Filed Washington State Court of Appeals Division Two
December 20, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47932-0-II
Respondent,
v.
RICHARD MAXFIELD BARNES, UNPUBLISHED OPINION
Appellant.
LEE, J. — Richard Maxfield Barnes appeals his conviction and sentence for third degree
assault. On appeal, Barnes argues that (1) the prosecutor committed misconduct by (a)
commenting on Barnes’s right to silence, (b) offering a personal opinion on Barnes’s guilt, and (c)
misstating the role of the jury; (2) he was denied a fair trial because one of the deputies gave
improper opinion testimony; (3) he received ineffective assistance of counsel when his attorney
(a) did not seek to exclude evidence of the original crime for which Barnes was arrested, (b) did
not object to the alleged prosecutorial misconduct, and (c) did not object to the deputy’s opinion
testimony; and (4) the sentencing court improperly imposed a legal financial obligation (LFO) of
$500 to the Skamania County Sheriff’s Department. We affirm Barnes’s conviction, but reverse
the imposition of the $500 LFO to the Skamania Sheriff’s Department and remand for the
sentencing court to strike the $500 LFO to the Skamania County Sheriff’s Department. No. 47932-0-II
FACTS
Skamania County Sheriff’s Deputies Scheyer and Shultz responded to a domestic
disturbance call on December 31, 2014, in North Bonneville, Washington.1 After speaking with a
woman, the deputies proceeded to Barnes’s trailer, where Deputy Schultz knocked on the door.
Barnes answered the door, and the deputies asked him to step outside and answer some questions.
Barnes declined the invitation.
Deputy Scheyer described Barnes as “[n]on-compliant,” and Deputy Schultz testified that
Barnes’s “responses were somewhat vague and he was not very forthcoming with any information
and not wanting to respond to our questions.” Verbatim Report of Proceedings (VRP) (Aug. 10,
2015) at 22, 34. Barnes testified that he told the deputies that he “wasn’t interested in talking to
them.” VRP (Aug. 10, 2015) at 50.
When Barnes attempted to turn back into the trailer, Deputy Scheyer grabbed Barnes’s arm
in an attempt to arrest him.2 Deputy Scheyer told Barnes he was under arrest for a domestic
violence fourth degree assault. Barnes was able to pull away before the two deputies were able to
successfully handcuff Barnes.
While walking Barnes to Deputy Shultz’s police vehicle, the deputies testified that Barnes
was belligerent, yelling and screaming, making threats, and uttering obscenities. Deputy Scheyer
1 The defense moved in limine to exclude any evidence regarding allegations of domestic violence. The trial court granted the defense’s motion in limine. 2 Deputy Scheyer testified that she had already obtained probable cause to effectuate Barnes’s arrest based on her conversation with the woman before contacting Barnes at his trailer. Deputy Schultz testified that Deputy Scheyer had advised him that there was probable cause to arrest Barnes.
2 No. 47932-0-II
testified that she believed Barnes “was obviously impaired by alcohol” at this time. VRP (Aug.
10, 2015) at 24. Deputy Schultz similarly testified that Barnes “appeared to be intoxicated.” VRP
(Aug. 10, 2015) at 34. Barnes testified that he consumed the majority, but not all, of a 12-pack of
beer before the deputies arrived.
Once the deputies and Barnes reached the police vehicle, the deputies attempted to load
Barnes into the back seat. Deputy Schultz testified that Barnes was unwilling to enter the police
vehicle on his own. Barnes testified that he was trying to talk to the deputies and they
“misconstrued that as [his] resisting.” VRP (Aug. 10, 2015) at 51. In attempting to load Barnes
into the vehicle, Barnes was facing Deputy Schultz and Deputy Scheyer was off to the side.
Deputy Scheyer testified that in trying to load Barnes into the back seat, Barnes “kinda
reared back and went to kick Deputy Schultz in the face. I didn’t know how many times he kicked
him, but I could see him kick Deputy Schultz in the face.” VRP (Aug. 10, 2015) at 26. The kick
was “kinda a push kick,” and she “was right there when the assault occurred.” VRP (Aug. 10,
2015) at 26, 27.
Deputy Schultz testified that “[a]fter lifting [Barnes’s] legs into the vehicle, and trying to
scoot him into the vehicle, [Barnes] began to kick his legs several times and eventually [Deputy
Schultz] was able to get [Barnes] scooted into the vehicle.” VRP (Aug. 10, 2015) at 38. During
this process, he was kicked in the face “approximately five times.” VRP (Aug. 10, 2015) at 38.
Barnes testified that the deputies were trying to close the door but his legs were in the way.
He kicked to get himself further into the police vehicle because the door was being closed on his
legs. Barnes remembered “kicking at” Deputy Schultz, but not at his face. VRP (Aug. 10, 2015)
at 52. Barnes testified that he did not intentionally kick Deputy Shultz in the face.
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Deputy Scheyer testified that she saw a red mark on Deputy Schultz’s face where he had
been kicked. Deputy Scheyer took a picture of Deputy Schultz’s face showing the red mark, and
the picture was admitted at trial.
Barnes remained “aggravated” and “belligerent” during the ride to jail. VRP (Aug. 10,
2015) at 39. Deputy Shultz testified that Barnes called him obscenities and issued threats toward
Deputy Schultz during the ride and after arriving at the jail.
