FILED MARCH 18, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Personal Restraint of: ) No. 37057-7-III ) JOSEPH ANDREW RICHMOND, ) OPINION PUBLISHED IN PART ) Petitioner. )
PENNELL, C.J. — The use of animal analogies at trial is problematic. Many animal
comparisons operate as racist code. Others are simply dehumanizing. But there is no hard
and fast rule. Not all animal analogies are inherently improper. When a particular analogy
does not clearly convey an improper message, an appellate court should not be quick to
find offense. Instead, deference is owed to the assessments of the trial court and counsel.
Joseph Richmond has filed a petition for relief from conviction, arguing for the
first time that the State’s prosecutor used an improper animal analogy during closing
argument. Mr. Richmond fails to show the analogy was patently racist or dehumanizing.
The analogy, which compared Mr. Richmond to a hornet’s nest, was plausibly aimed
at describing Mr. Richmond’s erratic behavior. Given this possible interpretation, and
Mr. Richmond’s lack of objection at trial, post-conviction intervention is unwarranted.
Mr. Richmond’s request for relief from conviction is denied. No. 37057-7-III In re Pers. Restraint of Richmond
BACKGROUND
Joseph Richmond killed Dennis Higginbotham by striking him in the head with a
two-by-four wooden board. The State prosecuted Mr. Richmond with felony murder
predicated on first degree assault. At trial, Mr. Richmond claimed he was acting in self-
defense, arguing Mr. Higginbotham was coming at him with a knife. The State countered
that Mr. Richmond was the initial aggressor. The State presented evidence showing Mr.
Richmond was angry and irrational at the time of the assault. As such, his behavior was
not consistent with a claim of lawful self-defense.
In explaining its case, the prosecutor used a hornet’s nest analogy. The prosecutor
asked the jury, “have you ever heard the analogy, don’t poke a hornet’s nest with a
stick[?]” 6 Report of Proceedings (Feb. 9, 2016) (RP) at 1117, State v. Richmond, No.
34157-7-III (Wash Ct. App.). “Well, ladies and gentlemen, Joe Richmond is a hornet’s
nest. And you don’t need a stick to poke him to set him off.” Id. The hornet’s nest
analogy was repeated at various times throughout summation. In addition to referring to
Mr. Richmond as a hornet’s nest, the prosecutor described Mr. Richmond as “king of the
nest, “king of the world,” and “irrational.” Id. at 1118-19, 1123-24. The prosecutor’s
comments did not inspire a defense objection. The prosecutor concluded their thoughts
2 No. 37057-7-III In re Pers. Restraint of Richmond
by arguing the “[d]efendant is charged with murder in the second degree and the state
is asking you to find self-defense doesn’t apply to the hornet’s nest.” Id. at 1134.
The jury convicted Mr. Richmond of felony murder, rejecting his self-defense
claim. The conviction was upheld on appeal. State v. Richmond, 3 Wn. App. 2d 423,
437, 415 P.3d 1208 (2018).
Mr. Richmond has now filed a timely personal restraint petition (PRP). He argues
for the first time that the hornet’s nest analogy constituted prosecutorial misconduct.
Mr. Richmond also makes several challenges to the court’s jury instructions. In the
published portion of this opinion we address Mr. Richmond’s prosecutorial misconduct
claim. Our analysis of the instructional issues is set forth in the unpublished portion of
the opinion.
ANALYSIS
To succeed on a claim of prosecutorial misconduct, the defendant must show both
improper conduct and prejudice. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704,
286 P.3d 673 (2012) (plurality opinion). When a claim of misconduct is not raised at trial,
the defense must additionally show the prosecutor’s actions were “so flagrant and ill
intentioned that an instruction could not have cured the resulting prejudice.” State v.
Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). The hurdles to obtaining relief
3 No. 37057-7-III In re Pers. Restraint of Richmond
based on prosecutorial misconduct are purposefully high. Not every prosecutorial misstep
merits remand. Deference is instead owed to the trial court’s ability to oversee the
administration of justice, defense counsel’s judgment about whether an objection was
worth raising, and a jury’s ability to independently assess the merits of the case.
The first part of our prosecutorial misconduct analysis asks whether the State’s
conduct was improper. According to Mr. Richmond, animal analogies at trial are always
inappropriate. He asks us to “take this opportunity to hold that a prosecutor’s use of
animal imagery to describe a defendant on trial has no place in closing argument.”
