may hear issues that have already been raised where the interests of justice so require, and one o f the issues already raised warrants reversal, we allow the issue. In re Pers. Restraint of Davis , 152 Wn.2d 647, 671, 101 P.3d 1 (2004); see also In re Pers. Restraint of Percer , 150 Wn.2d 41, 47, 75 P.3d 488 (2003) (holding that the court of appeals can properly review in a PRP the identical double jeopardy issue rejected on direct appea l).No. 42012

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Wn. App. 329, 334, 254 P.3d 899 (2011) , aff’d , 179 Wn.2d 588, 316 P.3d 1007 (2014) ; Hagler , 97 Wn.2d at 826; In re Pers. Restraint of Cook , 114 Wn.2d 802, 810, 812, 814, 792 P.2d 506 (1990). Without either such showing , we must dismiss the petition. Cook , 114 Wn.2d at 810, 812 ; see also In re Pers. Restraint of Hews , 99 Wn.2d 80, 88, 660 P.2d 263 (1983). However, with respect to claims of Brady violations or ineffective assistance of counsel, the prejudice element of a petition is established by showing “a reasonable probability that the outcome of the proceedings would have been different” absent the Brady violation or ineffective assistance of counsel. In re Pers. Restraint of Crace , 174 Wn.2d 835, 84 5 , 280 P.3d 110 2 (2012). The petitioner’s allegations of prejudice must present specific evidentiary support. In re Pers. Restraint of Rice , 118 Wn.2d 876, 886, 828 P.2d 1086 , cert. denied , 506 U.S. 958 (1992). Such support may come from the trial court record . “If the petitioner’s allegations are based on
matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief,” which may include affidavits
or other corroborati ve evidence. Id. Bald assertions and conclusory allegations are in sufficient support

. Id. If a petitioner makes a prima facie showing of prejudice, but the merits of his assertions cannot be determined on the record , we will remand for a hearing pursuant to RAP 16.11(a) and RAP 16.12. Hews , 99 Wn.2d at 88.
B

. B RADY V IOLATION Griffin first argues his due process rights were violated under Brady v. Maryland , 373 U.S. 83, and its progeny of cases. Griffin asserts that , u nder Brady , the State violated its duty to disclose evidence favorable to the accused by failing to turn over four types of evidence that would impeach the testimony of Wilken. The first involved the complaint, IA #00

- 38, to the Clark CountyNo. 42012

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prosecutor’s office regarding Wilken’s conflicting statements in a search warrant application, an order for destruction, and his testimony at a suppression hearing. The second was the investigative report following the claims of Wilken’s sexual harassment and assault of Tanis Conroy. The third involved the complaint , IA #02

- 33, that Wilken attempted to investigate and arrest a suspect while off

- duty. 9 We hold that there is a reasonable probability that the outcome of Griffin’s trial would have been different had evid ence relating to IA #00

- 38, the sexual harassment and assault allegations , and IA #02

- 33 been disclosed to the defense.
1. Legal Principles To establish a Brady violation, the petitioner must demonstrate the existence of each of three necessary elements: first, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;” second, “that evidence must hav e been suppressed by the State, either willfully or inadvertently;” and third, “prejudice must have ensued” such that there is a reasonable probability that the result of the proceeding would have differed had the prosecution disclosed the evidence to tria l counsel. Strickler v. Greene , 527 U.S. 263, 281

- 82, 289, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) . If a defendant fails to demonstrate any of the three elements, his Brady claim fails. Id. ; State v. Sublett , 156 Wn. App. 160, 199

- 201, 231 P.3d 231 (2 010), aff'd , 176 Wn.2d 58, 292 P.3d 715 (2012).

9 Griffin also asserted a fourth basis: an e

- mail from the Clark County prosecutor’s office complaining that Wilken was interfering in plea negotiations with one of his confidential informants who had been caught shoplifting. This fourth basis is not included in the body of this opinion because Griffin only raises it in a footnote with no supporting argument. Therefore, we do not consider this assertion. RAP 10.3(a )(6); Cowiche Canyon Conservancy v. Bosley , 118 Wn .2d 801, 809, 828 P.2d 549 (1992).No. 42012

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Favorable evidence must be disclosed to the accused “ ‘ where the evidence is material either to guilt or to punishment , ’ ” regardless of whether the accused requests such evidence. In re Pers. Restraint of Stenson , 174 Wn.2d 474, 486, 276 P.3d 286 (quoting Brady , 373 U.S. at 87) , cert. denied , 1335 S. Ct. 444 (2012) . Favorable evidence “ encompasses impeachment evidence as well as exculpatory evidence.” Stenson , 174 Wn.2d at 486 ; see U nited States v. Price , 566 F.3d 900, 907 (9th Cir. 2009) (“ e vidence that would impeach a central prosecution witness is indisputably favorable to the accused.”) ; see also U nited S tates v. Blanco , 392 F.3d 382, 387 (9th Cir. 2004) (“ Brady/Giglio information include s ‘material . . . that bears on the credibility of a significant

w itness in the case.’”) (alteration in original) (quoting U nited S tates v. Brumel

-

Alvarez , 991 F.2d 1452, 1461 (9th Cir. 199 3 ) )

. Evidence need not be admissible to be subject to disclosure under Brady

. P rice , 566 F.3d at 912. Suppression occurs when the government withholds material evidence favorable to the accused, “irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87;
Stenson , 174 Wn.2d at 486. “ [ S ] uppressed evidence [ is ] considered collectively, not item by item.” Kyles v. Whitley , 514 U.S. 419, 43 6 , 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). The scope of the government’s “duty to disclose evidence includes the individual prosecutor’s ‘duty to lea rn of any favorable evidence known to the others acting on the government’s behalf . . . including the police.’” Stenson , 174 Wn.2d at 486 (quoting Strickler , 527 U.S. at 281).
P rejudice is shown when the “admission of the suppressed evidence would have created a ‘reasonable probability of a different result

. ’” Price , 566 F.3d at 911 (quoting U nited S tates v. Jernigan , 493 F.3d 1050, 1053 (9th Cir. 2007)) ; In re Pers. Restraint of Woods , 154 Wn.2d 400, 428, 114 P.3d 607 (2005) (stating that evidence is material and “must be disclosed if there is aNo. 42012

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reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.”)