In its closing argument, the State argued, “I don’t think you have to be unduly sensitive to
find it offensive to be kicked in the face five times while doing your job.” VRP (Aug. 11, 2015)
at 81. The State also argued to the jury, “We have the three prospective [sic] we were given at
trial, the two deputies and Mr. Barnes. Your job is to filter through that, decide what occurred that
day and apply it to the instructions you’ll receive from the court.” VRP (Aug 11, 2015) at 82.
During the State’s rebuttal, the prosecutor described the deputies’ arrest of Barnes as, “after
contacting Mr. Barnes, in the de minimis amount of information he was willing to give, they
decided to effectuate the arrest.” VRP (Aug. 11, 2015) at 91. In concluding its rebuttal argument,
the State argued,
I think you can find beyond a reasonable doubt there was an assault of a law enforcement officer carrying out his duty and, if you do find that all the elements are met beyond a reasonable doubt, ladies and gentlemen, you have a duty to return a verdict of guilty.
VRP (Aug. 11, 2015) at 92.
The jury convicted Barnes of third degree assault for kicking Deputy Schultz in the face.
At Barnes’s sentencing, the sentencing court ordered Barnes to pay $500 to the “Skamania
County Sheriff Investigation Unit.” VRP (Aug. 13, 2015) at 6. This was reflected on the felony
4 No. 47932-0-II
judgment and sentence as $500 for “Other fines or costs for: Skamania County Sheriff’s
Investigative Fund,” and is justified on the Felony Judgment and Sentence with the following
finding:
2.5 Legal Financial Obligations/Restitution. The court has considered the total amount owing, the defendant’s present and future ability to pay legal financial obligations, including the defendant’s financial resources and the likelihood that the defendant’s status will change. (RCW 10.01.160). The court makes the following specific findings:
. . . Skamania County Sheriff’s Office costs for its emergency response are reasonable RCW 38.52.430.
Clerk’s Papers (CP) at 57.
Barnes appeals his conviction and the imposition of the LFO.
ANALYSIS
A. PROSECUTORIAL MISCONDUCT
Barnes argues the prosecutor committed misconduct when he (1) elicited testimony and
argued in rebuttal about Barnes’s refusal to speak with the deputies about the domestic violence
call; (2) expressed a personal opinion about Barnes’s guilt; and (3) misstated the role of the jury. 3
Barnes further argues that the cumulative effect of the misconduct warrants a new trial. We
disagree.
1. Legal Principles
To prevail on a claim of prosecutorial misconduct, a defendant must show that the
prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278
P.3d 653 (2012). First, this court determines whether the prosecutor’s conduct was improper. Id.
3 At trial, Barnes did not object to any of the actions he now claims were misconduct.
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at 759. If the prosecutor’s conduct was improper, the question turns to whether the prosecutor’s
improper conduct resulted in prejudice. Id. at 760. Prejudice is established by showing a
substantial likelihood that the prosecutor’s misconduct affected the verdict. Id. at 760.
If a defendant does not object at trial, he or she is deemed to have waived any error, unless
the prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction could not have
cured any resulting prejudice. Id. at 760–61. Under this heightened standard of review, the
defendant must show that “(1) ‘no curative instruction would have obviated any prejudicial effect
on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of
affecting the jury verdict.’” Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d at 438, 455, 258
P.3d 43 (2011)). In making that determination, this court “focus[es] less on whether the
prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice
could have been cured.” Id. at 762.
In closing argument, prosecutors are “afforded wide latitude to draw and express
reasonable inferences from the evidence.” State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203,
review denied, 176 Wn.2d 1009 (2012). Prosecutors may not rely on facts outside the evidence or
use arguments calculated to inflame the passions or prejudices of the jury. In re Pers. Restraint of
Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). We do not look at the comment in isolation,
but in the context of the total argument, the issues in the case, the evidence, and the instructions
given to the jury. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007), cert. denied, 554 U.S.
922 (2008). We presume the jury follows the trial court’s instructions. State v. Anderson, 153
Wn. App. 417, 428, 220 P.3d 1273 (2009), review denied, 170 Wn.2d 1002 (2010).
6 No. 47932-0-II
2. Right to Remain Silent
Barnes argues that the prosecutor committed misconduct by eliciting testimony about and
commenting on his right to remain silent. Specifically, Barnes asserts it was improper for the
prosecution to address his disinclination to speak with the deputies outside of his trailer when the
prosecution was (a) eliciting the deputies’ testimony, (b) cross-examining Barnes, and (c) making
its rebuttal argument. We hold that there was no misconduct because Deputy Scheyer did not
comment on Barnes’s silence. Also, the testimony about Barnes’s disinclination to speak with the
deputies did not create the inference that Barnes was guilty of the assault charge involving Deputy
Schultz because the testimony consisted of Barnes’s unwillingness to speak about a domestic
disturbance call, an incident unrelated to the third degree assault charge. And at the time the
deputies questioned Barnes, the actions resulting in the third degree assault charge involving the
deputy had not yet occurred.
The Fifth Amendment of the United States Constitution and article I, section 9 of the
Washington Constitution prohibit using a defendant’s pre-arrest silence as substantive evidence of
his guilt or to suggest to the jury that the silence was an admission of guilt. State v. Lewis, 130
Wn.2d 700, 705, 927 P.2d 235 (1996). A police witness “may not comment on the silence of the
defendant so as to infer guilt from a refusal to answer questions.” Id. But “a mere reference to
silence which is not a ‘comment’ on the silence is not reversible error absent a showing of
prejudice.” Id. at 706–07 (quoting Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995)); State v.