PRP at 15. We decline this invitation. Animal imagery can sometimes be improper,
but not always. Context matters.
The most obvious problem with animal analogies is they can convey racist
sentiments. We discussed this issue in State v. Barajas, 143 Wn. App. 24, 39, 177 P.3d
106 (2007). The Barajas prosecutor compared the defendant’s conduct to that of a
“mangie [sic], mongrel mutt.” Id. These words tended to convey a derogatory message
about someone being “mixed race.” Id. As such, the prosecutor’s argument had the
capacity to cultivate juror bias and irrational thinking. Such racially charged rhetoric is
insidious misconduct. See McCleskey v. Kemp, 481 U.S. 279, 309 n.30, 107 S. Ct. 1756,
4 No. 37057-7-III In re Pers. Restraint of Richmond
95 L. Ed. 2d 262 (1987) (“prosecutorial discretion cannot be exercised on the basis of
race”). It can never be condoned. 1
Even when an animal analogy lacks racist connotations, it can send a
dehumanizing message. Calling someone a snake or a rat conveys the idea that the person,
regardless of race, does not merit full treatment as a human and, as a result, a jury need
not be as concerned about the individual’s rights or circumstances. Such derisive
comments are improper. See State v. Embry, 171 Wn. App. 714, 754-55, 287 P.3d 648
(2012) (reference to group of defendants as a “‘pack of wolves’”); State v. Rivers, 96
Wn. App. 672, 673, 981 P.2d 16 (1999) (The prosecutor referred to the defendant and his
associates as predators, hyenas, and jackals.); State v. Wilson, 16 Wn. App. 348, 357,
555 P.2d 1375 (1976) (The prosecutor improperly “referred to the victim as ‘that little
angel’ and to the defendant by a declaration, ‘to call him a beast would insult the entire
animal kingdom.’ . . . ‘I say that he is not fit to be a member of the human race.’”).
But not all human-animal comparisons are racist or dehumanizing. Some analogies
are positive. It is a compliment to say someone is lionhearted, eagle-eyed, or busy as
a bee. Other analogies are negative, though not in a particularly dehumanizing way.
1 We nevertheless upheld Mr. Barajas’s conviction, reasoning the prosecutor’s improper conduct was not prejudicial.
5 No. 37057-7-III In re Pers. Restraint of Richmond
For example, calling someone a chicken has more to do with the anthropomorphism of
gallinaceous birds than with human denigration. There are also analogies that are simply
neutral. A politician who favors escalating military conflicts may be called a hawk; one
with an opposite perspective being a dove. An official who is in the last portion of an
elected term is a lame duck. An individual or group seeking to keep politicians (be they
hawks, doves, lame ducks, or otherwise) accountable might be referred to as a watchdog.
As we recognized in Barajas, “it is common for both prosecutors and defense
attorneys to make use of analogies in order to help the jury understand the law or the
arguments of the parties.” 143 Wn. App. at 40. There is no clear prohibition on the use of
animal analogies as part of this endeavor. To the contrary, trial practice guides are known
to suggest animal analogies as part of effective story telling techniques. See, e.g., Tyron
C. Moncriffe, Storytelling and the Art of Persuasion, THE CHAMPION, Nov. 2011, at 26,
28-29 (praising an analogy that characterizes the victim as a snake to explain self-
defense); THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES 282 (3d ed. 1992)
(suggesting analogizing a cooperating witness to a maggot who has infested a piece of
fruit). Our case law defers to attorneys’ choices of rhetorical devices and allows analogies
so long as they do not suggest a defendant should be considered less than human. See
State v. Perry, 24 Wn.2d 764, 769-70, 167 P.2d 173 (1946).
6 No. 37057-7-III In re Pers. Restraint of Richmond
Unless an analogy conveys racist sentiment or is otherwise dehumanizing, we
should give breathing room for attorneys to connect with jurors and try their cases. In
addition, if a particular analogy is ambiguous, our appellate review should be guided by
a presumption of good faith. See State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43
(2011) (“A prosecuting attorney . . . presumptively acts with impartiality and in the
interest of justice.”); Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984) (“[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonably professional assistance.”). When
opposing counsel fails to object to an ambiguous animal analogy, we should be loath to
second guess the proceedings and intervene.
