IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

AMY SUE BROWN,

Appellant.

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No. 37645-1-III

(consolidated with

No. 37718-1-III1)

PUBLISHED OPINION

STAAB, J. — After a night of heavy drinking, Amy Brown shot and killed her 

friend, Amanda Hill. At trial, she claimed self-defense. The jury found her guilty of 

felony murder. On appeal, Ms. Brown argues that her trial attorney was constitutionally 

ineffective for two reasons. First, she contends that her attorney failed to argue that our 

Supreme Court’s extension of the Batson2test in State v. Jefferson, 192 Wn.2d 225, 429 

P.3d 467 (2018), should apply to an objection based on gender discrimination. In the 

alternative, she contends that even under a traditional Batson analysis, the trial court 

 

1 State v. Brown, No. 37718-1-III, was consolidated and dealt with a denied 

postconviction CrR 7.4 arrest of judgment motion and a CrR 7.5 new trial motion 

asserting evidence insufficiency. Ms. Brown failed to brief these collateral attacks so 

they are not addressed and her appeal in this case is denied. RAP 10.3. 

2 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

FILED

MARCH 31, 2022

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37645-1-III; No. 37718-1-III

State v. Brown

2

erred in denying her objections. Second, she contends that her attorney proposed jury 

instructions that effectively lowered the State’s burden of proving self-defense. Ms. 

Brown also challenges the admission of a photograph of the victim at trial and raises 

issues of prosecutorial misconduct and cumulative error. 

We reject these issues. We hold that Ms. Brown’s attorney was not 

constitutionally ineffective for failing to argue that the holding in Jefferson, pertaining to 

objections based on race and ethnicity, must necessarily apply to objections based on 

gender. In addition, we conclude that the trial court’s application of the Batson test to the 

State’s use of peremptory challenges on six female jurors was not clear error. We also 

decide that Ms. Brown’s trial attorney was not constitutionally deficient for proposing 

jury instructions on self-defense because the instructions accurately reflect the law. Next, 

we find that the trial court did not abuse its discretion by admitting an old photograph of 

the victim with her then-toddler son. Finally, we conclude that under the heightened 

burden for unpreserved error, Ms. Brown fails to establish prosecutorial misconduct that 

requires reversal. In reaching these conclusions, we necessarily reject Ms. Brown’s claim 

of cumulative error and affirm the conviction. 

BACKGROUND

Amy S. Brown was charged with murder in the second degree under 

RCW 9A.32.050(1)(b) for the felony assault in the second degree of Amanda Hill, which 

caused her death. The case went to trial. 
No. 37645-1-III; No. 37718-1-III

State v. Brown

3

The circumstances surrounding the assault and Ms. Hill’s death were revealed at 

trial. Ms. Brown’s boyfriend testified that everyone was drinking heavily on the night of 

Ms. Brown’s birthday party. He went to bed around midnight. Ms. Brown’s child was 

sleeping in the house. Ms. Hill came into the boyfriend’s room and woke him up. Ms. 

Brown entered the room, yelled “‘I knew it,’” and left. Report of Proceedings (RP)

at 570. The interaction in the room was caught on video and played for the jury. Both 

women left the room. 

Three minutes later, the boyfriend heard a gunshot and ran out of the room. Ms. 

Brown had shot Ms. Hill with a .38 revolver at point-blank range, killing Ms. Hill. The 

trajectory of the bullet wound was “front to back, downward and left to right” with entry 

at the left breast and exit near the spine. RP at 1113. Ms. Hill also had contusions 

consistent with a struggle. The women were up against a white sport utility vehicle in the 

driveway near the home’s back door when police arrived. Blood spatter, blood smear,

and smeared dirt appeared on the vehicle’s passenger side front door and running board. 

Officers took Ms. Brown into custody and interviewed her. She did not have dirt 

on the front or back side of her clothes. She did not have apparent injuries attributed to 

the incident. Three police interview recordings of Ms. Brown totaling two hours were 

played for the jury. 

During the interview, Ms. Brown said that she went outside to smoke after seeing 

Ms. Hill in her boyfriend’s bed and was pushed from behind. The push caused her to fall 
No. 37645-1-III; No. 37718-1-III

State v. Brown

4

forward and she rolled over, at which point Ms. Hill got on top of her near where the 

cement and dirt met and put her hands around Ms. Brown’s throat and mouth. Her 

airway was not obstructed. She told Ms. Hill to get off her. She believed that Ms. Hill 

was trying to choke her. She did not believe that Ms. Hill was trying to kill her. With 

Ms. Hill on top of her, Ms. Brown opened the car door, retrieved the gun from the door, 

removed it from a holster, and shot Ms. Hill. Ms. Brown did not believe that Ms. Hill 

was trying to hurt her. Ms. Brown said she “fucked up.” RP at 1354. 

During trial, Ms. Brown’s testimony was not consistent with her interview. She 

stated that Ms. Hill “postured and screamed at me and tackled me flat on the ground.” 

RP at 1468. She stated that she was terrified. She denied being jealous of her boyfriend 

and Ms. Hill. The State’s blood spatter expert testified that Ms. Hill’s version of events 

was inconsistent with the physical blood evidence on the clothes and car. He concluded 

that it was not possible that Ms. Hill was shot while straddling Ms. Brown’s torso leaning 

forward face to face. Ms. Hill was seven inches taller than Ms. Brown. 

The jury found Ms. Brown guilty, and she appeals. 

ANALYSIS

A. PEREMPTORY CHALLENGES AND GENDER BIAS

At trial and on appeal, Ms. Brown challenges the State’s use of six of its seven 

peremptories to remove female jurors. The State waived its seventh peremptory. Ms. 

Brown exercised all seven of her peremptory challenges, removing five men and two 
No. 37645-1-III; No. 37718-1-III

State v. Brown

5

women.3 The final jury consisted of eight men and four women with one male and one 

female alternate. According to the “Panel Random List,” of the 88 person venire, 46 

were men and 42 were women. Clerk’s Papers (CP) at 120-23. Among the first 40 

potential jurors, there were 21 men and 19 women. 

Before considering whether the trial court erred, we must determine which test to 

apply. At trial, defense counsel objected to the State’s peremptory challenges but 

acknowledged that since the basis of the objection was gender not race, GR 37 did not 

apply, and the court should apply the Batson test. After applying the Batson test, the 

court found that the record supported the State’s gender-neutral reasons for striking the 

jurors and Ms. Brown had not demonstrated purposeful discrimination. 