Sweet, 138 Wn.2d 466, 481, 980 P.2d 1223 (1999). “[C]omment” means that the State uses the
defendant’s silence to suggest to the jury that the refusal to talk is an admission of guilt. Lewis,
130 Wn.2d at 707.
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An impermissible comment on silence occurs when the State uses the defendant’s silence
“as substantive evidence of guilt or to suggest to the jury that the silence was an admission of
guilt.” Id. at 707; see also State v. Slone, 133 Wn. App. 120, 128, 134 P.3d 1217 (2006). (“‘A
comment on an accused’s silence occurs when used to the State’s advantage either as substantive
evidence of guilt or to suggest to the jury that the silence was an admission of guilt.’”) (emphasis
omitted) (quoting Lewis, 130 Wn.2d at 707); State v. Curtis, 110 Wn. App. 6, 9, 13, 37 P.3d 1274
(2002) (holding that an officer’s testimony that after reading defendant his rights, defendant
refused to talk and asked for an attorney was a comment on silence); State v. Romero, 113 Wn.
App. 779, 785, 54 P.3d 1255 (2002) (holding that testimony that “I read him his Miranda warnings,
which he chose not to waive, would not talk to me” was a comment on silence) (footnote omitted).
The primary concern is whether the remarks were manifestly intended to comment on the right to
silence. State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991). So long as the focus of the
questioning or argument “‘is not upon the exercise of the constitutional right itself,’ the inquiry or
argument does not infringe upon a constitutional right.” State v. Gregory, 158 Wn.2d 759, 807,
147 P.3d 1201 (2006) (quoting State v. Miller, 110 Wn. App. 283, 284, 40 P.3d 692 (2002)).
a. Deputies’ testimony
Barnes argues that the prosecutor committed misconduct when he asked Deputy Scheyer
to explain what she meant when she testified that Barnes was “non-compliant.” Br. of Appellant
at 22. Barnes argues the same error occurred when the prosecutor questioned Deputy Schultz
about whether Barnes responded after the deputies contacted him at his trailer. We hold that
because Deputy Scheyer’s testimony did not mention Barnes refusing to speak with the deputies
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and Deputy Shultz’s testimony did not create an inference that Barnes was guilty of the charged
assault, the prosecutor’s conduct was not improper.
i. Deputy Scheyer’s testimony
During Deputy Scheyer’s testimony, the prosecutor asked her what she observed about
Barnes’s demeanor when he was initially contacted, to which Deputy Scheyer responded, “Non-
compliant.” VRP (Aug. 10, 2015) at 22. The defense objected, arguing that the answer was
conclusive, and the court overruled the objection. The prosecution then asked Deputy Scheyer
what she meant by “non-compliant,” and she responded that when she “asked him to step out of
the trailer so we could speak with him or to show us his hands, he would not do it.” VRP (Aug.
10, 2015) at 22. Barnes asserts that this exchange constituted misconduct because it “directly
commented” on the “exercise of his constitutional right to silence.” Br. of Appellant at 22.
We hold that this was not a comment on Barnes’s right to silence because there is no
mention of Barnes’s refusal to speak. The testimony was that Barnes’s was “[n]on-compliant”
because he would not step out of the trailer and would not show them his hand. VRP (Aug. 10,
2015) at 22. Because this testimony does not mention Barnes’s refusal to speak, we hold that it
was not an improper comment on Barnes’ right to silence and the prosecutor did not commit
misconduct in eliciting this testimony.
ii. Deputy Schultz’s testimony
Deputy Shultz testified that he and Deputy Scheyer contacted Barnes and asked to speak
with him. The prosecutor then asked, “Did [Barnes] respond?” and Deputy Schultz answered,
“His responses were somewhat vague and he was not very forthcoming with any information and
not wanting to respond to our questions.” VRP (Aug. 10, 2015) at 34. Barnes argues this
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constituted misconduct because it was “a direct comment on the right to silence.” Br. of Appellant
at 23.
For an inference of guilt to be created in this case, Barnes’s silence would need to create
the inference that Barnes had assaulted Deputy Shultz. Lewis, 130 Wn.2d at 707. Here, Deputy
Shultz testified that during the initial contact with Barnes on an incident unrelated to the third
degree assault charge, Barnes’s responses to questions regarding the unrelated incident were
“vague” and he “was not very forthcoming with any information” regarding that unrelated
incident. VRP (Aug. 10, 2015) at 34. Also, at the time when Deputy Shultz testified that Barnes
was giving vague responses, Barnes did not know he would be placed under arrest and the actions
resulting in the third degree assault charge had not yet occurred. Thus, Deputy Shultz’s testimony
referencing Barnes’s disinclination to speak with the deputies did not violate Barnes’s right to
remain silent. Deputy Schultz’s testimony merely showed that Barnes did not want to speak with
the deputies regarding an incident unrelated to the third degree assault charge, and Barnes indicated
he did not want to speak with the deputies before the events precipitating the assault charge
occurred. There was no comment on Barnes’s silence inferring he was guilty of third degree
assault.
To the extent that Barnes argues that this testimony from Deputy Schultz was a comment
on the evidence that undermined his credibility and inferred guilt, that argument fails. A comment
on the evidence is:
A statement made to the jury by the judge or by counsel on the probative value of certain evidence. Fed. R. Evid. 105. Lawyers typically make such comments in closing argument, and judges may make such comments in federal court. But most state-court judges are not permitted to do so when examining a witness, instructing the jury, and the like.