Looking at the analogy here, nothing about a hornet’s nest analogy places it
outside the bounds of permissible trial argument. As Mr. Richmond concedes, the analogy
carries no apparent racial implications. Nor is it particularly dehumanizing. Similar to
what is true of lame duck or watchdog, the primary definition of a “hornet’s nest” has to
do with people, not animals: “a troublesome or hazardous situation” or “an angry
reaction.” MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-
webster.com/dictionary/hornet's%20nest (last visited Mar. 12, 2021). While a hornet or
hornet’s nest is not an entirely positive comparison, the comparison appears to have more
7 No. 37057-7-III In re Pers. Restraint of Richmond
to do with the anthropomorphism of stinging wasps than an attempt to suggest a person
compared to a hornet or a hornet’s nest is less than human.
Nor did the hornet’s nest analogy appear obviously improper when viewed in the
context of Mr. Richmond’s trial. The prosecutor appears to have invoked the hornet’s
nest analogy to explain Mr. Richmond’s behavior in a way the jury might find relatable.
Not everyone has been exposed to individuals with quick, violent tempers. But most
people are familiar with the concept of an easily angered hornet. We do not doubt one
could read the hornet’s nest analogy as improperly suggesting Mr. Richmond shared
an insect’s inability to engage in the type of rational thought required for self-defense.
But this dehumanizing interpretation is far from obvious. Indeed, had the analogy been
obviously offensive, one would wonder why it took Mr. Richmond and his various
attorneys so long to raise this argument.
At worst, the propriety of the hornet’s nest analogy was ambiguous. To the extent
the comparison appeared dehumanizing to those present at trial, it should have drawn an
objection. But there was none. Instead, defense counsel referenced the hornet’s nest
analogy in their own summation. Arguing for self-defense, Mr. Richmond’s attorney
urged the jury not to be “fooled by the words, ‘the hornet’s nest.’” RP at 1135. Counsel
argued self-defense still applies even if “you’re a belligerent person” or “act like an ass
8 No. 37057-7-III In re Pers. Restraint of Richmond
in public.” Id.
The dissent appears to claim the State’s argument was not ambiguous because the
State told the jury that, even assuming Mr. Higginbotham came at Mr. Richmond with a
knife, Mr. Richmond “possessed no right to fight back.” Dissent at 10. The actual quote
from summation is as follows: “Defendant is charged with murder in the second degree
and the state is asking you to find self-defense doesn’t apply to the hornet’s nest—
decided to stir things up himself. We’re asking you to find him guilty of murder in the
second degree.” RP at 1134. We do not read this argument as unambiguously asserting
self-defense does not apply because Mr. Richmond had the mental faculties of a hornet.
Instead, we read this argument as plausibly conveying the idea that because Mr.
Richmond was stirring himself up with anger, i.e. behaving in a way analogous to a
hornet, he was not entitled to act in self-defense. This line of argument was proper. 2
The ambiguity of the prosecutor’s statements distinguishes this case from State v.
Loughbom, 196 Wn.2d 64, 470 P.3d 499 (2020). In Loughbom, the prosecutor repeatedly
characterized the State’s case as part of society’s “war on drugs.” Id. at 70. Although
2 It is unclear why the prosecutor’s use of an animal analogy to describe Mr. Richmond’s behavior was more dehumanizing than the insistence on calling him “Defendant” instead of his given name.
9 No. 37057-7-III In re Pers. Restraint of Richmond
there was no objection to this statement at trial, our appellate cases had long prohibited
this precise type of rhetoric. Id. at 70-71. On appeal, there was no dispute the prosecutor’s
statements were improper. The only issue was prejudice. Loughbom held that the
misconduct was prejudicial because the statements were repeated and improperly
appealed to the jury’s civic concerns for addressing societal ills. Id. at 77-78.
Unlike Loughbom, Mr. Richmond has not shown the prosecutor’s comments were
improper. He therefore fails to satisfy the first hurdle of his prosecutorial misconduct
claim. The request for relief from personal restraint based on prosecutorial misconduct
is denied. Mr. Richmond’s petition for relief is therefore dismissed. 3
The panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder having no
precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
3 According to the dissent, the “State told the jury that, assuming Dennis Higginbotham thrust toward Joseph Richmond with a knife, Higginbotham possessed the right to do so, and Richmond possessed no right to fight back.” Dissent at 10. The actual quote from summation is as follows: “Defendant is charged with murder in the second degree and the state is asking you to find self-defense doesn’t apply to the hornet’s nest— decided to stir things up himself. We’re asking you to find him guilty of murder in the second degree.” RP at 1134.