On appeal, Ms. Brown concedes that GR 37 does not apply to an objection based 

on gender discrimination and acknowledges that she urged the trial court to apply a 

traditional Batson test to her objections. Nevertheless, she asserts that the trial court 

should have applied the modified Batson test as declared in Jefferson. Ms. Brown did not 

ask the trial court to apply a modified Batson test to her objections. The only way she 

can successfully raise this issue for the first time on appeal is to argue manifest 

constitutional error (RAP 2.5(a)), or ineffective assistance of counsel. Ms. Brown does 

 

3 Defense counsel used a peremptory challenge to strike juror 27 because of his 

demeanor. During voir dire when juror 27 indicated that body language would help to 

determine if someone was telling the truth, defense counsel noted, “I can tell you’re not 

happy I called on you; right?” RP at 405.
No. 37645-1-III; No. 37718-1-III

State v. Brown

6

not argue manifest constitutional error for this issue. Even if she did, invited error would 

preclude review of a constitutional error to which Ms. Brown contributed. See State v. 

Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009). Recognizing this doctrine, Ms. 

Brown argues that her trial counsel was ineffective for failing to argue the modified 

Batson test. 

Ineffective Assistance of Counsel

Both the United States and Washington Constitutions guarantee a criminal 

defendant the right to effective assistance of counsel. State v. Lopez, 190 Wn.2d 104, 

115, 410 P.3d 1117 (2018); see also U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. 

Courts indulge in a strong presumption that counsel is effective. State v. McFarland, 127 

Wn.2d 322, 334-35, 899 P.2d 1251 (1995). “To demonstrate ineffective assistance of 

counsel, a defendant must make two showings: (1) defense counsel’s representation was 

deficient, i.e., it fell below an objective standard of reasonableness based on 

consideration of all the circumstances; and (2) defense counsel’s deficient representation 

prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id.; 

see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984). The defendant has the burden to show that counsel’s performance was deficient 

based on the trial court record. McFarland, 127 Wn.2d at 335. Specifically, “the 
No. 37645-1-III; No. 37718-1-III

State v. Brown

7

defendant must show in the record the absence of legitimate strategic or tactical reasons 

supporting the challenged conduct by counsel.” Id. at 336. 

Ms. Brown argues that her trial attorney was ineffective because he failed to

recognize and argue current case law, i.e., Jefferson’s modification of Batson. While 

defense counsel’s failure to discover relevant case law is generally considered deficient, 

the failure to raise a novel legal theory is not. See State v. Kyllo, 166 Wn.2d 856, 868, 

215 P.3d 177 (2009) (counsel failed to discover relevant case law before proposing jury 

instructions); State v. Clark, 17 Wn. App. 2d 794, 799, 487 P.3d 549 (2021), review 

denied, 198 Wn.2d 1033, 501 P.3d 132 (2022). To determine whether counsel was 

constitutionally deficient for failing to argue Jefferson, we must consider whether and to 

what extent Jefferson is relevant to an objection to peremptory challenges based on 

gender bias. 

The General Rule on Discrimination under Batson

Historically, the Batson test was developed to determine whether the peremptory 

strike of a venire person was impermissibly motivated by race. Jefferson, 192 Wn.2d 

at 231. When an objection is raised, the trial court applies the three-step Batson test:

First, the defendant must establish a prima facie case that “gives rise to an 

inference of discriminatory purpose.” Batson, 476 U.S. at 94. Second, if a 

prima facie case is made, the burden shifts to the prosecutor to provide an 

adequate, race-neutral justification for the strike. Id. Finally, if a raceneutral explanation is provided, the court must weigh all relevant 

circumstances and decide if the strike was motived by racial animus.
No. 37645-1-III; No. 37718-1-III

State v. Brown

8

City of Seattle v. Erickson, 188 Wn.2d 721, 726-27, 398 P.3d 1124 (2017).

In 1992, Washington applied Batson to gender-based discrimination in the use of 

peremptory challenges. State v. Burch, 65 Wn. App. 828, 830 P.2d 357 (1992). Two 

years later the Supreme Court followed suit in J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), holding that the equal protection clause 

forbids intentional discrimination in jury selection on the basis of gender. 

While Batson set the standard for deciding whether a peremptory strike was based 

on purposeful discrimination, our Supreme Court began to recognize that “a growing 

body of evidence shows that racial discrimination remains rampant in jury selection.” 

State v. Saintcalle, 178 Wn.2d 34, 35, 309 P.3d 326 (2013) (plurality opinion), abrogated 

on other grounds by Erickson, 188 Wn.2d 721. Whereas Batson addressed purposeful 

discrimination, “racism is often unintentional, institutional, or unconscious.” Id. at 36. 

GR 37

To address Batson’s shortcoming, the Supreme Court adopted a new court rule. In 

2017, the court created a workgroup to finalize a new court rule that would address the 

shortcomings of Batson. See PROPOSED NEW GR 37—JURY SELECTION WORKGROUP,

FINAL REPORT (Final Report).

4

 The final product of this workgroup was GR 37, which 

became effective in 2018. 

 

4

 https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%

20Orders/OrderNo25700-A-1221Workgroup.pdf.
No. 37645-1-III; No. 37718-1-III

State v. Brown

9

The rule expands the third step of the Batson test. Instead of a court deciding if 

the peremptory challenge was motivated by racial animus, the court must decide whether 

“an objective observer could view race or ethnicity as a factor in the use of the 

peremptory challenge . . . .” GR 37(e). If the court so finds, then the peremptory 

challenge must be denied. See State v. Lahman, 17 Wn. App. 2d 925, 934, 488 P.3d 881 

(2021). While GR 37 expands the Batson test, it is specifically limited to bias and 

discrimination based on race and ethnicity. Although gender bias was discussed within 

the workgroup that developed the rule, gender bias was left out of GR 37 with a 

recommendation that it should be added at a later date after thoughtful consideration. 

See Final Report at 5.

State v. Jefferson

In Jefferson, the court addressed racial bias in jury selection under the Batson rule. 