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BLACK’S LAW DICTIONARY 304 (9th ed. 2009). See also Lewis, 130 Wn.2d at 707 (“A comment
on an accused’s silence occurs when used to the State’s advantage either as substantive evidence
of guilt or to suggest to the jury that the silence was an admission of guilt.”).
Here, the challenged testimony from Deputy Schultz was that he perceived Barnes as
“vague” and “not very forthcoming with any information” regarding that unrelated incident. VRP
(Aug. 10, 2015) at 34. This is not a comment on the evidence because it does not address the
probative value of any evidence presented against Barnes on the third degree assault charge
involving Deputy Schultz.
Similarly, to the extent Barnes argues that this testimony from Deputy Schultz was a
comment on Barnes’s silence that undermined his credibility and inferred guilt, that argument also
fails.
Here, the focus of the questioning by the prosecutor and Deputy Schultz’s responses was
not focused on Barnes’s pre-arrest right to silence. Rather, the purpose of the line of question was
to explain the sequence of events that led to the assault of Deputy Schultz after Barnes had been
placed under arrest. Viewed in context, Deputy Schultz’s responses that Barnes challenges on
appeal do not constitute impermissible comments on Barnes’s right to silence.
b. Cross-Examination of Barnes
Barnes argues the prosecutor committed misconduct in cross-examining him about his
disinclination to speak with the deputies. Specifically, Barnes assigns error to the State’s question:
“Is it your testimony, when asked to talk about the incident, your response is, I don’t want to; and
you turned around and went back into the trailer. Is that correct?” VRP (Aug. 10, 2015) at 54.
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For the same reasons that we hold that Deputy Shultz’s answers regarding Barnes’s
disinclination to speak with the deputies was not a comment on Barnes’s right to remain silent, we
hold that the prosecutor’s cross-examination of Barnes’s was not an improper comment on his
right to remain silent. The prosecutor asked Barnes about his unwillingness to talk to the deputies
regarding the domestic dispute. Barnes’s disinclination to speak to the deputies about the domestic
dispute does not infer that Barnes was guilty of subsequently assaulting Deputy Shultz. Therefore,
we hold that the prosecutor did not violate Barnes’s right to remain silent when asking about
Barnes’s unwillingness to speak with the deputies about the domestic violence incident.
c. State’s Rebuttal
Finally, Barnes argues the prosecutor improperly commented on his right to remain silent
during the State’s rebuttal closing argument. Specifically, Barnes assigns error to the portion of
the State’s rebuttal where the prosecutor said, “after contacting Mr. Barnes, in the de minimis
amount of information he was willing to give, they decided to effectuate the arrest.” VRP (Aug.
11, 2015) at 91.
We hold that this was not an improper comment on Barnes’s right to remain silent. As
discussed above, the “de minimis” information Barnes provided the deputies was in response to
their questions about an incident unrelated to the assault charge, and at the time of the deputies’
questioning, Barnes’s actions resulting in the assault charge involving the deputy had not yet
occurred. Therefore, we hold that the prosecutor did not improperly comment on Barnes’s right
to remain silent during the State’s rebuttal closing argument.
2. Expressing a Personal Opinion as to Guilt
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Barnes argues that “[t]he prosecutor repeatedly expressed his personal opinion that Mr.
Barnes intentionally kicked [Deputy] Schultz and was guilty of assault.” Br. of Appellant at 25.
Specifically, Barnes points to the State’s closing where the prosecutor argued,
Now, in deciding whether or not something is offensive, “touching or striking is offensive if the touching or striking would offend an ordinary person who’s not unduly sensitive.” I’ll leave to you. It’s your decision to be a reasonable person. I don’t think you have to be unduly sensitive to find it offensive to be kicked in the face five times while doing your job.
VRP (Aug. 11, 2015) at 81 (quoting Jury Instruction 7) (emphasis added). And Barnes points to
the conclusion of the State’s rebuttal where the prosecutor argued,
Ladies and gentlemen, I believe if you look at all the facts, you’ll find that you can develop an abiding belief in the charge. I think you can find beyond a reasonable doubt there was an assault of a law enforcement officer carrying out his duty and, if you do find that all the elements are met beyond a reasonable doubt, ladies and gentlemen, you have a duty to return a verdict of guilty. Thank you.
VRP (Aug. 11, 2015) at 92 (emphasis added).
It is improper for prosecutors to express personal opinions on the ultimate issue of guilt
independent of the evidence presented. State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006).
But prosecutors may make arguments that, based on the evidence presented, the accused is guilty.
Id. “‘In other words, there is a distinction between the individual opinion of the prosecuting
attorney, as an independent fact, and an opinion based upon or deduced from the testimony in the
case.’” Id. (quoting State v. Armstrong, 37 Wash. 51, 55, 79 P. 490 (1905)). Thus, “‘While it is
improper for a prosecuting attorney, in argument, to express his individual opinion that the accused
is guilty, independent of the testimony in the case, he may nevertheless argue from the testimony
that the accused is guilty, and that the testimony convinces him of that fact.’” Id. (quoting
Armstrong, 37 Wash. at 54). As such, the prosecutor’s comments must be considered in the context
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of the case, including the elements of the charged crime, the issues argued, and the evidence
presented. Id. at 54.