. “ [R] easonable probability” is defined as “‘a probability
sufficient to und e rmine confidence in the outcome. ’” Price , 566 F. 3d at 911 (quoting U nited S tates v. Bagley , 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)). Whether our confidence in the outcome is undermined requires us to weigh the withheld evidence “‘in the context of the entire record.’” Price , 566 F.3d at 913 (quoting Jernigan , 492 F.3d at 1053). Because we consider the prejudicial effect of all suppressed evidence favorable to the defendant, this opinion discuss es the favorable and suppressed nature of each evidentiary item raised by Griffin, and then addresses the aggregate prejudice of the favorable and suppressed evidence

. 2

. IA #00

- 38 Griffin first asserts th at th e State violated its duty to disclose favora ble evidence by failing to turn over evidence relating to Wilken’s conflicting statements in a search warrant application, an order for destruction, and his testimony at a suppression hearing. IA #00

- 38 resulted from a complaint from the Clark County Pros ecutor’s office alleging that Wilken “provided materially false statements under oath in Clark County Superior Court” and “[d]uring the course of the review of this incident additional potential policy violations were noted.” PRP Ex. 1. We hold the evide nce was both favorable to Griffin and suppressed by the State.

a. “Favorable to the Accused”
IA #00

- 38 identified specific instance s where Wilken provided contradictory and inconsistent statements under oath to the superior court regarding a criminal case. IA #00

- 38 concluded that Wilken did provide contradictory and inconsistent statements and that he hadNo. 42012

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violated Vancouver Police Department Policy 5.1 Neglect of Duty and Vancouver Police Department Polic y 5.2 Incompetence. Here, the suppressed evidence was favorable and material because it could have been used to impeach Wilken’s testimony

. E R 608(b) allows, at the trial court’s discretion, cross

examination of specific instances of a witness’s conduct for purposes of impeaching the witness’s

c haracter for truthfulness or untruthfulness. Wilken was the lead investigating officer and was the officer who conduc ted the interviews of Alexander

. Alexander’s testimony was the only evidence that identified Griffin as committing the illegal acts for w hich Griffin was convicted, and Alexander provided that testimony in return for a significant reduction in his own sentence. The prosecutor acknowledged to the trial court that Wilken’s testimony was offered to rehabilitate Alexander’s earlier testimony t o the jury by showing that Alexander’s prior statements to Wilken

were consistent

. Wilken’s testimony rehabilitating Alexander’s testimony was significant, if not central, to the State’s case against Griffin. Price , 566 F.3d at 907 (“evidence that would impeach a central prosecution witness is indisputably favorable to the accused.”), 912 (( “‘evidence is material if it might have been used to impeach a government witness.’” ) (quoting Paradis v. Arave , 240 F.3d 1169, 1179 (9th Cir. 2001)) ; s ee also Blanco , 392 F.3d at 387 (“ Brady . . . information includes ‘material . . . that bears on the credibility of a significant witness in the case.’”). Therefore, the evidence from IA #00

- 38 was favorable to Griffin , and the first element of a Brady violation for the nondisclosure of evidence relating to IA #00

- 38 is met

.No. 42012

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17 b. “Suppressed by the State”
T here is no dispute that evidence relating to IA #00

- 38 was not turned over to the defense

. 10 The reasons for the State’s failure to disclose evidence relating to IA #00

- 38 is immaterial, and the wit h holding is determinative. Brady , 373 U.S. at 87; Stenson , 174 Wn.2d at 486. E vidence relating to IA #00

- 38 was suppressed by the State, and the second element of a Brady violation for the nondisclosure of evidence rel ating to IA #00

- 38 is met.
3

. Sexual Harassment and Assault Allegations Griffin next asserts the State violated its duty under Brady by failing to disclose the criminal investigation involving Wilken

. Griffin argues that the State wrongfully suppressed three pieces of evidence relating to the criminal investigation into sexual harassment and assault allegations against Wilken: the first was Wilken’s placing a pair of women’s underwear on Tanis Conroy’s head during the execution of a search warrant; the s econd was the potential criminal investigation against Wilken for the entirety of his conduct towards Conroy; and the third was the transcript of Wilken’s interview with the sheriff’s office regarding his interactions with Conroy.
We hold that evidence o f the criminal investigation against Wilken was favorable to Griffin and should have been disclosed to the defense.

10 There is nothing in the record or in the State’s briefing to suggest evidence relating to IA #00

- 38 was turned over for the trial court’s review. The State’s silence on this point supports the conclusion that the evidence relating to IA #00

- 38 was not di sclosed.No. 42012

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18 a. “Favorable to the Accused” ( i) Conduct during Search Warrant First, Griffin contends that the evidence of Wilken’s placing a pair of women’s underwear on Conroy’s head during the execution of a search warrant is favorable because it “show[s] Officer Wilken’s disregard for the proper handling of evidence.” Pet’r’s Reply to State’s July 29, 2013 Response at 11. Griffin’s argument on this point fails, however, because nothing in the record indicates there was any mishandling of evidence. The record shows the incident occurred after the search party had found no evidence of drugs, and was exiting the room w hen Wilken took the underwear off a clothes pile or drawer and placed them on Conroy’s head, who was walking in
front of him. T he officer assigned to evidence collection on that search warrant was not concerned with Wilken ’s conduct from an evidence collection standpoint. Griffin fails to establish how Wilkin’s conduct is material to Griffin’s guilt or punishment, or how it could impeach Wilken’s credibility or lead to impeachment evidence.

( ii) Criminal Investigation Second, Griffin contends that the evidence of a potential criminal investigation against Wilken based on his conduct towards Conroy is favorable because it indicates a potential bias in Wilken’s testimony , despite the prosecutor’s office decision not to file charges

. T he defense is allowed to show on cross

- examination that the witness has a motivation to present testimony consistent with the State’s theory of the case. Davis v. Alaska , 415 U.S. 308, 311, 317

- 18 , 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974 ). As Griffin points out, the prosecutor’s office’s decision not to press charges does not prohibit the State from instituting charges in the future. Thus, evidence ofNo. 42012

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a potential criminal investigation against Wilken was evidence bearing on his credibility and impeaching. The evidence was favorable to Griffin.