10 No. 37057-7-III In re Pers. Restraint of Richmond
In addition to his misconduct claim, Mr. Richmond makes three arguments
regarding the trial court’s jury instructions. Although defense counsel did not object to
the instructions at trial, Mr. Richmond claims relief is still proper on the theory that
his attorney’s failure to object constituted ineffective assistance. We disagree with
Mr. Richmond’s criticism of the instructions. Consequently, his claim of ineffective
assistance fails.
Self-defense instruction
Mr. Richmond claims the trial court’s self-defense jury instruction was improper
because it lowered the State’s burden of proof. The instruction in question was based on
WPIC 16.02. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 16.02, at 234. (3d ed. 2008) (WPIC). It applies in the context of justifiable
homicide and explains self-defense must be predicated on a reasonable belief the victim
“intended to inflict death or great personal injury.” Clerk’s Papers (CP) at 103, State v.
Richmond, No. 34157-7-III (Wash Ct. App.). According to Mr. Richmond, because he
was charged with felony murder predicated on assault, the degree of threatened harm
need not have been so severe. According to Mr. Richmond, the court should have
issued an instruction under WPIC 17.02, which applies outside the homicide context.
11 No. 37057-7-III In re Pers. Restraint of Richmond
This instruction explains self-defense is available so long as the defendant reasonably
believed they were about to be injured.
The level of threat required for self-defense depends on a proportionality analysis.
For example, if the victim threatens the defendant with harmful, but not life-threatening
force, the defendant is justified in responding with the same. But the defendant is not
entitled to escalate the level of violence and deploy life-threatening force. Such force is
not proportionate and therefore unjustified. The proportionality rule applies regardless of
whether the defendant is charged with assault, felony murder, or murder. In the context of
felony murder, it is the level of harm deployed by the predicate felony that controls the
applicable self-defense instruction. See State v. McCreven, 170 Wn. App. 444, 462-66,
284 P.3d 793 (2012).
The predicate felony at issue in Mr. Richmond’s case was first degree assault.
As the trial court instructed the jury, first degree assault requires intent to inflict great
bodily harm and either the actual infliction of such harm or the risk of such harm through
use of a deadly weapon or force. See former RCW 9A.36.011(1)(a), (c) (1997); CP at 97.
Under the proportionality rule, in order for self-defense to excuse commission of first
degree assault, the threat of harm posed by the victim must be akin to a first degree
assault. A mere risk of injury is insufficient.
12 No. 37057-7-III In re Pers. Restraint of Richmond
The self-defense instruction provided by the court was appropriately tied to the
predicate crime of first degree assault. An instruction based on WPIC 17.02 would not
have met this standard. The trial court properly issued an instruction under WPIC 16.02,
which required a threat of harm akin to that used in first degree assault, and the
instruction thus does not support Mr. Richmond’s ineffective assistance of counsel claim.
First degree assault instruction
Mr. Richmond claims the court’s first degree assault instruction was ambiguous
because it did not clearly require the State to prove a mens rea for each alternative means
of first degree assault. In other words, Mr. Richmond claims the jury may have convicted
him for assaulting Mr. Higginbotham by any force or means likely to produce great bodily
harm or death, but without intent to inflict great bodily injury.
We disagree with Mr. Richmond’s criticisms. The first degree assault instruction
advised the jury:
A person commits the crime of assault in the first degree when, with intent to inflict great bodily harm, he or she assaults another and inflicts great bodily harm or assaults another with a deadly weapon or by any force or means likely to produce great bodily harm.
CP at 97 (emphasis added). The court also instructed the jury, “[a]n assault is an
intentional touching or striking of another person that is harmful or offensive.” Id. at 100
(emphasis added). These instructions made plain the State was obliged to prove intent
13 No. 37057-7-III In re Pers. Restraint of Richmond
and the type of intent at issue was an intent to inflict great bodily harm. Mr. Richmond’s
attorney did not render ineffective assistance by correctly refraining from objecting to this
instruction.
Revived self-defense instruction
Mr. Richmond’s final claim is that his attorney performed deficiently by failing
to ask for a revived self-defense instruction. This argument is made in conjunction with
the fact that the court issued an initial aggressor instruction. Mr. Richmond points out
that, according to the State’s theory of the case, Mr. Richmond withdrew from the initial
confrontation between himself and Mr. Higginbotham. Thus, Mr. Richmond argues that
regardless of whether he was the initial aggressor in this original confrontation, he was
allowed to respond to Mr. Higginbotham’s show of force after the initial confrontation
came to an end.