Here, the prosecutor argued in the State’s closing that the jury should find Barnes guilty
based on evidence presented and the elements of the charged crime. The prosecutor directed the
jury’s attention to, and recited, the jury instruction defining assault. The prosecutor then argued
that Deputy Scheyer’s and Deputy Shultz’s testimony that Barnes had kicked Deputy Shultz in the
face five times met the definition of assault in the jury instruction, but that the jury would need to
make that decision for itself. We hold that such an argument does not rise to the level of
misconduct because the prosecutor’s argument asked the jury to draw the conclusion that Barnes
was guilty from the evidence presented.
Also, the prosecutor concluded the State’s rebuttal by asking the jury to look at all the facts
and find that Barnes assaulted Deputy Shultz. Again, we hold that this argument does not amount
to prosecutorial misconduct because the prosecutor argued that by “look[ing] at all the facts,” the
jury should come to the conclusion that “all the elements are met” to find that Barnes assaulted
Deputy Shultz. VRP (Aug. 11, 2015) at 92. The prosecutor did not express a personal opinion
about Barnes’s guilt.
3. Misstating the Role of the Jury
Barnes argues the prosecutor committed misconduct by misstating the role of the jury.
Specifically, Barnes contends the prosecutor told the jurors “it was their job to decide what actually
happened during the events at issue,” Br. of Appellant at 28, and cited the following from the
State’s closing argument:
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We have the three prospective [sic] we were given at trial, the two deputies and Mr. Barnes. Your job is to filter through that, decide what occurred that day and apply it to the instructions you’ll receive from the court.
VRP (Aug 11, 2015) at 82.
In State v. Anderson, 153 Wn. App. 417, 429, 220 P.3d 1273 (2009), review denied, 170
Wn.2d 1002 (2010), the prosecutor repeatedly suggested in closing argument that the jury’s job
was to “declare the truth” in the case. This court determined that the prosecutor’s repeated request
that the jury “declare the truth” was improper: “A jury’s job is not to ‘solve’ a case. It is not, as
the State claims, to ‘declare what happened on the day in question.’ Rather, the jury’s duty is to
determine whether the State has proved its allegations against a defendant beyond a reasonable
doubt.” Id. at 429 (internal citation omitted).4
Here, the prosecutor’s argument was not a directive for the jury to “declare the truth,” but
was instead a charge to weigh the three witnesses’ perspectives in deciding what occurred and then
to apply the court’s instructions to the evidence. Thus, we hold that the prosecutor’s charge to the
jury did not rise to the level of that in Anderson and was not improper.
4. Cumulative Error
4 Subsequent to this court’s holding in Anderson, it issued State v. Curtiss, 161 Wn. App. 673, 701–02, 250 P.3d 496, review denied, 172 Wn.2d 1012 (2011), which suggested that the “declare- the-truth” statements made by prosecutor’s during closing arguments were not improper. Since this court’s decision in Curtiss, this court has revisited “declare-the-truth” statements made by prosecutors and determined that the statements were improper, following Anderson, 153 Wn. App. at 429, rather than Curtiss. See e.g., State v. Walker, 164 Wn. App. 724, 733, 265 P.3d 191 (2011), remanded, 175 Wn.2d 1022 (2012); State v. McCreven, 170 Wn. App. 444, 473, 284 P.3d 793 (2012), review denied, 176 Wn.2d 1015 (2013).
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Barnes argues that the cumulative effect of the prosecutor’s misconduct denied him the
right to a fair trial. Under the cumulative error doctrine, we will reverse a trial court verdict when
it appears reasonably probable that the cumulative effect of errors materially affected the outcome,
even when no one error alone mandates reversal. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d
747 (1994), cert. denied, 514 U.S. 1129 (1995). Because we hold the prosecutor did not commit
misconduct, we hold no errors accumulated to warrant reversal.
B. IMPROPER OPINION TESTIMONY
Barnes argues he was denied a fair trial when Deputy Scheyer testified that she witnessed
Barnes assault Deputy Schultz. Barnes points to Deputy Scheyer’s testimony where she said she
remembered standing by Deputy Schultz’s side and “was right there when the assault occurred.”
VRP (Aug. 10, 2015) at 26. Barnes contends that this was improper opinion testimony that was
particularly prejudicial because Deputy Scheyer is a police officer, so her testimony carried a
special aura of reliability. We hold that Deputy Scheyer’s testimony was likely impermissible, but
Barnes fails to show the manifest constitutional error required for reversal.5
A lay witness may offer opinion testimony if helpful to the jury and not informed by special
expertise. ER 701. “Testimony in the form of an opinion or inferences otherwise admissible is
not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” ER 704.
However, opinion testimony as to a criminal defendant’s guilt “‘invad[es] the exclusive province
of the [jury]’” to decide the facts of the case. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278
5 A determination of whether the comment was impermissible is not necessary for the resolution of this issue. Thus, we use the term “likely.”
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(2001) (plurality opinion) (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658
(1993), review denied, 123 Wn.2d 1011 (1994)).
To determine whether opinion testimony is impermissible, courts consider the five Demery
factors: “(1) ‘the type of witness involved,’ (2) ‘the specific nature of the testimony,’ (3) ‘the nature
of the charges,’ (4) ‘the type of defense, and’ (5) ‘the other evidence before the trier of fact.’”
Demery, 144 Wn.2d at 759 (quoting Heatley, 70 Wn. App. at 579); see also State v. Quaale, 182
Wn.2d 191, 199-200, 340 P.3d 213 (2014) (holding the same by a majority of the court).