( iii) Wilken’s Statement Third, Griffin contends that Wilken ’s statement to the sheriff’s department regarding his interactions with Conroy is favorable to Griffin becau se it shows Wilken’s “admitted disregard for an honest investigative outcome.” PRP at 18. The allegedly dam n ing portion of Wilken’s statement is, “there are cop s , and I ain’t blowing my own horn, that are as good as me that can sit in a room and get some one that didn’t do it to say that they did it.” PRP Ex. 12 , at 66. Wilken’s

statement discuss ed how Conroy’s fiancé, who was also a police officer, might have questioned Conroy about her potential infidelity. But, i n the statement, Wilken never insinuat es that he has obtained, or would ever try to obtain, a false confession. Thus, this evidence would not be of any impeachment value to Griffin, and Griffin fails to establish how this evidence could lead to the discovery of any other impeachment evidence.

b. “Suppressed by the State” ( i) Conduct During Search Warrant We do not reach the issue of whether the evidence of Wilken’s placing a pair of women’s underwear on Conroy’s head during the execution of a search warrant was suppressed by the State
because that evidence is not favorable to Griffin. See e.g. , Strickler , 527 U.S. at 281

- 82 (failing to establish any element of a Brady violation causes the claim to fail).

( ii) Criminal Investigation
T he evidence of a potential criminal investigation against Wilken for his conduct towards Conroy was not provided to the defense. And although the evidence was provided to the trialNo. 42012

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court , 11 the State’s g ood faith withholding of evidence is immaterial for t he purposes of analyzing Brady violations. See e.g. , Price , 566 F.3d at 907

- 08 (“We p er form th[e suppression] step of the inquiry ‘irrespective of the good faith or bad faith of the prosecution.’”) (quoting Brady , 373 U.S. at 87). Thus, the evidence of a potential criminal investigation against Wilken for his conduct towards Con roy was suppressed by the State.

( iii) Wilken’s Statement
We do not reach the issue of whether Wilken’s statement to the sheriff’s department regarding his interactions with Conroy was suppressed because the evidence was not favorable to Griffin. See e.g. , Strickler , 527 U.S. at 281

- 82 (failing to establish any element of a Brady violation causes the claim to fail).
4

. IA #02

- 33 Griffin also asserts the State violated its duty under Brady by failing to turn over evidence related to Wilken’s off

- duty , unauthorized investigation and arrest of a suspect in 2002. Griffin asserts that this evidence was favorable to him because it would have bolstered his argument that Wilken ’s finding of the glove with Griffin’s DNA on it was not credible based on Wilken ’s

11 The State argues that giving the file to the trial court for in

- camera review constitutes disclosure to satisfy Brady . In support, the State cites cases analyzing discovery requests under an abuse of discretion standard. The State’s positio n is incorrect because the prosecution is required to make Brady disclosures, regardless of whether the defense makes a discovery request. See United States v. Kennedy , 890 F.2d at 1056, 1058 (1989) (“The Brady doctrine has been expanded to include cases where the defendant has not requested the relevant material.”), cert. denied , 494 U.S. 1008 (1990); see also State v. Knutson , 121 Wn.2d 766, 771

- 72, 854 P.2d 617 (1993). Moreover, a violation of the Brady doctrine violates a defendant’s constitutional ri ght to due process. Brady , 373 U.S. at 87. Such constitutional questions are reviewed for constitutional error, not for an abuse of the trial court’s discretion. See Kyles , 514 U.S. at 435.No. 42012

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“pattern of running afoul of police department polices.” PRP at 17. The State does not appear to dispute that this evidence was favorable to Griffin nor does the State cont end that evidence relating
to IA #02

- 33 was disclosed to the defense. 12

a. “Favorable to the Accused”
The evidence in IA #02

- 33 is favorable to Griffin because it could arguably be used to impeach Wilken on his investigation into this case

. The conclusi ons reached in IA #02

- 33 were that Wilken had violated the Vancouver Police Department’s policies of “Neglect of Duty,” “Duty to Report Information ,” “Unauthorized Investigations,” “Chain of Command,” and “Prisoner Security”; and “[s]ufficient evidence exi sts to substantiate the allegation that [Wilken] failed to exercise diligence, good judgment, and the interest of the D epartment.” PRP Ex. 3

. This evidence would be favorable to Griffin in arguing to the jury that the integrity of Wilken’s investigation of the crime Griffin was charged with could be doubted. More importantly, however, this evidence could also le a d to finding that other investigations into Wilken’s conduct as an officer have been conduct ed improperly

. In the Letter of Reprimand to Wilk en for IA #02

- 33, the chief of police said: Second, there is a sufficient history of internal affairs investigations with you as the subject of the investigation, three of which resulted in sustained policy violations for incidents in which you also failed to exercise good judgment in your duties as a police officer. Third , you have already received counseling and retraining for previous performance errors.

12 Instead, the State only argues that “[i]t is difficult to imagine how these acts of misconduct . . . would be admissible in Griffin’s” case. Response to PRP at 31. The admissibility of the evidence is properly addressed in determining whether the eviden ce would affect the outcome of the proceeding, not in determining whether the evidence is favorable to the defendant or whether the evidence was suppressed. State v. Gregory , 158 Wn.2d 759, 797, 147 P.3d 1201 (2006); Knutson , 121 Wn.2d at 772

- 73.No. 42012

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PRP Ex. 3, Letter of Reprimand at 2 . This would have led Griffin or Griffin’s attorneys to ask

a bout Wilken’s “history of internal affairs investigations,” such as IA #00

- 38, which would be admissible to impeach Wilken’s testimony. PRP Ex. 3, Letter of Reprimand at 2. Thus, Griffin satisfies the first element of a Brady violation by showing that th e evidence from IA #02

- 33 was favorable. b. “Suppressed by the State”
There is nothing in the record, nor in the State’s briefing, that suggest s evidence relating to
IA #02