At the time of Jefferson’s trial, GR 37 was not in effect. Jefferson objected to the State’s 

use of a peremptory challenge to remove the only African-American juror on the jury 

venire, arguing that the strike was racially motivated. After applying a traditional Batson

analysis, the court found that the State provided a race-neutral justification for striking 

the juror. The Supreme Court upheld the trial court’s finding, concluding that under 

Batson it was not clear error. Jefferson, 192 Wn.2d at 238-39. 

Nonetheless, the Supreme Court went on to find that, “Our current Batson

test does not sufficiently address the issue of race discrimination in juror selection.” 
No. 37645-1-III; No. 37718-1-III

State v. Brown

10

Id. at 239. After reviewing the history of racial discrimination in jury selection and the 

difficulty of proving explicit and implicit bias under Batson, the court exercised its power 

to adopt a new analysis under the third step of the Batson test. While finding that GR 37 

did not explicitly apply to Jefferson’s appeal,

5

the court modified the third step of the 

Batson test to incorporate GR 37’s structure. Under the new test, “the relevant question 

is whether ‘an objective observer could view race or ethnicity as a factor in the use of the 

peremptory challenge.’ If so, then the peremptory strike shall be denied.” Jefferson, 

192 Wn.2d at 249 (quoting GR 37(e)). 

Whether Counsel’s Failure to Raise Jefferson was Constitutionally Deficient

The question before us in Ms. Brown’s case is whether her attorney was 

constitutionally deficient for failing to argue that the holding in Jefferson applies to 

Batson challenges based on gender. In light of our overview of Batson, GR 37, and 

Jefferson, we hold that Ms. Brown’s trial attorney was not constitutionally deficient for 

failing to argue Jefferson’s application to an objection based on gender bias. 

Jefferson’s test was explicitly limited to race and ethnicity. While gender was not 

before the Jefferson court, it was a consideration in the drafting and adoption of GR 37. 

 

5

 While GR 37 was in effect by the time the court considered Jefferson’s appeal, 

the court held that the rule could not be applied retroactively and was not in effect at the 

time of Jefferson’s jury trial. Jefferson, 192 Wn.2d at 249. Thus, the issue of racial bias 

in jury selection was reviewed under a constitutional analysis and not under the court 

rule. Id.
No. 37645-1-III; No. 37718-1-III

State v. Brown

11

As the State points out, GR 37 does not apply to gender or any other protected status 

covered by the equal protection clause and our state constitution. Jefferson expanded 

Batson by specifically adopting GR 37’s test for determining whether race or ethnicity 

could be a factor in a peremptory strike of a juror.

On appeal, Ms. Brown concedes that GR 37 does not apply to her objection based 

on gender bias. She also recognizes that Jefferson was likewise limited to race and 

ethnicity. Without citation to any direct authority, she contends that “gender-based 

peremptory challenges must be evaluated with the same standards applied to race and 

ethnicity set out in GR 37 and State v. Jefferson, supra.” Am. Opening Br. of Appellant

at 23. Her argument—that the standard set forth in Jefferson for race and ethnicity must 

also apply to gender—is novel because there is no authority to support this specific 

argument. GR 37 and the holding in Jefferson are based on a demonstrated history of 

Batson’s inability to move the needle on racial and ethnic bias in jury selection. Ms. 

Brown fails to demonstrate that racial and gender bias are so similar that they are merely 

interchangeable. If such were the case, gender would likely have been included in 

GR 37’s inaugural version. Because it is not clear that Jefferson’s holding applies to 

Batson objections based on gender, any argument to this effect necessarily suggests an 

extension of existing law. In other words, a new rule or a novel argument. 

To be clear, we do not hold that the modified Batson test does not apply to gender 

bias or that GR 37 will not be modified in the future to include gender or other protected 
No. 37645-1-III; No. 37718-1-III

State v. Brown

12

classes. Instead, the issue before us is very narrow: whether counsel is constitutionally 

deficient for failing to make this argument at trial. An attorney’s failure to raise novel 

legal theories or arguments is not ineffective. Clark, 17 Wn. App. 2d at 799 (quoting 

State v. Brown, 159 Wn. App. 366, 371, 245 P.3d 776 (2011)). Since Ms. Brown’s 

attorney did not raise Jefferson below but instead invited the court to apply Batson to her 

objection, we will review the trial court’s decision under a traditional Batson analysis. 

Application of Batson to This Case 

As noted above, the trial court applies a three-part Batson test. First, the defendant 

must demonstrate a prima facie case of purposeful discrimination. Burch, 65 Wn. App. at 

840. This is done by showing both that a peremptory challenge of a venire person was 

exercised against a member of a constitutionally protected group and that “other relevant 

circumstances raise an inference” that the challenge was based on that group 

membership. Id. In deciding whether a party has demonstrated a prima facie case, the 

trial court “‘should consider all relevant circumstances’, including a ‘pattern’ of strikes 

against members of a constitutionally cognizable group and the ‘prosecutor’s questions 

and statements during voir dire examination.’” Id. (quoting Batson, 476 U.S. at 96-97). 

Other relevant circumstances include whether disproportionate use of strikes is used 

against a specific group. State v. Wright, 78 Wn. App. 93, 99-100, 896 P.2d 713 (1995). 

In this case, the trial court did not make a preliminary finding of a prima facie case 

of discrimination. Instead, the court immediately asked the State for a gender-neutral 
No. 37645-1-III; No. 37718-1-III

State v. Brown

13

explanation. Since the State provided an explanation and the court ruled on the ultimate 

question of intentional discrimination, the preliminary issue of a prima facie showing 

becomes moot.

6

 See id. at 101. 

The second step of the Batson test requires the striking party to provide a genderneutral reason for striking jurors. Burch, 65 Wn. App. at 840. The explanation must be 

clear and reasonably specific. Id. Citation to a venire person’s specific responses and 

demeanor during voir dire may constitute a neutral explanation for exercising a 

peremptory challenge. Id.

In response to the trial court’s invitation, the State asserted that its peremptory 

challenges were based on demeanor and the responses given by each challenged juror and 

not based on gender. The State then went through each of the six stricken jurors and 

provided a reason for the strike. Specifically, the State noted that juror 17 expressed 

views on firearms and self-defense that caused concerns and comments that made the 

State believe she might not follow the law as instructed. Juror 22 made comments about

weighing the credibility of witnesses along with presumptions and the burden of proof 

that raised concerns for the State. Juror 36 indicated that she was an alcoholic and made 

comments about the use of firearms that the State thought were unfavorable. Juror 41 

 

6

In order to avoid collapsing the Batson test, courts should not elicit the State’s 

gender-neutral explanation until it has made a preliminary determination that the 

challenger has demonstrated a prima facie showing of discrimination. Wright, 78 Wn. 