Testimony by law enforcement officers often carry “a special aura of reliability.” State v. Kirkman,
159 Wn.2d 918, 928, 155 P.3d 125 (2007).
Here, applying the Demery factors, (1) a sheriff’s deputy; (2) testified that she witnessed
Barnes “assault” Deputy Schultz when she saw Barnes “rear[ ] back . . . to kick Deputy Shultz in
the face. . . . [and] could see him kick Deputy Shultz in the face”; (3) in a case where Barnes was
charged with the third degree assault of Deputy Shultz; (4) where Barnes claimed it was not assault
because he did not intend to kick Deputy Shultz in the face; and (5) the other evidence before the
jury was Deputy Shultz’s testimony that Barnes kicked him in the face approximately five times,
Deputy Scheyer’s testimony that she saw a red mark on Deputy Schultz’s face where he had been
kicked, and a picture of Deputy Schultz’s face showing the red mark where he had been kicked.
VRP (Aug. 10, 2015) at 26-28, 38. Despite the other evidence presented to the jury, Deputy
Scheyer’s testimony was likely impermissible because it opined on the ultimate issue of Barnes
being guilty of assaulting Deputy Shultz and had the added aura of reliability because Deputy
Scheyer was a sheriff’s deputy.
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However, even if Deputy Scheyer’s testimony was impermissible, Barnes’s challenge fails
because Barnes did not object to preserve the issue for appeal and fails to show a manifest error
affecting a constitutional right. In a footnote, Barnes argues that this was a manifest error affecting
his constitutional rights under the Sixth and Fourteenth Amendments, and therefore, he is allowed
to raise this error for the first time on appeal under RAP 2.5(a)(3). Barnes does not provide further
argument or citation to support his assignment of error for the first time on appeal. Thus, the
alleged error is waived. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d
549 (1992).
RAP 2.5(a)(3) allows an appellant to assign error to a “manifest error affecting a
constitutional right” for the first time on appeal. “This exception is a narrow one, and we have
found constitutional error to be manifest only when the error caused actual prejudice or practical
and identifiable consequences.” State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008).
Instructions to the jury are part of determining whether the defendant was prejudiced by improper
opinion testimony. Id.
In Montgomery, our Supreme Court considered whether the appellant had established
actual prejudice stemming from a police officer’s improper opinion testimony. Id. at 596. The
court reasoned that despite the improper testimony, the members of the jury had been properly
instructed that they were the sole judges of witness credibility and that they were not bound by the
witnesses’ opinions. Id. at 595-96. The court also reasoned that had the appellant raised objections
to the testimony below, it was likely that the objections would have been sustained and curative
instructions given. Id. at 596. Accordingly, our Supreme Court held that actual prejudice had not
been established. Id.
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Here, the jury was instructed that the jury members were “the sole judges of the credibility
of each witness” and that when considering a witness’s testimony, it could consider:
the opportunity of the witness to observe or know the things he or she testifies about; the ability of the witness to observe accurately; the quality of a witness’s memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness’s statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.
CP at 43 (Jury Instruction 1). In addition, the trial court sustained Barnes’s objection when Deputy
Scheyer began to testify to issues outside the scope of admissible evidence, so it is likely that an
objection to Deputy Scheyer’s testimony would have been sustained and a curative instruction
given. Also, as noted above, Deputy Schultz testified that Barnes kicked him in the face, there
was evidence showing the injury Deputy Schultz sustained on his face as a result of the kick, and
Barnes admitted he kicked Deputy Schultz and only denied he did so intentionally. In light of all
the evidence, Barnes does not establish actual prejudice or actual and identifiable consequences.
Therefore, Barnes fails to show the manifest constitutional error required for reversal.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Barnes argues his trial counsel rendered deficient representation and but for that deficient
performance, the outcome of Barnes’s trial would have been different. Specifically, Barnes asserts
his trial counsel was deficient for failing to (1) seek to exclude evidence of the domestic violence
allegation, (2) object to comments relating to right to remain silent, and (3) object when Deputy
Scheyer expressed a personal opinion on his guilt. Barnes further asserts that the cumulative error
of his trial counsel’s deficient performance changed the outcome of his trial. We disagree.
19 No. 47932-0-II
The right to effective assistance of counsel is afforded criminal defendants by the Sixth
Amendment to the United States Constitution and article I, section 22 of the Washington
Constitution. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To establish ineffective
assistance of counsel, Barnes must show both deficient performance and resulting prejudice. State
v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Deficient performance occurs when
counsel’s performance falls below an objective standard of reasonableness. State v. Stenson, 132
Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). To show prejudice,
Barnes must demonstrate that there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. McFarland, 127 Wn.2d at
335. If Barnes fails to satisfy either prong, the court need not inquire further. State v. Hendrickson,
129 Wn.2d 61, 78, 917 P.2d 563 (1996).
There is a strong presumption of effective assistance, and Barnes bears the burden of
demonstrating the absence of a legitimate strategic or tactical reason for the challenged conduct.
McFarland, 127 Wn.2d 336. Decisions on whether and when to object are “classic example[s] of
trial tactics.” State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d
1002 (1989). “‘Only in egregious circumstances, on testimony central to the State’s case, will the
failure to object constitute incompetence of counsel justifying reversal.’” State v. Johnston, 143
Wn. App. 1, 19, 177 P.3d 1127 (2007) (quoting Madison, 53 Wn. App. at 763). It is a legitimate
trial tactic to forego an objection in circumstances where counsel wishes to avoid highlighting
certain evidence. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004). Where
a defendant bases his ineffective assistance of counsel claim on trial counsel’s failure to object,
20 No. 47932-0-II
the defendant must show that the objection would likely have succeeded. State v. Gerdts, 136 Wn.