- 33 was turned over to the defense. Therefore, the State suppressed evidence relating to IA
#02

- 33 , and the second element of a Brady violation for the nondisclosure of evidence relating to
IA #02

- 33 is met. 13
5

. Prejudice The e vidence Griffin has identified that is both favorable to him and was suppressed by the
State is evidence relating to : (1) IA #00

- 38; (2) the potential criminal investigation against Wilken for his conduct towards Conroy; and (3) IA #02

- 33. We consider the prejudicial effect of th is evidence collectively and in the context of the entire record. Pric e , 566 F.3d at 913

. The favorable evidence that the State failed to disclose to Griffin was both likely admissible and likely to lead to other evidence that could be admissible to impeach Wilken. First, e vidence

13 Griff in also asserts, in a footnote, that but for Wilken’s resignation, another internal investigation would have been launched into Wilken’s alleged interference with the plea negotiations between the prosecutor’s office and a confidential informant. Griffin does not provide any further argument or discussion relating to Wilken’s alleged interference. Consequently, we do not consider this argument. RAP 10.3(a)(6); Cowiche Canyon Conservancy , 118 Wn .2d at 809

.No. 42012

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relating to IA #00

- 38 was likely admissi ble under ER 608(b) to show a specific instance where Wilken gave inconsistent statements under oath in a criminal proceeding. Second, e vidence of a potential criminal investigation against Wilken for his conduct towards Conroy would likely be admissible to show Wilken had motivation to present testimony consistent with the State’s theory
of the case. Davis , 415 U.S. at 311, 317

- 18. Third, evidence relating to IA #02

- 33 could have
expose d other admissible impeachment evidence, such as the existence previous internal investigations like IA #00

- 38

. 14 The State contends that the evidence relating to I A #00

- 38 would be inadmissible because the investigation w as too remote in time. In support, the State relies on State v. Gregory , 158 Wn.2d 759, 147 P.3d 1201 (2006) , and State v. Lord , 117 Wn.2d 829, 822 P.2d 177 (1991). Gregory , however, held that evidence where the victim had lied , even when not under oath, was likely admissible under ER 608(b). 158 Wn.2d at 798

- 99. And, i n Lord , the court considered admissibility of evidence under ER 608(a), not ER 608(b). 117 Wn.2d at 874

- 7 5

. Thus, n either Gregory , 158 Wn.2d 759, nor Lord , 117 Wn.2d 829, support the State’s argument that evidence relating to IA #00

- 38 is inadmissible.
We are not ultimately concerned with the concrete admissibility of withheld evidence; instead, we are concerned with the materiality of the withheld evidence and the effect of any potentially resulting prejudice. Price , 566 F.3d at 911

- 12. Without evidence rel ating to IA #00

- 38, the sexual harassment and assault allegations , and IA #02

- 33, the defense was not able to

14 Griffin seems to claim that IA #02

- 33 would be admissible to show that Wilken had a “pattern of running afoul of police department polices.” PRP at 17. Griffin does not cite any law or evidentiary rule to support that IA #02

- 33 would be admissible.No. 42012

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impeach the veracity of Wilken ’s investigation and testimony . Wilken’s testimony validated the story Alexander told to the jury

. Alexander was t he only witness to testify with firsthand knowledge that Griffin committed the crime, and Alexander’s credibility was in question because of his plea deal with the State and the victim identifying Alexander as the perpetrator

. Had the State disclosed the evidence relating to IA #00

- 38, the criminal investigation, and IA #02

- 33, Griffin could have used that evidence to discredit Wilken , whos e testimony validated the State’s theory and discredited the victim’s identification of Alexander as his assailant. G iven the nature and extent of evidence withheld, t here is a reasonable probability that the outcome of Griffin’s
trial would have been different had evidence relating to IA #00

- 38, the criminal investigation, and
IA #02

- 33 been disclosed to the defense

. Therefore, we hold that the State violated Brady by failing to disclose evidence relating to Wilken. And the State’s violation had a reasonable probability of affecting the outcome of Griffin’s trial, thereby, prejudicing Griffin.
C

. I NEFFECTIVE A SSIST ANCE OF C OUNSEL Griffin argues he received ineffective assistance of counsel in three ways. First, Griffin claims his trial counsel did not adequately investigate Wilken’ s conduct to impeach Wilken’s testimony. Second, Griffin claims his trial counsel f ailed to impeach Alexander’s testimony and Wilken’s testimony on Alexander’s statements. And, third, Griffin claims he was prejudiced by his attorney’s failure to object to prosecutorial misconduct. We hold that Griffin was prejudiced by his trial counse l’s failure to object to improper vouching evidence during the prosecution’s case
in chief.No. 42012

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25

The right to effective assistance of counsel is afforded criminal defendants by the Sixth Amendment to the United States Constitution and article I, section 22 o f the Washington Constitution. Strickland v. Washington , 466 U.S. 668, 685

- 86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas , 109 Wn .2d 222, 229, 743 P.2d 816 (1987). Our Supreme Court has held that a personal restraint petitioner meets his burden to show actual and substantial prejudice when he makes a successful ineffective assistance of counsel showing under Strickland

. In re Crace , 174 Wn.2d at 842. To establish ineffective assistance of counsel, Griffin must show both deficient performance and resulting prejudice. State v. McFarland , 127 Wn.2d 322, 334

- 35, 899 P.2d 1251 (1995). Deficient performance occurs when counsel’s performance falls below an objective

st andard of reasonableness. State v. Stenson , 132 Wn.2d 668, 705, 9 40 P.2d 1239 (1997) , cert. denied , 523 U.S. 1008 (1998)

. To show prejudice, Griffin must demonstrate that there is a probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. McFarland , 127 Wn.2d at 335. If Griffin fails to satisfy either prong, we need not inquire further. State v. Hendrickson , 129 Wn.2d 61, 78, 917 P.2d 563 (1996). There is a strong presumption of effective assis tance, and Griffin bears the burden of demonstrating the absence of a strategic reason for the challenged conduct. State v. McNeal , 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
We view the decisions whether and when to object as “classic example[s] of trial tactics.” State v. Madison , 53 Wn. App. 754, 763, 770 P.2d 662 , review denied , 113 Wn.2d 1002 (1989). “Only in egregious circumstances, on testimony central to the State ’ s case, will the failure to object constitute incompetence of counsel justifying re versal.” State v. Johnston , 143 Wn . App. 1, 19,No. 42012