App. at 100-01.
No. 37645-1-III; No. 37718-1-III

State v. Brown

14

seemed sympathetic to recalling events in a way that was more favorable to the defense 

theory of the case. 

The State noted that it thought juror 32’s body language and posture were not 

favorable when questioned by the State. And while the State could not recall the exact 

reason it struck juror 34, it did indicate that she appeared uncomfortable and nervous 

during questioning. The State concluded by noting that it did not exercise all of its 

peremptory challenges and could have removed more women if that was its intent. 

In response, defense counsel noted that statistically it was improbable that six 

women would be struck unless the strikes were based on gender. “I think that the 

standard under Batson is still conscious bias, not implicit bias as it is under Rule 37. I’m 

not sure if that standard is met in this case, but it certainly gave me concern when I noted 

that all six individuals were female.” RP at 476. Counsel also argued that the State’s 

explanations were not necessarily unique and could apply to other jurors left on the panel. 

Finally, counsel acknowledged having notes that corroborated some of the State’s reasons 

(without indicating which reasons), but invited the court to make its own comparison and 

then ultimately left it to the court’s discretion on how to proceed. 

The third step of the Batson test requires the trial court to determine if the 

defendant has established purposeful discrimination. Jefferson, 192 Wn.2d at 232. Here, 

the trial court made the following findings:
No. 37645-1-III; No. 37718-1-III

State v. Brown

15

I’m persuaded that while the State’s six peremptory challenges were used 

on women, I would note first that the rationales given are consistent with 

the record, and importantly, had Juror Number 27, . . . been kept on the 

jury, that would have undermine[d] the State’s rationale because he 

appeared to be nervous and uncomfortable and not enjoying the process at 

all. However, the defense did strike him; and the fact that at the end of the 

day he was not left on by the State further supports the State’s gender 

neutral rationales. 

I’m persuaded that there is a nondiscriminatory basis given for each 

of the jurors stricken. That said, each party has an obligation to bring the 

challenge if they think it’s appropriate and each party challenged has the 

obligation to defend their choices. 

On this record, the court is satisfied and those jurors will remain. 

As I indicated here, the State had a seventh challenge which it could 

have used to remove a woman and it decline[d] to do so, further confirming 

the court’s conclusion. 

So the challenge is respectfully denied.

RP at 477-78.

Since these findings depend on the trial court’s determination of the credibility of 

the attorneys and jurors, we review them to determine if the findings are clearly 

erroneous. See Burch, 65 Wn. App. at 840-41; State v. Rhodes, 82 Wn. App. 192, 196-

97, 917 P.2d 149 (1996); Jefferson, 192 Wn.2d at 234. In determining whether the 

defendant has shown purposeful discrimination, we consider all the relevant evidence. 

Erickson, 188 Wn.2d at 727. This includes whether the strikes disproportionately affect a 

certain group, the level of group representation in the venire as compared to the jury, the 

gender of the defendant and victim, the type and manner of the State’s questions during 

voir dire, and similarities between those struck and individuals seated on the jury. 

Wright, 78 Wn. App. at 99-100. 
No. 37645-1-III; No. 37718-1-III

State v. Brown

16

After considering these factors and the circumstances of this case, we do not find 

that the trial court’s finding was clear error. Statistically, the State’s use of six 

peremptory challenges on women was disproportionate, but the numbers are not 

necessarily dispositive. The State waived its last peremptory, which could have been 

used to remove another woman. And Ms. Brown exercised five of her seven peremptory 

challenges on men. In the end, there were 9 men and 5 women on the jury. The original 

venire consisted of 88 persons, 46 men, and 42 women. 

Ms. Brown argues that the State’s reasons for excusing jurors 32 and 34 based on 

body language were disingenuous because juror 27, a male, also seemed nervous. But as 

the trial court noted, Ms. Brown herself struck juror 27 before the State had finished 

exercising its peremptory challenges. In other words, we do not know if the State would 

have left juror 27 on the panel despite similarities with jurors 32 and 34. And while the 

State could not recall its exact concerns about juror 34, the record indicates that she did 

not “fully agree” with the self-defense standard of using proportionate force and, if faced 

with a perceived threat, would “do what needs to be done” to “take care of” any threats to 

her family even if that means “going over.” RP at 426. The trial court found that the 

record supported the State’s observations. At the time this finding was made, the venire 

was still empaneled. Ms. Brown did not request further attempts to observe or examine 

jurors 32 or 34. 
No. 37645-1-III; No. 37718-1-III

State v. Brown

17

On appeal, Ms. Brown attempts to demonstrate that these explanations were 

merely subterfuge because other jurors provided similar responses. For instance, in 

response to the State’s concerns about juror 36, she points to jurors 3 and 33 who 

experienced alcohol issues either themselves or with a family member. But neither of 

these jurors had issues with guns. While juror 26, a male, expressed “Pro 2nd

Ammendment [sic]”

7 opinions, unlike juror 17, he did not indicate it could cause him to 

be biased. Although we agree that there are some similarities between the seated and 

eliminated venire members, the responses of each juror are sufficiently unique to support 

the trial court’s finding. 

Finally, the record also supported the State’s gender-neutral explanations for 

striking the other four jurors. Juror 17 was equivocal, answering “possibly,” when asked 

if her strong opinions on firearms could cause her to be biased. CP at 466. Juror 22 did 

not know if witnesses could take the stand and not tell the truth and did not know what to 

look for in deciding the credibility of a witness. Juror 36 acknowledged that her strong 

opinions about firearms might cause her to be biased, depending on the situation. She 

was also unsure if her experience as a recovering addict would influence her ability to be 

impartial. Juror 41 was an Air Force sergeant and indicated that in her experience, 

 

7 CP at 538.
No. 37645-1-III; No. 37718-1-III

State v. Brown

18

persons dealing with fatigue had more disciplinary and communication issues. Ms. 

Brown does not suggest that these reasons are biased.

8

 

Conclusion

After properly applying Batson to the State’s peremptory challenges to six female 

jurors, the trial court found that the record supported the nondiscriminatory reasons. 