The problem with Mr. Richmond’s argument is that it mischaracterizes the facts
and arguments at trial. The State’s theory was not that Mr. Richmond forfeited the right
of self-defense based on his initial confrontation with Mr. Higginbotham. Instead, the
State’s initial aggressor argument was specific to the second interaction between the two
men. According to the State, Mr. Richmond initiated a second confrontation by running
out of his home, armed with a two-by-four. Mr. Richmond responded to this claim at trial
14 No. 37057-7-III In re Pers. Restraint of Richmond
by disputing the State’s facts. Mr. Richmond claimed Mr. Higginbotham was the one who
initiated the second, fatal confrontation. According to Mr. Richmond, he only grabbed the
two-by-four after Mr. Higginbotham came at him with a knife.
A theory of revived self-defense was not relevant to the parties’ dispute over
who started the second confrontation between Mr. Richmond and Mr. Higginbotham.
Had the court issued a revived self-defense instruction, it likely would have only
generated confusion. Defense counsel did not behave ineffectively in failing to request
the instruction.
CONCLUSION
Mr. Richmond has not demonstrated he is under unlawful restraint. The request for
relief from personal restraint is denied. His petition for relief is therefore dismissed.
_________________________________ Pennell, C.J.
I CONCUR:
______________________________ Lawrence-Berrey, J.
15 No. 37057-7-III
FEARING, J. (dissent) — The State of Washington charged Joseph Richmond with
second degree murder of Dennis Higginbotham, and, in response, Richmond argued self-
defense. During trial, Richmond testified “he was in fear for his life on the night of the
attack,” “felt ganged up on by [Veronica] Dresp and her [two] companions,” and
“repeatedly told the trio they needed to leave.” State v. Richmond, 3 Wn. App. 2d 423,
429, 415 P.3d 1208 (2018). Immediately before striking Dennis Higginbotham with a
board, Higginbotham, according to Richmond, approached him in a fast manner, armed
with a flashlight, and with what appeared to be a knife.
This court lacks a transcript of the State’s opening statement at trial. Nevertheless,
at the beginning of the State’s closing, the prosecuting attorney commented to the jury
that she referenced defendant Joseph Richmond as a “hornet’s nest” during her opening.
We talked in opening statement and I gave you the analogy, have you ever heard the analogy, don’t poke a hornet’s nest with a stick. Well, ladies and gentlemen, Joe Richmond is a hornet’s nest. And you don’t need a stick to poke him to set him off.
6 Report of Proceedings (RP) (Feb. 9, 2016) at 1117 (emphasis added). The State thus
established the theme of a hornet’s nest at the beginning of the trial. We do not know No. 37057-7-III In re Personal Restraint of Richmond
how many times the prosecutor referenced a “hornet’s nest” during opening statement.
Regardless, the State immediately returned to this leitmotif in its closing.
After returning to the “hornet’s nest” theme at the beginning of the initial closing
statement, the State employed the metaphor six more times during the first closing
statement and the rebuttal closing. When totaling all of the known uses of the term, the
State employed the malevolent moniker at least nine times during the trial. The State
thereby enduringly assigned Joseph Richmond the sobriquet “hornet’s nest.”
The prosecuting attorney continued in her initial closing:
He [Joseph Richmond] was angry that day. He decided in his mind that he had a superior right to that residence and he was not going to let Veronica [Dresp] in. Her phone, her keys, her belongings were there, and she didn’t need a stick. Okay? He was set off. He’s the kind of hornet’s nest that you just walk by and it goes off.
6 RP (Feb. 9, 2016) at 1117-18 (emphasis added).
Again, he’s going to be the king of the nest.
6 RP (Feb. 9, 2016) at 1118 (emphasis added).
In the hornet’s nest that Joseph Richmond lives in, where he’s the king of the world, he gets to decide who gets to be there.
6 RP (Feb. 9, 2016) at1119 (emphasis added).
And this is the moment I want you to think about when you think about what’s reasonable and what’s happening in this situation. No one needed a stick to provoke the defendant. Why? ‘Cause he’s a hornet’s nest and he had his own.
2 No. 37057-7-III In re Personal Restraint of Richmond
6 RP (Feb. 9, 2016) at 1125 (emphasis added). The State ended its opening summation
by asking the jury to reject self-defense as a matter of law because of Richmond’s status
as a “hornet’s nest.”