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177 P.3d 1127 (2007 ) (quoting Madison , 53 Wn. App. at 763) . It is a legitimate trial tactic to forego an objection in circumstances where counsel wishes to avoid highlighting certain evidence.
Davis , 152 Wn.2d at 714. Where a defendant bases his ineffective assistance of counsel claim on trial counsel’ s failure to object, the defendant must show that the objection would likely have succeeded. State v. Gerdts , 136 Wn. App. 720, 727, 150 P.3d 627 (20 07).
1. Investigation of Wilken Griffin first asserts that his attorney “had an independent duty to conduct a full investigat ion” into Wilken’s prior conduct. PRP at 24

- 25. Griffin provides no legal support or supporting argument for this assertion. 15 Moreover, Griffin does not provide any evidence to suggest his attorney did not investigate Wilken’s prior conduct. The record shows Griffin’s attorney discovered , through his own investigation, that Wilken had been put on administrative leave. The rec ord also shows that Griffin’ s attorney asked the court to have the prosecution turn over the information so that he could determine if the information might have an effect on the case. Finally, the record shows that Griffin’s attorney saw the prosecution give the trial court a sealed file , containing an unknown amount and unknown type of information, for an in camera review, and the trial court determined the information did not need to be disclosed to Griffin’s attorney. In his petition, Griffin does not offer any argument or citation to authority as to how his attorney’s performance fell below an objective standard of

15 We do not consider assertions without argument or authority. RAP 10.3(a)(6); Cowiche Canyon Conservancy , 118 Wn .2d at 809. Moreover, “ [w] here no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post

- Intelligencer , 60 Wn .2d 122, 126, 372 P.2d 193 (1962).No. 42012

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reasonableness. St enson , 132 Wn.2d at 705. Therefore, Griffin’s claim fails because he cannot establish that his trial counsel was deficient.
2. Impeaching on a Prior Inconsistent Statement Griffin asserts that his attorney was ineffective for failing to impeach both Ale xander and Wilken. This argument is based on Alexander’s statement to Wilken in Alexander’s second
interview with Wilken before Alexander had been offered a plea, where Alexander described the timeline of events leading up to the robbery. The transcribed record of Alexander ’s statement is ambiguous at best, and thus we hold that Griffin’s attorney was not deficient in failing to use it to impeach Alexander and Wilken

. Griffin points to the following exchange between Alexander and Wilken as showing Alex ander ’s prior inconsistent statement is as follows: [Wilken]: And what did those two [Griffin and Perkins] do? [Alexander]: Um they (unintelligible) and then they came back and I walked . . . I wanted something to drink so I walked to [ the convenience st ore]

. [Wilken]: Okay. [Alexander]: Got something to drink. Well, actually, wen t to (unintelligible) and then left and went back, you know, (unintelligible). They got in the car, (unintelligible) I mean, I didn’t think, you know what I’m saying, that th ey was [sic] going to go . . . go over there for real. PRP Ex. 16, at 44. Griffin contends that this statement does “not contain any mention of going
back to the mini

- mart” where Griffin was seen on camera , by himself , buying a beer shortly before midnight . PRP at 27. Therefore, when Alexander testified at trial that he and Perkins had gone with Griffin back to the mini

- mart so that Griffin could buy a beer, Griffin’s attorney should have impeached Alexander with this statement that he made to Wilken. Similarly, Griffin contends thatNo. 42012

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his attorney should have used this statement to impeach Wilken when Wilken testified that Alexander’s story to the jury was consistent with the story he told before being offered a plea deal. And, Griffin further contends his attorney should have impeached Wilken’s polic e report where in Wilken states Alexander told him that Alexander had been with Griffin when Griffin bought the beer on the way to commit the robbery. Griffin must establish that counsel’s performance for failing to bring Alexander’s statement

to attention of the trial court and the jury fell below an objective standard of reasonableness.
Stenson , 132 Wn.2d at 705. Reading Alexander’s statement, it is impossible to determine wher e Alexander is saying he “went back” to

—he could either be referring to going back to somewhere other than the mini

- mart , as Griffin asserts, or Alexander could be referring to going back to the
mini

- mart , as the State asserts. PRP Ex. 16, at 44. We do n ot hold that Griffin’s trial counsel’s performance was deficient for not arguing the existence of a prior inconsistent statement when it is questionable whether a prior inconsistent statement existed . Therefore, having failed to establish that his trial c ounsel’s performance was deficient, this argument for ineffective assistance of
counsel fails as well.
3. Failure to Object to Prosecutorial Misconduct Griffin argues he was prejudiced by ineffective assistance of counsel when his attorney failed to obje ct to questions and comments made by the prosecutor d uring the State’s case in chief, closing argument , and rebuttal . Griffin contends the prosecutor improperly vouched for the credibility of Alexander during the State’s case in chief and closing argument

. We hold that Griffin’s trial counsel was deficient in failing to object to the misconduct and the petition shouldNo. 42012

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2 9

be granted because there is a reasonable probability that the failure to object affected the outcome of the trial. Where a defendant bas es his or her ineffective assistance of counsel claim on trial counsel’s failure to object, the defendant must show that the objection likely would have succeeded. Gerdts , 136 Wn. App. at 727. Therefore , we examine the underlying claim of prosecutorial misconduct. To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial. State v. Emery , 174 Wn.2d 741, 756, 278 P.3d 653 (2012). First, we determine whether the prosecutor’s conduct was improper. Id. at 759. If the prosecutor’s conduct was improper, the question turns to whether the prosecutor’s improper conduct resulted in prejudice. Id. at 760

- 61. Prejudice is established by showing a substantial likelihood that the prosecutor’s misconduct affected the verdict. Id. at 760. A prosecutor commits misconduct by personally vouching for a witness ’ s credibility or veracity