App. 720, 727, 150 P.3d 627 (2007).
1. Failure to Seek to Exclude Evidence
Barnes argues he received ineffective assistance of counsel when his attorney failed to seek
to exclude evidence of the domestic violence allegation that precipitated the deputies’ arrival at
his trailer and his subsequent arrest. The defense moved in limine to exclude any evidence
regarding allegations of domestic violence. The trial court granted the defense’s motion in limine.
Therefore, we hold that this argument has no merit because defense counsel did move to exclude
the allegations of domestic violence.
Barnes also argues that no legitimate trial tactic could justify his attorney’s failure to object
to testimony that referenced domestic violence. We assume, without deciding, that defense
counsel’s failure to object to testimony that referenced domestic violence was deficient. However,
Barnes fails to show any prejudice resulting from defense counsel’s lack of objection.
To establish prejudice, Barnes must demonstrate that there is a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding would have been different.
McFarland, 127 Wn.2d at 335. We hold that Barnes is unable to make such a showing. The
evidence showed that Barnes had been drinking when the deputies contacted him at night on New
Year’s Eve. After Barnes declined to speak with the deputies, the deputies grabbed Barnes to
arrest him. During the arrest, Barnes resisted and pulled away, but that the two deputies were
eventually able to get both Barnes’s hands cuffed behind his back. Barnes was angry at being
arrested, believed he was being arrested for no reason, yelled and screamed obscenities and threats
during the arrest, and resisted being put in the police vehicle. Deputy Scheyer described Barnes’s
21 No. 47932-0-II
kicks at Deputy Shultz as “a push kick,” Barnes described the kicks as his attempts to get into the
police vehicle, and Deputy Shultz described being kicked in the face five times by Barnes. VRP
(Aug. 10, 2015) at 27. Deputy Scheyer saw the red mark on Deputy Schultz’s face where he had
been kicked and took a picture of it. On this evidence, we hold that Barnes is unable to establish
that the outcome of his trial would have been different had his attorney objected to the references
to domestic violence.
2. Failure to Object to the Prosecution’s Comments on Barnes’s Right to Remain Silent
Barnes argues he received ineffective assistance of counsel when his attorney failed to
object to the prosecution taking testimony and arguing in rebuttal on Barnes’ disinclination to
speak to the deputies. We hold this argument fails because the prosecutor’s conduct was not
improper.
Where a defendant bases his or her ineffective assistance of counsel claim on trial counsel’s
failure to object, the defendant must show that the objection likely would have succeeded. Gerdts,
136 Wn. App. at 727. Therefore, we examine the underlying claim of prosecutorial misconduct.6
Because we hold that the prosecutor did not commit misconduct, defense counsel was not
ineffective in failing to object to conduct that was not improper. Accordingly, we hold that Barnes
6 As stated above, to prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial. Emery, 174 Wn.2d at 756. First, this court determines whether the prosecutor’s conduct was improper. Id. at 759. If the prosecutor’s conduct was improper, the question turns to whether the prosecutor’s improper conduct resulted in prejudice. Id. at 760-61. Prejudice is established by showing a substantial likelihood that the prosecutor’s misconduct affected the verdict. Id. at 760.
22 No. 47932-0-II
did not receive ineffective assistance of counsel for his attorney’s failure to object to the
prosecution’s comments.
3. Failure to Object to Deputy’s Statement of Personal Opinion
Barnes argues he received ineffective assistance of counsel when his attorney failed to
object to Deputy Scheyer’s testimony that Barnes had assaulted Deputy Schultz. Barnes points to
Deputy Scheyer’s testimony where she said she remembered standing by Deputy Schultz’s side
and she “was right there when the assault occurred.” VRP (Aug. 10, 2015) at 26. Barnes contends
that this was improper opinion testimony that was particularly prejudicial because Deputy Scheyer
is a police officer, and as such, her testimony carried a special aura of reliability. We hold that
while defense counsel likely rendered deficient performance in failing to object,7 Barnes’s fails to
demonstrate that there is a reasonable probability the outcome of the proceeding would have been
different had an objection been made.
As discussed above, the evidence of Barnes’s assault on Deputy Schultz was
overwhelming. Deputy Schultz testified that Barnes kicked him in the face five times; Deputy
Scheyer saw a red mark on Deputy Schultz’s face where he had been kicked; there was a picture
of Deputy Schultz’s face showing the red mark; and Barnes admitted he was kicking at Deputy
Schultz. On this evidence we hold that Barnes is unable to establish that the outcome of his trial
would have been different had his attorney objected to Deputy Scheyer’s testimony that she was
standing right next to Deputy Schultz “when the assault occurred.” VRP (Aug. 10, 2015) at 26.
Because Barnes does not demonstrate that there is a reasonable probability the outcome of the
7 See discussion in Section B, supra (explaining why Deputy Scheyer’s testimony was likely objectionable).
23 No. 47932-0-II
proceeding would have been different, we hold Barnes’s fails to establish he received ineffective
assistance of counsel.
Barnes argues that the cumulative effect of his attorney’s failures results in prejudice
requiring a new trial. As stated above, under the cumulative error doctrine, the appellate court will
reverse a trial court verdict when it appears reasonably probable that the cumulative effect of errors
materially affected the outcome, even when no one error alone mandates reversal. Russell, 125
Wn.2d at 93. Because we hold that defense counsel did not make multiple errors and Barnes fails
to show the outcome of the trial would have been different, we hold that Barnes’s cumulative error
argument fails.