After reviewing the record and conducting our own analysis, we hold that the trial court’s 

finding was not clearly erroneous. 

B. SELF-DEFENSE JURY INSTRUCTIONS

In her second issue on appeal, Ms. Brown argues that her trial attorney was 

constitutionally ineffective for proposing a jury instruction on self-defense that Ms. 

Brown claims had the effect of lowering the State’s burden to disprove self-defense. 

At trial, Ms. Brown did not deny killing Ms. Hill. Instead, she argued and testified 

that the killing was in self-defense. Both defense counsel and the State proposed several 

instructions on self-defense, including 11 Washington Practice: Washington Pattern Jury 

Instructions: Criminal 16.02 (general self-defense), 16.03 (felony justifiable homicide), 

 

8 On appeal, Ms. Brown contends that the trial court applied the wrong standard in 

step three because the court indicated that it was “persuaded that there is a 

nondiscriminatory basis given for each of the jurors stricken.” RP at 478. Ms. Brown 

argues that the test is not whether the reasons given were nondiscriminatory, but whether 

the trial court is actually convinced that the strikes were nondiscriminatory. This 

argument is splitting hairs. It is clear that the trial court was persuaded that the strikes 

were not based on discriminatory reasons. 
No. 37645-1-III; No. 37718-1-III

State v. Brown

19

16.07 (act on appearances), along with a definition of strangulation, at 261, 267, 274 

(5th ed. 2021) (WPIC). The court accepted the unmodified WPIC instructions. 

These WPIC instructions generally mirrored the statute and common law on selfdefense. Jury instruction 12 (WPIC 16.02) included language from RCW 9A.16.050(1) 

and jury instruction 14 (WPIC 16.03) included language from RCW 9A.16.050(2) as 

modified by case law. In addition, the court instructed the jury that a person has the right 

to stand her ground (jury instruction 20) and could act on appearances even if their 

perception was incorrect (jury instruction 19):

A person is entitled to act on appearances in defending herself, if 

that person believes in good faith and on reasonable grounds that she is in 

actual danger of great personal injury, although it afterwards might develop 

that the person was mistaken as to the extent of the danger.

Actual danger is not necessary for a homicide to be justifiable.

CP at 195. Finally, the court defined “great personal injury” (jury instruction 13) and 

felony to include assault by strangulation or suffocation (jury instructions 15 and 16). 

CP at 189, 191-92.

On appeal, Ms. Brown challenges the instructions on self-defense as misstating the 

law. Specifically, she contends that “[u]nlike RCW 9A.16.050(1), RCW 9A.16.050(2) 

does not require the slayer reasonably to fear great personal danger.” Am. Opening Br.

of Appellant at 42. She continues that since jury instruction 19, “act on appearances,” 

was not limited to self-defense under the first alternative of the statute, the jury could 

have been misled to believe that Ms. Brown needed to be in fear of great bodily injury 
No. 37645-1-III; No. 37718-1-III

State v. Brown

20

before she could use a lethal level of force to defend against a felony assault already in 

progress. 

Not only did Ms. Brown fail to raise this objection below, but she proposed the 

instructions she now claims are defective. Generally, objections to jury instructions must 

be made at trial or they are considered waived. RAP 2.5(a). An erroneous self-defense 

jury instruction may be challenged for the first time on appeal if it constitutes a manifest 

constitutional error. Kyllo, 166 Wn.2d at 862. But even errors of a constitutional 

magnitude will not be reviewed when they are invited. City of Seattle v. Patu, 147 Wn.2d 

717, 720, 58 P.3d 273 (2002). Only in the context of ineffective assistance of counsel 

may deficient instructions proposed by defense counsel be considered for the first time on 

appeal. State v. Rodriguez, 121 Wn. App. 180, 184, 87 P.3d 1201 (2004) (quoting State 

v. Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512 (1999)).

The test for determining whether counsel is constitutionally ineffective is set forth 

above. Essentially, Ms. Brown needs to demonstrate that her attorney’s actions were 

deficient, and the deficiency caused prejudice. McFarland, 127 Wn.2d at 334-35. 

Proposing a detrimental instruction, even when it is a WPIC, may constitute ineffective 

assistance. Aho, 137 Wn.2d at 745-46. Claims of ineffective assistance of counsel 

present mixed questions of law and fact and are reviewed de novo. Lopez, 190 Wn.2d at 

116-17. Whether jury instructions sufficiently state the law is also reviewed de novo. 

State v. Clark-El, 196 Wn. App. 614, 619, 384 P.3d 627 (2016). 
No. 37645-1-III; No. 37718-1-III

State v. Brown

21

Instructions are sufficient if they permit each party to argue their side of the case, 

are not misleading, and when read as a whole, properly inform the jury of the applicable 

law. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). Self-defense instructions 

must do more. Rodriguez, 121 Wn. App. at 185. Read as a whole, they must make the 

relevant legal standard manifestly apparent to the average juror. Id.

Law on Self-Defense

To determine if Ms. Brown’s attorney proposed a detrimental jury instruction on 

self-defense, we must consider the law on self-defense. Homicide is justifiable when 

committed either:

(1) In the lawful defense of the slayer, . . . when there is 

reasonable ground to apprehend a design on the part of the person slain to 

commit a felony or to do some great personal injury to the slayer . . . , and 

there is imminent danger of such design being accomplished; or 

(2) In the actual resistance of an attempt to commit a felony upon 

the slayer . . . .

RCW 9A.16.050. Here, both alternatives of justifiable homicide from RCW 9A.16.050 

were provided to the jury, so the State was required to disprove both means. As 

explained in State v. Brightman, whereas RCW 9A.16.050(1) concerns a reasonable fear 

that the person slain is about to commit a felony or inflict great bodily injury, subsection 

(2) “addresses situations in which a felony or attempted felony is already in progress.” 

155 Wn.2d 506, 521, 122 P.3d 150 (2005).
No. 37645-1-III; No. 37718-1-III

State v. Brown

22

In Brightman, the defendant was convicted of second degree murder. At trial, he 

claimed that the victim was in the process of robbing him when he shot the victim during 

the struggle. The defendant acknowledged, however, that he had no fear of the victim 

during the struggle over a small amount of money. Based on these facts, the superior 

court refused to instruct the jury on justifiable homicide to resist a felony in progress 

pursuant to RCW 9A.16.050(2). On appeal, Brightman raised the exact argument that 

Ms. Brown raises in this case, claiming that “when a defendant has acted in actual 

defense of an attempted violent felony, he or she need not show fear of great bodily harm 

or death in order to receive a justifiable homicide instruction.” Brightman, 155 Wn.2d at 

518-19. The Supreme Court rejected Brightman’s argument, as we reject Ms. Brown’s. 