. State v. Brett , 126 Wn.2d 136, 175, 892 P.2d 29 (1995) , c ert. denied , 516 U.S. 1121 (1996) ; State v. Ish , 170 Wn.2d 189, 196, 241 P.3d 389 (2010)

. “ Improper vouching generally occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the prosecutor indicates t hat evidence not presented at trial supports the witness ’ s testimony. ” Ish , 170 Wn.2d at 196

. Pr osecutor s have “ wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on witness credibility based on the e vidence. ” State v.
Lewis , 156 Wn. App. 230, 240, 233 P.3d 891 (2010). Typically, c losing argument s made by prosecutors do not constitute improper vouching for witness credibility unless it is clear that the prosecutor is not arguing an inference from the evidence but, instead, is expressing a personalNo. 42012

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opinion about witness credibility. State v. Warren , 165 Wn.2d 17, 30, 195 P.3d 940 (2008) , cert. denied , 556 U.S. 1192 (2009)

.

a. Prosecution’s Case in Chief First, Griffin argues the prosecutor committed misconduct during the State’s case in chief when the prosecutor questioned Alexander about the plea agreement Alexand er had made to testify favorably in exchange for reduced charges and then introduced the plea agreement into evidence. Griffin specifically identifies as misconduct the part of Alexander’s testimony where the State elicited testimony that Alexander has to testify truthfully in order to get the reduced charges. The pertinent part of the testimony follows: [Prosecutor]: So, what is it you’re supposed to do? [Alexander]: Tell the truth. [Prosecutor]: Okay. In this trial? [Alexander]: Yes.

. . . . [Pros ecutor]: Okay. All right. And are there terms in that contract that say what happens if you a re not truthful in your testimony, you know, what happens if you’re not truthful? [Alexander]: Yeah. [Prosecutor]: What does it say happens? [Alexander]: That I’ll get the full range of two charges.
VRP at 286

- 87. No objection was entered by defense counsel during this testimony and defense counsel told the trial court that the defense did not object to the agreement being entered into evidence. Griffin contends this failure to object constitutes reversible ineffective assistance ofNo. 42012

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counsel. We agree that Griffin’s trial counsel was deficient for failing to enter an objection and that Griffin was prejudice d by his trial counsel’s failure to object.
In S tate v. Ish , 16 the trial court admitted evidence of a plea agreement between the State and Ish’s cellmate, and allowed the State to question the cellmate about the agreement on direct examination. 170 Wn.2d at 193, 196

- 97. The agreement contained several statements indicating that the cellmate “ agree[d] to provide ‘ a complete and truthful statement, ’ to ‘ testify truthfully, ’ and to ‘ have told the truth, to the best of his knowledge.’” Id. at 193 (emphasis omitted)

. O n direct examination, the prosecutor established that the Sta te agreed to reduce the cellmate’s charges in an unrelated matter in exchange for his testimony against Ish

. Id. at 192, 194. The prosecutor asked, “ With regard to exchanging testimony in this case, what type of testimony? ” to whi ch the witness answered, “ Truthful testimony. ” Id. at 194. On redirect, the prosecutor implied that the State would revoke the agreement if the witness breached it, and he then reiterated the agreement ’ s use of “ truthful ly

. ” Id. Finally, the prosecutor asked, “ Have you testified truthfully? ” to which the witness answered, “ Yes, I have. ” Id. at 194. The Ish court held that admitting the plea agreement and the prosecutor’s subsequent questioning constituted vouching by the prosecutor. 17 Id. at 201. The court reasoned: Evidence that a witness has promised to give “ truthful testimony ” in exchange for reduced charges may indicate to a jury that the prosecution has some independent means of ensuring that the witness complies with the terms of the agreement. While

16 Ish was decided after Griffin’s trial. However, our Supreme Court in Ish adopted the reasoning used in State v. Green , 119 Wn. App. 15, 23

- 24, 79 P.3d 460 (2003), which was the controlling law at the time of Griffin’s trial.

17 Ish was a plurality opinion, but a majority of the justices agreed that the prosecutor improperly vouched for the witness's credibility. 170 Wn.2d at 199

- 200 (plurality opinion), 2 06 (Sanders, J., dissenting).No. 42012

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such evidence may help bolster the credibility of the witness among some jurors, it is generally self

- serving, irrelevant, and may amount to vouching, particularly if admitted during the State ’ s case in chief. “ [P]rosecutorial remarks implying tha t the government is motivating the witness to testify truthfully: ‘ . . . are prosecutorial overkill.’” [ United States v. ] Roberts , 618 F.2d [530 , ] 536 ( second alteration in original) (quoting United States v. Arroyo

– Angulo , 580 F.2d 1137, 1150 (2d Cir. 1978) (Friendly, J., concurring)). We agree with the court ’ s conclusion in Green that evidence that a witness has agreed to testify truthfully generally has little probative value and should not be admitted as part of the State ’ s case in chief. Evidence is not admissible merely because it is contained in an agreement, and reference to irrelevant or prejudicial matters should be excluded or redacted. [ State v. ] Green , 119 Wn. App. [15 , ] 24, 79 P.3d 460 (2003) ; see also [ State v. ] Jessup , 31 Wn

. App. [304, ] 316, 641 P.2d 1185; Roberts , 618 F.2d at 536. Id. at 198. Here, the plea agreement was admitted into evidence without objection, and the State questioned Alexander on direct examination about his obligation under the agreement to tell the truth. Under Ish , this constitutes vouching by the prosecution and the tri al court likely would have prohibited it, had an objection been entered. Id. at 201 (“ Evidence that a witness has entered into a formal agreement with the State to testify truthfully should be excluded during direct examination .”). Thus, Griffin’s trial counsel was deficient for failing to enter an objection. Also, Griffin was prejudice d by his trial counsel’s failure to object. To show prejudice for ineffective assistance of counsel, Griffin must demonstrate that there is a reasonable probability tha t, but for counsel’s deficient performance in failing to object, the result of the proceeding would
have been different. McFarland , 127 Wn.2d at 335. Here, there is a reasonable probability that the result of the proceeding would have been different ha d defense counsel objected. The evidence presented at trial against Griffin was not overwhelming. The evidence against Griffin consisted of the glove found at a nearby apartment complex with his DNA and others’ on it, his asking Green to use her phone la te on an unknownNo. 42012