Defendant is charged with murder in the second degree and the state is asking you to find self-defense doesn’t apply to the hornet’s nest— decided to stir things up himself. We’re asking you to find him guilty of murder in the second degree.
6 RP (Feb. 9, 2016) at 1134. In rebuttal, the prosecuting attorney intoned:
Defense said Dennis [Higginbotham] was actively approaching, and he chose to make himself a combatant. Really? 5’4” skinny old Dennis, wants to pick a fight with the hornet’s nest Joe?
6 RP (Feb. 9, 2016) at 1164 (emphasis added).
This court’s majority mentions that trial defense counsel also referenced a
“hornet’s nest” during his closing argument. Perhaps the majority writes such to justify
the State’s animalistic nom de jour. Nevertheless, defense counsel only stated that the
prosecuting attorney had referred to Joseph Richmond as a “hornet’s nest,” in an effort to
defeat the unfair allusion. Counsel pleaded with the jury not to be “fooled by the words,
the ‘hornet’s nest.’” 6 RP (Feb. 9, 2016) at 1135.
This court should grant Joseph Richmond’s personal restraint petition on two
grounds. First, the prosecution engaged in misconduct by constantly impugning Joseph
Richmond as a “hornet’s nest.” Second, trial defense counsel performed ineffectively by
failing to object to the State’s repeated referral to Richmond as a “hornet’s nest.” I
address the law of both prosecutorial misconduct and ineffective assistance of counsel, in
3 No. 37057-7-III In re Personal Restraint of Richmond
the context of a personal restraint petition, before I apply the doctrines to the prosecution
of Richmond.
First, I discuss prosecutorial misconduct. A personal restraint petitioner raising a
prosecutorial misconduct claim must prove the misconduct was either a constitutional
error resulting in actual and substantial prejudice or a fundamental defect resulting in a
complete miscarriage of justice. In re Personal Restraint of Lui, 188 Wn.2d 525, 539,
397 P.3d 90 (2017). No Washington court has held that all instances of prosecutorial
misconduct constitute a constitutional violation. Nevertheless, prosecutorial misconduct
may deprive a defendant of the constitutional right to a fair trial guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and article I, section 22 of
the Washington State Constitution. In re Personal Restraint of Phelps, 190 Wn.2d 155,
165, 410 P.3d 1142 (2018).
When asserting prosecutorial misconduct in a personal restraint petition when the
defendant did not object to the misconduct at trial, the petitioner must overcome three
hurdles. In re Personal Restraint of Phelps, 190 Wn.2d 155, 166. First, he or she must
show the prosecutor committed misconduct. In re Personal Restraint of Phelps, 190
Wn.2d 155, 166. Second, because the petitioner did not object during trial, the petitioner
must show that misconduct was flagrant and ill-intentioned. In re Personal Restraint of
Phelps, 190 Wn.2d 155, 166. Third, he or she must show the prosecutor’s flagrant and
ill-intentioned misconduct caused actual and substantial prejudice. In re Personal
Restraint of Phelps, 190 Wn.2d 155, 166 (2018).
4 No. 37057-7-III In re Personal Restraint of Richmond
The personal restraint petition second requirement echoes the burden faced by the
accused during a direct appeal when he or she did not object to the prosecutor’s conduct
during trial. Under these circumstances, the defendant must show that the misconduct
was so flagrant and ill-intentioned that an instruction would not have cured the prejudice.
State v. Loughbom, 196 Wn.2d 64, 70, 470 P.3d 499 (2020); State v. Walker, 182 Wn.2d
463, 477-78, 341 P.3d 976 (2015). When addressing this flagrant standard, this court
does not focus on the prosecutor’s subjective intent in committing misconduct, but
instead on whether the defendant received a fair trial in light of the prejudice cause by the
violation of existing prosecutorial standards. State v. Walker, 182 Wn.2d 463, 478. The
prosecutor’s conduct is reviewed in its full context. In re Personal Restraint of Yates,
177 Wn.2d 1, 58, 296 P.3d 872 (2013). We consider the broad context of the comments
as part of the trial, the frequency of improper comments, the intended purpose of the
prosecutorial remarks, and the type of case to determine whether incurable prejudice
occurred. State v. Loughbom, 196 Wn.2d 64, 70 (2020).