In Brightman, the court held that not only must deadly force be reasonable, it must 

also be necessary. Id. at 520. “Justifiable homicide, and indeed all self-defense, is 

unmistakably rooted in the principle of necessity. Deadly force is necessary only where 

its use is objectively reasonable, considering the facts and circumstances as they were 

understood by the defendant at the time.” Id. at 521. Quoting its prior decision in State 

v. Nyland, 47 Wn.2d 240, 243, 287 P.2d 345 (1955), the court noted that “‘a killing in 

self-defense is not justified unless the attack on the defendant’s person threatens life or

great bodily harm.’” Brightman, 155 Wn.2d at 522. Thus, even when a person is being 

attacked, the amount of force used must be reasonably necessary in light of the 

circumstances. Id. Because Brightman admitted that he did not fear the victim, lethal 
No. 37645-1-III; No. 37718-1-III

State v. Brown

23

force was not necessary, and the trial court was justified in refusing to give the selfdefense instruction. Id. 

The holding in Brightman dispels Ms. Brown’s argument that self-defense under 

RCW 9A.16.050(2) does not require the slayer to reasonably fear great personal injury 

before using deadly force. Without acknowledging the holding in Brightman, Ms. Brown 

relies on State v. Ackerman, 11 Wn. App. 2d 304, 453 P.3d 749 (2019). In Ackerman, 

Division One of this court held that under RCW 9A.16.050(2), the use of deadly force to 

resist a robbery may be reasonable even if there is no reasonable belief of imminent 

danger of death or great personal injury. Ackerman, 11 Wn. App. 2d at 314-15. The 

Ackerman court limited Brightman’s holding to a requirement that force used in response 

to a felony in progress be reasonable. Id. at 314. But Brightman also held that the force 

used must be necessary and when the force is lethal, it is only necessary when used to 

defend against a threat to life or great bodily harm. 155 Wn.2d at 522. 

We conclude that Brightman is controlling and decline to follow Ackerman. 

See 13B, SETH A. FINE, WASHINGTON PRACTICE: CRIMINAL LAW AND SENTENCING, 

§ 41:6 (3d ed. & Supp. 2021) (Judicial interpretation—Self-defense—Deadly force) 

(recognizing that Ackerman’s holding conflicts with Brightman). Because Brightman

held that lethal force must be reasonably necessary, and necessary means in response to a 

perceived threat to life or great personal injury, we conclude that the unmodified WPIC 
No. 37645-1-III; No. 37718-1-III

State v. Brown

24

instructions in this case accurately reflected the law on self-defense. Thus, Ms. Brown’s 

attorney was not constitutionally deficient in proposing these instructions. 

C. ADMISSION OF PHOTOGRAPH WITH CHILD

In her third issue on appeal, Ms. Brown challenges the trial court’s admission of a 

photograph of the victim with her child. Ms. Brown contends that the trial court abused 

its discretion because the photograph was irrelevant and unduly prejudicial. 

The State admitted numerous scene photos of Ms. Hill’s body and autopsy photos 

at trial. Ms. Brown admitted photos of Ms. Hill’s body and a 2017 photo of Ms. Hill with 

Ms. Brown and her family members. The State also sought to admit a photo of Ms. Hill 

with her son from 2007-08 as an “in-life” photo. Ex. 1. Taken 10 years before the 

charged incident, the boy appears to be three years old in the photo. Defense counsel 

objected on four grounds: late disclosure, authentication, relevancy, and eliciting an 

emotional response. Only the relevancy and eliciting emotional response grounds are 

before us on appeal. 

The State claimed that the “in-life” photo of Ms. Hill was the only one provided to 

the State by her family. The court also acknowledged that the State was not required to 

accept a stipulated photo from Ms. Brown. The court found the photo to be relevant “in 

the first instance to show identity.” RP at 491. The court did not find the photo 

inherently prejudicial since many other autopsy photos with greater prejudicial value had 

been admitted. The trial court then considered the specifics of the photo of Ms. Hill and
No. 37645-1-III; No. 37718-1-III

State v. Brown

25

her child being a time in the past and allowed the admission of the photo and 

acknowledged concerns of evoking an unfair emotional response. The court concluded:

[H]aving in mind the photographs intended to be submitted and having in 

mind provisionally that at least some of those photographs would be 

considered relevant and admissible, and the way in which they depict the 

deceased, in combination with the fact here that the anticipated evidence 

will be that the defendant, Ms. Brown, is also a mother and that her child 

will be the subject of at least some testimony, mitigates the prejudice of the 

decedent being depicted with a child herself. 

And so while this court believes that the potential for prejudice of 

the picture with the child is at least as great as the pictures with K9s [pets]

or with a larger family depicted. Under these circumstances, in light of the 

existing case law, this court cannot find that it is unduly prejudicial in light 

of the other anticipated evidence.

. . . [A]dmission is appropriate.

RP at 493-94. 

Washington courts have long upheld the admission of prejudicially gruesome 

photos of murder victims. State v. Gentry, 125 Wn.2d 570, 607-09, 888 P.2d 1105 

(1995); State v. Lord, 117 Wn.2d 829, 870-71, 822 P.2d 177 (1991). Where such photos 

have been admitted, photos showing the decedent as a living, breathing person are often 

admitted to counterbalance the death images. “The admission of in-life photographs lies 

within the discretion of the trial court.” State v. Finch, 137 Wn.2d 792, 811, 975 P.2d 

967 (1999) (upheld admission of photo of “in-life” photo of the deceased with his seeingeye dog). In-life photos are relevant to establish the identity of a victim. Id. 

After relevance is established, the trial court determines whether any unfair 

prejudice to the defendant outweighs the probative value of the photo. Id. Where a jury 
No. 37645-1-III; No. 37718-1-III

State v. Brown

26

has seen postmortem photos of the decedent’s body, in-life photos are not inherently 

prejudicial. State v. Furman, 122 Wn.2d 440, 452, 858 P.2d 1092 (1993). “The State 

need not accept a stipulation as to identity and may insist on proving the issue in the 

manner it wishes.” Finch, 137 Wn.2d at 811. A reviewing court will only reverse 

evidentiary error where there is a reasonable probability that the error materially affected 

the outcome of the trial. State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997).