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night , and Alexander’s testimony. Alexander’s testimony naming Griffin as one of Atkinson’s
assailants was the only evidence presented at trial that linked the glove to its possible use in the crime. 18 Alexander’s testimony was also the o nly evidence that created an alternative reason , and provided a date, for Griffin’s presence at Green ’s apartment. Finally, Alexander’s testimony was the only evidence presented at trial that put Griffin at Atkinson’s door attempting the robbery, and

cont radicted the evidence of Atkinson’s identification of Alexander and the footage of Griffin alone at the mini

- mart shortly before midnight. Had defense counsel objected, the trial court would have been able to limit the improper vouching evidence and /or issue a curative instruction. A curative instruction would have eliminated the credibility imparted onto Alexander’s testimony through the State’s improper vouching, and the jury would have been in a better position to judge Alexander’s credibility indepe ndently. Therefore, but for trial counsel’s failure to object, “there is a reasonable probability that” “the result of the proceeding would have been different.” McFarland , 127 Wn.2d at 335. Thus, there is a reasonable probability that had defense cou nsel objected, the objection would likely have been sustained. Griffin has shown that defense counsel was deficient for failing to object to the prosecutor’s vouching during the State’s case in chief.

b. Prosecution’s Closing and Rebuttal
Griffin claims that he received ineffective assistance of counsel when defense counsel failed to object to the State’s closing argument and rebuttal closing argument. Griffin cites four

18 Even this link was weak. Alexander testified that he did not know if Griffin or Perkins were wearing gloves. He testified that Griffin had gotten gloves out of his apartment.No. 42012

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instances that defense counsel should have objected. Griffin does no t support any of his claims relating to these instances with applicable legal argument, and therefore , his claims fail

. First, Griffin points to the following in the prosecutor’s closing: Well, [Atkinson] certainly when he testifies he knows Garry Alexander’s behind this. I mean, he knows Garry Alexander is one of the three charged c o - defendants in this. So he obviously, you know, isn’t gonna have any big moral dilemma testifying that Gar ry Alexander is one of them.
VRP at 442

- 43. To support his contention that this was improper, Griffin cites State v. Fleming for the following general proposition: “ it is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State ’ s witnesse s are either lying or mistaken.” 83 Wn. App. 209, 213, 921 P.2d 1076 (1996) , review denied , 131 Wn.2d 1018 (1997) . Griffin does not provide
any other analysis. The prosecutor’s statements here are not similar to those made by the prosecutor in Fleming . The prosecutor in Fleming said, “ for you to find the defendants . . . not guilty . . . you would have to find either that [D.S.] has lied about what occurred in that bedroom or that she was confused; essentially that she fantasized what occurred back in that bedroom. ” 83 Wn. App. at 213 (emphasis omitted) . Without any argument as to how Fleming is applicable, this claim fails

. Second, Griffin points to the following in the prosecutor’s closing: You know, something that you can do as jurors is just think about Garry Alexander’s testimony. I submit to you that he c a me across as a forthright witness. He did not hold back. In fact, when he’s being confronted with this idea of doing a deal where he has to tell the truth a bout everything, at that point, you know, months after he confessed, he admits, well, we actually planned to do it a week earlier but nobody’s home that time. You know, so he’s

— he’s not holding anything back.No. 42012

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35 And when he testifies, he

—he does n’t try t o sugarcoat anything, he doesn’t try to sugarcoat his involvement, he’s like, you know, yea h , we

— we were doin’ this thing.

. . . . But he

—

he didn’t pull any punches on the stand, you know, he didn’t try to sugarcoat his involvement, and on cross

- examina tion by Defense counsel, he, you know, admitted to everything. All right. So I submit to you that he comes off in his presentation on the witness stand as a guy who was involved in this but is forthright in what his involvement was. VRP at 449

- 50. Griffin contends that this was improper vouching “in two of the ways outlined in United States v. Brooks , 508 F.3d at 1209.” PRP at 36. Griffin also cites Ish , to say that “[b]y making this statement, the prosecutor ‘expresse[d] his . . . personal belief as to the veracity of the witness.’” PRP at 36 (quoting Ish , 170 Wn.2d at 196). Again, Griffin does not provide any further argument as to how either Brooks or Ish apply . Both Brooks and Ish considered the prosecution’s examination of witnesses during the prosecution’s case in chief. Here, however, Griffin claims error in the prosecution’s closing and provides no argument as to how the discussions in Brooks or in Ish apply. Consequently, th is claim fails

. Third, Griffin points to the following in the prosecutor’s closing: So I encourage you to think about, you know, who a deal should be made with in this scenario. Certainly not one of the guys at the door that’s involved in the actual sh ooting of the victim, but the driver. That’s the guy that makes sense to make a deal with, just like if it’s a bank robbery and you have a, you know, a driver and guys that go in and rob the ba n k, it’s most likely the deal would be made with the driver, a nd that’s what happens here.
V R P at 446

- 47.No. 42012

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Griffin’s claim of error for these statement s is not accompanied by any legal argument or citation to legal authority. “ [ W ] here no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after d iligent search, has found none.” DeHeer v. Seattle Post

- Intelligencer , 60 Wn.2d 122, 126, 372 P.2d 193, 195 (1962)

. Consequently, this claim fails

. Cowiche Canyon Conservancy v. Bosley , 118 Wn .2 d 801, 809, 828 P.2d 549 (1992) ; RAP 10.3 (a) (6)

. Finally, Griffin points to the following in the prosecutor’s rebuttal: The polygraph. Remember, you can look at that contract that the defendant signed, and you can see that throughout that contract it’s all hinged on the defendant giving truthful statement s that