Closing arguments are an opportunity for counsel to argue reasonable inferences
from the evidence. State v. Walker, 182 Wn.2d 463, 476-77. Advocacy, however, has
limits, and a prosecutor has the duty to subdue courtroom zeal, not add to it, in order to
ensure the defendant receives a fair trial. State v. Thorgerson, 172 Wn.2d 438, 443, 258
P.3d 43 (2011). Closing argument is not an opportunity to present derogatory depictions
of the defendant. State v. Walker, 182 Wn.2d 463, 478 (2015). The prosecution should
not use closing argument to inflame the passions of the jury with heated, partisan
5 No. 37057-7-III In re Personal Restraint of Richmond
comments. State v. Rivers, 96 Wn. App. 672, 675, 981 P.2d 16 (1999). Justice can be
secured only when a conviction is based on specific evidence and not on rhetoric. State
v. Loughbom, 196 Wn.2d 64, 69-70 (2020).
In 1946, in State v. Perry, 24 Wn.2d 764, 770, 167 P.2d 173 (1946), the
Washington Supreme Court considered the propriety of a prosecutor comparing a
defendant to a “‘mad dog’” during closing arguments. The prosecutor also informed the
jury that it had the “responsibility” to ensure that “you, your sisters and your daughters
and your wives can walk the streets of Bremerton at night without being molested or
attacked by beasts like” the accused. State v. Perry, 24 Wn.2d at 769. The Perry court
held:
[i]t is within the range of legitimate argument for the prosecuting attorney to characterize the conduct of the accused in language which, although it consists of invective or opprobrious terms, accords with the evidence in the case.
24 Wn.2d at 770. The Washington Supreme Court found no misconduct and even
remarked:
[i]f the evidence produced by the state is to be believed, the brutality of the appellant could hardly have been exceeded by the rapacity of a mad dog or a beast.
24 Wn.2d at 770.
The Washington Supreme Court has never overruled State v. Perry. As late as
2012, the Supreme Court cited State v. Perry to support the premise that a prosecutor’s
comments did not engender “‘inflammatory effect.’” State v. Emery, 174 Wn.2d 741,
6 No. 37057-7-III In re Personal Restraint of Richmond
763, 278 P.3d 653 (2012) (quoting State v. Perry, 24 Wn.2d 764, 770 (1946)). I trust,
however, that prosecutorial standards have been elevated since 1946.
Subsequent Washington Supreme Court and Court of Appeals opinions have
found prosecutors improperly deployed similar invectives comparing defendants to
animals. In State v. Music, 79 Wn.2d 699, 716-17, 489 P.2d 159 (1971), vacated in part
on other grounds, 408 U.S. 940, 92 S. Ct. 2877, 33 L. Ed. 2d 764 (1972), the court ruled
improper the prosecutor’s pejorative references to defendant as “mad dog.” In State v.
Embry, 171 Wn. App. 714, 754-55, 287 P.3d 648 (2012), the court described, as ill-
intentioned and flagrant, the prosecuting attorney’s reference to the defendants as a “pack
of wolves.” In State v. Barajas, 143 Wn. App. 24, 39, 177 P.3d 106 (2007), the
prosecutor improperly compared the defendant’s conduct to that of a “mangie [sic],
mongrel mutt.” (Alteration in original.) In State v. Rivers, 96 Wn. App. 672, 673-76
(1999), this court classified, as prosecutorial misconduct, a prosecutor’s inflammatory
comparison of the accused and associates to “jackals,” “hyenas,” and “predators.” In
State v. Wilson, 16 Wn. App. 348, 357, 555 P.2d 1375 (1976), this court characterized, as
inflammatory and improper, a prosecutor’s assertions that “to call [defendant] a beast
would insult the entire animal kingdom” and that the defendant was “not fit to be a
member of the human race.”
I now discuss ineffective assistance of counsel. Ineffective assistance of counsel
gives rise to a constitutional claim. As already written, when the petitioner in a personal
restraint petition raises a constitutional error, he must demonstrate actual and substantial
7 No. 37057-7-III In re Personal Restraint of Richmond
prejudice resulting from the alleged error. In re Personal Restraint of Cook, 114 Wn.2d
802, 813, 792 P.2d 506 (1990). A petitioner who makes a successful ineffective
assistance of counsel claim meets this burden. In re Personal Restraint of Crace, 174
Wn.2d 835, 846-47, 280 P.3d 1102 (2012).
A successful ineffective assistance of counsel claim requires the defendant to
show that counsel’s performance was deficient and prejudice resulting from the deficient
performance. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). To show prejudice, the defendant must demonstrate a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 694. The accused need not establish
that the verdict likely would have been different. Instead, a reasonable probability, in this
context, is a probability sufficient to undermine confidence in the outcome. Strickland v.