Contrary to Ms. Brown’s argument that the photograph was irrelevant, in-life 

photographs are relevant to show the victim’s identity. Finch, 137 Wn.2d at 811. Ms.

Brown argues that even if relevant, the aged photograph of the victim with her young son 

was unduly prejudicial. She raises three theories in support of this argument. First, she 

contends that the photograph was part of the State’s litigation strategy based on sexist 

stereotypes intended to provoke chivalrous notions by male jurors. We find no evidence 

of this claim and dismiss it outright. 

Second, she contends that the photograph of the victim and her son was intended 

to provoke an emotional response. In Finch, the Supreme Court held that admission of 

in-life photographs of a murder victim with his seeing-eye dog was not unduly 

prejudicial. Id. at 811-12. The Finch court noted that the in-life photograph was just a 

fraction of the many exhibits admitted and the seeing-eye dog was part of the victim’s 

identity. 
No. 37645-1-III; No. 37718-1-III

State v. Brown

27

Likewise, in this case, the single in-life photograph of the victim with her son was 

one of many gruesome crime scene and autopsy photographs admitted by both parties, 

and the jury was already aware from testimony that both Ms. Brown and the victim had 

children. We conclude that the trial court did not abuse its discretion in finding that the 

in-life photograph of the victim with her son was relevant and not unduly prejudicial. 

Ms. Brown’s third theory of prejudice is that the State compounded the error in 

closing argument by superimposing a caption over the photograph with the word 

“Murdered.” Am. Opening Br. of Appellant, App. C (Trial Ex. B). This argument is not 

necessarily about the photograph itself as much as it argues prosecutorial misconduct, 

which we review in turn. 

D. PROSECUTOR’S MISCONDUCT IN CLOSING

Ms. Brown’s fourth argument on appeal is that the prosecutor committed 

misconduct in closing arguments by shifting the burden of proof and appealing to 

emotion. Specifically, she raises four allegations, arguing that the State committed 

misconduct by (a) commenting in opening that everyone was present because of Ms. 

Brown, (b) using a PowerPoint photo of the victim with her child labeled “Murdered” in 

closing, (c) calling the defense theory a “claim” throughout trial, and (d) calling Ms. 

Brown’s actions “stupidity.” 

At the beginning of its closing argument, the State displayed the in-life photograph 

of the victim with the words “Amanda Hill” and “Murdered” superimposed on the 
No. 37645-1-III; No. 37718-1-III

State v. Brown

28

photograph. Am. Opening Br. of Appellant, App. C. The State began its closing 

argument by commenting that “we are all here because of defendant, Amy Brown. More 

importantly, though, we are here because who could not be here today? Amanda Hill. 

Amanda Hill is not here because she was murdered by the defendant, Amy Brown.” 

RP at 1559. 

While arguing its theory of the case, the State asserted that the evidence did not 

support Ms. Brown’s version of events and indiscriminately referred to her testimony and 

theory of defense as a “claim.” “What’s at issue is the defendant’s claim that she used 

self-defense . . . .” RP at 1561. “[A]ll the evidence points in a different direction. What 

that means then is that that didn’t happen in the way that she claimed.” RP at 1573. In 

concluding comments, the State said that Ms. Brown “assaulted her best friend after 

catching her in bed with her fiancée. It was in no way an act of self-defense, it was an act 

of jealousy and anger and stupidity.” RP at 1602. 

Ms. Brown did not make any objections during closing. After the State completed 

its closing argument, Ms. Brown moved for a mistrial citing the emotional appeal of the 

child in the exhibit 1 “in-life photo,” the statement that “the only person still alive is Ms. 

Brown,” and the State’s use of the word “stupidity.” RP at 1576, 1602. She did not 

object to the use of the word “Murdered.” She did not object to the State’s use of the 

word “claim,” which appeared five times during closing. The court denied Ms. Brown’s 

motion for a mistrial. On appeal, Ms. Brown raises four instances as evidence of 
No. 37645-1-III; No. 37718-1-III

State v. Brown

29

prosecutorial misconduct but does not assign error to the trial court’s denial of her motion 

for a mistrial. 

“‘In order to establish prosecutorial misconduct, a defendant must show that the 

prosecutor’s conduct was both improper and prejudicial in the context of the entire record 

and the circumstances at trial.’” State v. Slater, 197 Wn.2d 660, 681, 486 P.3d 873 

(2021) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191, 

189 P.3d 126 (2008) (plurality opinion)). A defendant’s failure to object waives the 

error, and we will reverse for prosecutorial misconduct during closing only if “the remark 

is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that 

could not have been neutralized by an admonition to the jury.” State v. Russell, 125 

Wn.2d 24, 86, 882 P.2d 747 (1994). “In other words, a conviction must be reversed only 

if there is a substantial likelihood that the alleged prosecutorial misconduct affected the 

verdict.” Id. 

Ms. Brown failed to object to any of these arguments as they were being made. 

After the State finished its closing argument, and before defense counsel began his 

closing argument, Ms. Brown’s attorney asked for a sidebar and listed several objections, 

including the State’s use of the photograph and the State’s comment about “stupidity.” In 

denying Ms. Brown’s motion for a mistrial, the court noted that the photograph was 

displayed for a short time. Ms. Brown’s objections, lodged after the State had finished 

closing arguments, are insufficient to preserve the issue. Objections during closing 
No. 37645-1-III; No. 37718-1-III

State v. Brown

30

arguments are necessary to correct the error, prevent it from reoccurring, and to prevent 

abuse of the appellate process. State v. Emery, 174 Wn.2d 741, 761-62, 278 P.3d 653 

(2012). Following her multiple objections, Ms. Brown did not ask for a curative 

instruction. She asked for a mistrial. While an objection made after the State’s closing 

argument may prevent it from happening during rebuttal, Ms. Brown did not ask for 

corrective action at trial. 

Everyone Present Because of Ms. Brown

Ms. Brown’s first contention is that the State committed misconduct by opening 

with the comment that “we are all here because of the defendant, Amy Brown. More 

importantly, though, we are here because who could not be here today? Amanda Hill. 