D. LEGAL FINANCIAL OBLIGATIONS
Barnes argues the sentencing court erred in ordering him to pay a fee, as part of his legal
financial obligations (LFOs), that was not authorized by statute. Specifically, Barnes assigns error
to the sentencing court’s imposition of $500 to the “Skamania County Sheriff Investigation Unit,”
and the court’s reliance on RCW 38.52.430 as authority for the imposition of the fine. VRP (Aug.
13, 2015) at 6; CP at 57. Barnes argues that “the plain language of the statute requires both that
the defendant’s intoxication cause the event giving rise to the emergency response and that the
defendant sustain a conviction (or received a deferred prosecution) for one of the enumerated
offenses,” and those enumerated offenses are specific driving offenses, not third degree assault.
Br. of Appellant at 37. Although Barnes raises the issue for the first time on appeal, we exercise
our discretion to reach the issue and hold the sentencing court erred in assessing the $500 fee to
24 No. 47932-0-II
the Skamania County Sheriff’s Department. See State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d
680 (2015).
RCW 38.52.430 is titled, “Emergency response caused by person’s intoxication—
Recovery of costs from convicted person,” and provides in pertinent part:
A person whose intoxication causes an incident resulting in an appropriate emergency response, and who, in connection with the incident, has been found guilty of or has had their prosecution deferred for (1) driving while under the influence of intoxicating liquor or any drug, RCW 46.61.502; (2) operating an aircraft under the influence of intoxicants or drugs, RCW 47.68.220; (3) use of a vessel while under the influence of alcohol or drugs, RCW 79A.60.040; (4) vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a); or (5) vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), is liable for the expense of an emergency response by a public agency to the incident.
At sentencing, the State requested “$500.00 Skamania County Sheriff’s Investigative Fund
Assessment” be added to the mandatory LFOs that were requested. VRP (Aug. 13, 2015) at 2.
The State did not cite the basis for this request. The sentencing court assessed a fee of “$500.00
to the Skamania County Sheriff Investigation Unit” without further discussion or explanation.
VRP (Aug. 13, 2015) at 6. In the Felony Judgment and Sentence, paragraph 2.5 said:
Legal Financial Obligations/Restitution. The court has considered the total amount owing, the defendant’s present and future ability to pay legal financial obligations, including the defendant’s financial resources and the likelihood that the defendants status will change. (RCW 10.01.160). The court makes the following specific findings: [X] (Name of agency) Skamania County Sheriff’s Office costs for its emergency response are reasonable RCW 38.52.430 (effective August 1, 2012).
CP at 57.
We hold that the sentencing court erred in obligating Barnes to pay $500 to the Skamania
County’s Sheriff’s Department. This is not one of the mandatory LFOs, and neither the State nor
25 No. 47932-0-II
the sentencing court cited valid authority for its imposition. See e.g. State v. Lundy, 176 Wn. App.
96, 102, 308 P.3d 755 (2013) (holding that the legislature divested sentencing courts of the
discretion to impose the mandatory LFOs of “victim restitution, victim assessments, DNA fees,
and criminal filing fees”). The authority cited in the felony judgement and sentence was RCW
38.52.430, which only applies when intoxication necessitates the emergency response and, in
connection to the response, the defendant is convicted of being under the influence of alcohol or
drugs while (1) driving a vehicle; (2) operating an aircraft; (3) using of a vessel; (4) committing
vehicular homicide; or (5) committing vehicular assault. Barnes was not convicted of, nor did he
receive deferred prosecution for, any of these crimes, and no argument was made that Barnes
intoxication was what necessitated the deputies’ responses in the first place. Therefore, we hold
the sentencing court erred in imposing an LFO of “$500.00 to the Skamania County Sheriff
Investigation Unit.” VRP (Aug. 13, 2015) at 6.
APPELLATE COSTS
Barnes requests that if the State substantially prevails on appeal, that this court decline to
impose appellate costs because he is indigent. The trial court found that Barnes lacked sufficient
funds to prosecute his appeal and granted him a right to review at public expense.
RCW 10.73.160(1) vests the appellate court with discretion to award appellate costs.
Under RAP 14.2, that discretion may be exercised in a decision terminating review. We presume
a party remains indigent “throughout the review” unless the trial court finds otherwise. RAP
15.2(f). In light of Barnes’s indigent status and our presumption under RAP 15.2(f) that he remains
indigent “throughout the review” unless the trial court finds that his financial condition has improved,
we exercise our discretion and waive appellate costs.
26 No. 47932-0-II
CONCLUSION
We hold that (1) the prosecutor did not commit misconduct, (2) Barnes fails to show the
manifest constitutional error required to reverse on the deputy’s improper opinion testimony, and
(3) Barnes did not receive ineffective assistance of counsel warranting reversal. We also exercise
our discretion to consider Barnes’s challenge to the LFOs imposed and hold that the sentencing
court erred in imposing the LFO of $500 to the Skamania County Sheriff’s Department.
Accordingly, we affirm the conviction, but we reverse the $500 LFO imposed for the Skamania
County Sheriff’s Department and remand for the sentencing court to strike the imposition of $500
to the Skamania County Sheriff’s Department.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is
so ordered.
Lee, J. We concur:
Johanson, J.
Maxa, A.C.J.