Washington, 466 U.S. 668, 694. If a prosecutor engages in misconduct and defense
counsel fails to object, counsel’s performance is deficient. In re Personal Restraint of
Yates, 177 Wn.2d 1, 61, 296 P.3d 872 (2013).
I move now to the facts of Joseph Richmond’s personal restraint petition. This
appeal has similarities to State v. Loughbom, 196 Wn.2d 64, 70 (2020), in which the
Washington Supreme Court reversed a drug conviction against Gregg Loughbom because
of prosecutorial misconduct when invoking the war on drugs. In each case, defense
counsel did not object to the misconduct at trial. The subject of the prosecutor’s
comments in Joseph Richmond’s petition differs from the topic in Loughbom.
8 No. 37057-7-III In re Personal Restraint of Richmond
Nevertheless, in both cases, the State’s attorney repeated the misconduct numerous times
and made the improper comments a refrain at trial. The State of Washington employed
the theme of Joseph Richmond’s being a “hornet’s nest” from the beginning to the end of
trial. The prosecuting attorney uttered the pejorative reference at least nine times, more
times than the inflammatory remarks in State v. Loughbom. In both cases, previous
Washington decisions gave the prosecuting attorney fair warning. Washington appellate
decisions cautioned Joseph Richmond’s prosecutor to avoid animalist metaphors.
Joseph Richmond’s prosecutor committed misconduct when repeatedly comparing
Richmond to a hornet’s nest. Although the prosecuting attorney referred to a “hornet’s
nest,” not a “hornet,” the reference was intimately tied to the stinging insect. The nest
poses danger only because of the many hornets inside. Hornets, the largest of eusocial
wasps, fall inside the taxonomy Class Insecta and, in turn, Kingdom Animalia. The
prosecutor sub-humanized Richmond as a member of the animal kingdom incapable of
reason. The brickbat impugned Richmond’s credibility.
The prosecutor’s derogatory comparisons of Joseph Richmond to a hornet’s nest
were ill-intentioned and inflammatory. References to harmful animals are inflammatory
by nature. I question whether curative instructions ever solve any prejudice to the
defense, but a curative instruction would not have corrected the prejudice created here by
the prosecutor’s recurring references, and the prosecutorial misconduct deprived
Richmond of a fair trial. The State presented a strong case of murder against Joseph
9 No. 37057-7-III In re Personal Restraint of Richmond
Richmond, but Richmond presented credible evidence of self-defense, a complete
defense to the charge.
The State’s attorney told the jury to reject Joseph Richmond’s defense of self-
defense because “self-defense doesn’t apply to the hornet’s nest.” 6 RP (Feb. 9, 2016) at
1134. The State thereby sought to rob Richmond of his sole defense. Richmond did not
need to prove self-defense. Instead, the State carried the burden of disproving self-
defense beyond a reasonable doubt. State v. Grott, 195 Wn.2d 256, 266, 458 P.3d 750
(2020).
A person swats and smashes a buzzing hornet regardless of whether the hornet has
attacked him or her because one presumes all hornets are dangerous. Killing the hornet
as a precaution rather than in defense of an actual attack is justified. By using the
hornet’s nest metaphor, the State told the jury that, assuming Dennis Higginbotham thrust
toward Joseph Richmond with a knife, Higginbotham possessed the right to do so, and
Richmond possessed no right to fight back.
I do not know the race of Joseph Richmond, and I will accept, for argument’s
sake, that a “hornet’s nest” carries no racial connotations. Nevertheless, no court has
ever limited prosecutorial misconduct, when assailing the accused with animalistic
behavior, to instances of racist references. A primary evil behind racism is that a class of
people are condemned as subhuman. That same evil arises whenever the State excoriates
the accused as being an animal.
10 No. 37057-7-III In re Personal Restraint of Richmond
I lack confidence in the verdict as a result of the State’s inflammatory rhetoric that
rendered the trial unfair. I also conclude that excellent trial defense counsel performed
ineffectively when failing to object to the inflammatory name calling. No legitimate
strategy excused the failure to object. This court should grant Joseph Richmond’s
personal restraint petition and remand for a new trial. Therefore, I respectfully dissent.
The majority’s opinion impliedly condones the employment of rhetoric by the
State. The jury should decide the guilt or innocence of the accused based on evidence,
not exhortatory oratory.
I dissent:
________________________________ Fearing, J.