Amanda Hill is not here because she was murdered by the defendant, Amy Brown.” 

RP at 1559. On appeal, Ms. Brown argues that this comment suggests that the trial is Ms. 

Brown’s fault instead of acknowledging that the State was responsible for the trial by 

filing charges. 

Ms. Brown’s characterization of the State’s comment is not evident from the 

record. The State is entitled to argue its theory of the case. It is clear that the State’s 

theory was that Ms. Brown murdered Amanda Hill and her actions were not done in selfdefense. There is nothing improper about making this argument. The record does not 

support Ms. Brown’s characterization of the comment as blaming her for the trial. 

Although it is hard to determine tone, inflection, and emphasis from the record, if there 
No. 37645-1-III; No. 37718-1-III

State v. Brown

31

was a concern that the comment was inflammatory as suggested on appeal, Ms. Brown 

should have objected so that the trial court could lay a record and provide corrective 

instructions if necessary. Otherwise, we see no error from the comment. 

Picture with “Murdered” Superimposed

Next, Ms. Brown contends the State committed misconduct by using the in-life 

photograph of Amanda Hill with her son and the caption “Murdered” superimposed on it. 

Ms. Brown contends the photograph and caption were an appeal to emotion. 

In In re Personal Restraint of Glasmann, the prosecutor’s closing argument relied 

extensively on a slide show presentation that superimposed captions on top of 

photographic evidence. 175 Wn.2d 696, 286 P.3d 673 (2012). The captions included 

phrases like “Guilty,” and “Do you believe him?” Id. at 706 (capitalization omitted). 

The court found that adding captions to the photographs amounted to unadmitted 

evidence. Id. The court also recognized that prior case law established that it “is 

improper to present evidence that has been deliberately altered in order to influence the 

jury’s deliberations.” Id. Because these standards were well known when the prosecutor 

in Glasmann intentionally presented altered photographs during closing argument, the 

court found the prosecutor’s misconduct to be flagrant and ill intentioned. Id. at 707. 

In addition to finding the misconduct flagrant, the court went on to find that the 

“misconduct here was so pervasive that it could not have been cured by an instruction.” 

Id. The court recognized that “‘[T]he cumulative effect of repetitive prejudicial 
No. 37645-1-III; No. 37718-1-III

State v. Brown

32

prosecutorial misconduct may be so flagrant that no instruction or series of instructions 

can erase their combined prejudicial effect.’” Id. (quoting State v. Walker, 164 Wn. App. 

724, 737, 265 P.3d 191 (2011), adhered to on remand, noted at 173 Wn. App. 1027, 

2013 WL 703974). 

In this case, we do not condone the use of captions on photographic evidence 

during closing. However, the trial court noted that the photograph was briefly displayed 

and not otherwise mentioned in closing. Any error was fleeting as opposed to pervasive 

and prejudicial. See State v. Walker, 182 Wn.2d 463, 472, 341 P.3d 976 (2015) (of the 

250 slides used in prosecutor’s closing, a significant number contained derogatory

comments and personal opinions of guilt). 

Calling Self-defense the Defendant’s “Claim”

Ms. Brown also contends that the State’s characterization of self-defense as Ms. 

Brown’s “claim” inferentially shifted the burden of proving self-defense to Ms. Brown. 

Again, the record does not support this characterization. Instead, the State used the term 

to reference Ms. Brown’s testimony and defense theory. Ms. Brown did not object to this 

term at trial and used it to refer to her own testimony and evidence. Ms. Brown’s 

attorney argued that there was evidence that supported “Ms. Brown’s claim,” about the 

location of evidence and “Ms. Brown’s claim of the events.” RP at 1587, 1591.

Ms. Brown testified during her trial that she shot Amanda Hill in self-defense. 

The State argued that the main issue for the jury was the defendant’s claim that she used 
No. 37645-1-III; No. 37718-1-III

State v. Brown

33

self-defense. There was no argument suggesting that Ms. Brown had the burden to prove 

self-defense. Instead, the jury was properly instructed on the defense and the State’s 

burdens. The record does not support Ms. Brown’s argument that the State used the term 

to shift the burden of proof on self-defense. 

Calling Ms. Brown’s Action “Stupidity”

Finally, Ms. Brown asserts that the State was appealing to the jury’s emotions by 

arguing that the murder of Ms. Hill “was an act of jealousy and anger and stupidity.” 

RP at 1602. After the State’s closing, Ms. Brown’s attorney moved for a mistrial, 

alleging several errors, including the State’s reference to the term “stupidity.” RP at 

1607. The State responded that it did not call Ms. Brown stupid. Instead, the State was 

attempting to paraphrase Ms. Brown’s own comments during her interview with law 

enforcement immediately after the shooting, when Ms. Brown repeatedly admitted that 

she had “fucked up.” RP at 1609. The court found that in light of the repeated use of 

profanity by the defendant in describing her own actions, the exchange of “stupidity” for 

“fucked up” was not unduly prejudicial. 

On appeal, Ms. Brown fails to acknowledge the State’s explanation and the trial 

court’s ruling. Nor does she assign error to the trial court’s denial of defense counsel’s 

motion for a mistrial based in part on the comment. We consider the issue waived. 

RAP 2.5(a). Even assuming this error had been properly preserved, we would review a 

trial court’s denial of a mistrial for abuse of discretion. State v. Whitney, 78 Wn. App. 
No. 37645-1-111; No. 37718-1-111 

State v. Brown 

506, 515, 897 P.2d 374 (1995). This is because the trial court is in the best position to 

assess whether a remark can be cured or is so prejudicial that it requires a new trial. 

State v. Dickerson, 69 Wn. App. 744, 748, 850 P.2d 1366 (1993). Here, in light of the 

State's explanation, the trial court did not abuse its discretion in denying Ms. Brown's 

motion for a mistrial. 

E. CUMULATIVE ERROR 

In her final assignment of error, Ms. Brown contends that cumulative error 

deprived her of a fair trial. The only possible error that we found was the State's 

modification of photographic evidence during closing. Because the error was not 

cumulative, we deny Ms. Brown's request for a new trial. 

CONCLUSION 

Finding no reversible error, we affirm Ms. Brown's conviction. 

Staab, J. 

WE CONCUR: 

Lawrence-Berrey, A. .J Pennell, J. 

34