— at all interviews, pretrial interviews, testimony and in any proceeding in the matter of this defendant and Christopher Perkins. The defendant knows full well, it’s very clear on that contr act, he can be given a polygraph at any time. If he fails, that could be used against him to pull his deal. He knows that. A nd he knows that when he’s testifying. Al l r ight. So you can see that in the contract. VRP at 489. Griffin contends that this was error and quotes Ish , 170 Wn.2d at 198, for the general proposition that “‘[ P ]rosecutorial remarks implying that the government is motivating the witness to testify truthfully: ‘

. . . are prosecutorial overkill. ’” PRP at 38 (quoting Ish , 170 Wn.2d at 198)

. But Ish did not consider prosecutorial misconduct during closing arguments; rather, the Ish court considered evidence elicited through the prosecution’s direct examination. 170 Wn.2d at 201 (“Evidence that a witness has e ntered into a formal agreement with the State to testify truthfully should be excluded during direct examination .”) (emphasis added). Moreover, the Ish court explicitly stated that the prosecution would be allowed to point out the witness’s contractual obligation to testify truthfully if the defendant brought it up. 170 Wn.2dNo. 42012

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at 199 (“If the agreement contains provisions requir ing the witness to give truthful testimony, the State is entitled to point out this fact on redirect if the defendant has previo usly attacked the witness’s credibility.”). Here, the defense in closing argument first introduce d the provision for a polygraph test in Alexander’s plea agreement. In the defense’s closing argument, defense counsel argued : [Y]ou’ll notice in the coopera tion agreement, which will be back in the jury room, it’s on page 2, and [Alexander] agreed to take a polygraph test to determine the truth of his story. The State didn’t do one. They had him take a polygraph test prior, before he came up with the new st ory, but after the story, the State had the ability to do a polygraph test, they chose not to.
VRP at 483. Griffin provides no argument as to how Ish applies. However, even if Griffin had provided a substantive legal argument on this claim, his argu ment would still fail because the defense opened the door to the State’s rebuttal. Prosecutors are afforded “ wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on witness cr edibility based on the evide nce,” Lewis , 156 Wn. App. at 240, and the State is entitled to point out provisions of the agreement with a witness that require the witness to testify truthfully if that witness’s credibility has first been attacked, Ish , 170 Wn.2d at 199. Therefore, we hold Griffin’s ineffective assistance of counsel claim fails.
D

. P ROSECUTORIAL M ISCONDUCT Griffin claims that the prosecutor committed prejudicial misconduct. Specifically, Griffin argues that the prosecutor improperly vouched for the credibility of Al exander during the State’sNo. 42012

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case in chief and closing argument. 19 We hold that Griffin’s argument fails because he does not establish that a curative instruction would not have obviated any resulting prejudice. 20 If a defendant does not object at trial, he or she 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 any resulting prejudice. Emery , 174 Wn.2d at 760

- 61. Under this heightened standard of review, the d efendant must show misconduct and that “(1) ‘no curative instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Emery , 174 Wn.2d at 761 (quoting State v. Thorgerson , 172 Wn.2d 438, 455 , 258 P.3d 43 (2011) ). In making that determination, we “ focus less on whether the prosecutor ’ s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been c ured. ” Emery , 174 Wn.2d at 762. Here, Griffin tells this court “[i]t’s hard to conceive what instruction” could have cured the prejudice he claims to have suffered, but he does not make any argument to show how a curative instruction would not have obvia ted any prejudicial effect on the jury. PRP at 43; Emery , 174 Wn.2d at 761. That a curative instruction is hard for Griffin to think of, does not satisfy his burden of proof under Emery

. Griffin also does not present any argument to show how or whether any

19 Griffin does not cite to any conduct by the prosecutor in the prosecutorial misconduct section of his brief. He is presumably relying on the prosecutor’s actions he points to in his ineffective assistance of counsel argument, so those are addressed in th is opinion.

20 The extent of Griffin’s argument as to why a curative instruction would not obviate any prejudice consists of the following sentence: “It’s hard to conceive what instruction could have adequately informed the jury that they need not decide w hether the government made a mistake in giving Alexander a deal.” PRP at 43. This argument is not supported by citation to case law or the record. Thus, we do not consider this argument. RAP 10.3(a)(6); Cowiche Canyon , 118 Wn .2d at 809 ; DeHeer , 60 Wn .2 d at 126.No. 42012

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resulting prejudice existed and “‘had a substantial likelihood of affecting the jury verdict.’” Emery , 174 Wn.2d at 761 (quoting Thorgerson , 172 Wn.2d at 4 55 ). Thus, having failed to establish both prongs of Emery , Griffin’s claims for prosecutorial misconduct fails.
E

. C UMULATIVE E RROR B ASED ON B RADY AND S TRICKLAND V IOLATIONS Finally, Griffin argues that the cumulative effect of the errors he alleges above undermines the confidence in the outcome of his trial

. Under the cumulative error doctrine, the appellate court will reverse a trial court verdict when it appears reasonably probable that the cumulative effect of

errors materially affected the outcome, even when no one error alone manda tes reversal

. State v. Russell , 125 Wn.2d 24, 93 , 882 P.2d 747 (1994) ; State v. Johnson , 90 Wn. App. 54, 74, 950 P.2d 981 (1998). Because we hold that Griffin has established Brady and Strickland errors independently warranting reversal under Crace , 174 Wn.2d 835, we do not consider this argument.
F. C ONCLUSION In conclusion, we grant Griffin’s petition and remand for new trial because the State failed
to disclose Brady evidence favorable to Griffin that, in the aggregate, create a reasonable probability that the outc ome of the proceedings would have been different. We also grant Griffin’s petition and remand for new trial because he received ineffective assistance of counsel when trial counsel failed to object to the prosecutor’s improper vouching during the State’s case in chief and had his trial counsel objected , there is a reasonable probability that the outcome of the proceedingsNo. 42012

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would have been different. We dismiss Griffin’s prosecutorial misconduct argument because he
fails to establish that a curative instruction could not have obviated the prejudice. Finally, we do
not consider Griffin’s argument that the cumulative effect of the State’s failure to disclose and ineffective counsel claims because these errors independently warrant reversal. A majori ty 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.

Lee, J. We concur:

Johanson, P.J.

Sutton, J.