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FILED APRIL 20, 2023 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
STATE OF WASHINGTON, ) ) No. 38822-1-III Respondent, ) ) v. ) ) STEVEN DAVID STOTTS, ) PUBLISHED OPINION ) Appellant. )
STAAB, J. — Steven Stotts appeals his convictions for second degree identity theft
and forgery. On appeal, he argues that the evidence was insufficient to support his
convictions, and the prosecutor committed misconduct in closing arguments. During
trial, the prosecutor introduced evidence of the “Brady”1 list and then argued in closing
that the officer would not risk his career by testifying untruthfully. The prosecutor also
raised the issue of a missing witness for the first time in closing, suggesting that if Stotts’
cousin, Josh, actually corroborated Stotts’ testimony, he would have come forward and
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Brady held that the prosecution has a duty to turn over all exculpatory evidence in its possession. After Brady, prosecutors began maintaining Brady lists to identify law enforcement officers with potential impeachment evidence that must be disclosed to the defense. See, e.g., Mary Ellen Reimund, Are Brady Lists (aka Liar’s Lists) the Scarlet Letter for Law Enforcement Officers? A Need for Expansion and Uniformity, 3 INT’L J. HUMANS. & SOC. SCI. 1 (Sept. 2013). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38822-1-III State v. Stotts
testified at trial. Stotts also contends that his trial attorney was constitutionally
ineffective for failing to object to these comments in closing.
Although we determine that the evidence is sufficient to support the convictions,
we hold that it is improper vouching for a prosecutor to suggest that law enforcement
witnesses would not risk their careers by testifying untruthfully. Additionally, while it is
not per se improper for a prosecutor to suggest negative inferences from a missing
witness, in this case, the record does not establish that the missing witness doctrine
applied and the comments improperly shifted the burden of producing evidence to Stotts.
We further conclude that defense counsel’s failure to object to the improper
arguments was deficient and not part of a legitimate trial strategy because witness
credibility was a material part of the State’s case. We conclude that had defense counsel
objected, there is a reasonable probability that the outcome of the trial would have been
different. Because we determine that defense counsel was ineffective, we do not reach
the prejudice prong of Stotts’ prosecutorial misconduct argument. We therefore reverse
Stotts’ convictions and remand for further proceedings.
BACKGROUND
Richard and Marlene Trapp lost a book of checks and reported them stolen when
they discovered that various missing checks had been cashed. Officer Aaron Davis of the
Colville Police Department investigated the stolen checks. One of the checks had been
cashed by Stotts. Officer Davis questioned Stotts and concluded that Stotts cashed a
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
check knowing it was stolen. The State charged Stotts with second degree identity theft
and forgery.
Stotts’ case proceeded to a jury trial. Officer Davis testified that he had
investigated Sarah Hill for passing fraudulent checks on the Trapps’ checking account.
As part of the investigation, Officer Davis obtained copies of the fraudulent checks and
found a check made out to Stotts with a memo line that read “landscaping.” Rep. of Proc.
(RP) at 129.
Officer Davis contacted Stotts to ask him about the check. He testified that
initially Stotts was evasive. Stotts told him that he knew the Trapps and that they had
hired him to do landscaping work. Officer Davis informed Stotts that he had spoken with
the Trapps and they told him they did not know Stotts and had not hired him to do
landscaping work. Officer Davis testified that Stotts eventually confessed that an
individual named Sarah Hill had made it a “habit” to pass checks to individuals in
exchange for the individuals retaining some of the proceeds. Officer Davis claimed that
Stotts acknowledged that this was the arrangement when he took the check from Hill and
indicated that he kept $100 for himself and gave the rest of the money to Hill.
Officer Anthony Gorst of the Colville Police Department also testified. He arrived
at the scene while Officer Davis was interviewing Stotts and testified, consistent with
Officer Davis’ testimony, that Stotts was initially evasive but eventually confessed that
he had received the check from Hill and not the Trapps.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Stotts testified, and his testimony contradicted the police officers’ testimony. He
denied confessing to having cashed the check for Hill and instead said he had told Officer
Davis that Hill gave him the check for cleaning up property. He claimed his cousin, Josh,
was nearby during his conversation with Officer Davis. Stotts said it was dark when he
received the check so he did not look at it, although he did warn Hill that the check
“better cash.” RP at 165. He then attempted to deposit the check and testified that it was
“[h]ighly likely” he deposited it with other checks and did not notice it was not from Hill.
RP at 165, 169. Stotts also claimed that the statements in the police report were untrue.
Jason Vaughan, Stotts’ cousin, also testified at trial. He said he had helped Stotts
with a job involving hauling garbage at some point, but he did not remember when the
job had occurred. Vaughan was unable to provide specific testimony as he stated that he
did not remember much from that time because he was drinking a lot. He said he did not
see Stotts being paid at the job.
In the State’s rebuttal, Officer Davis testified that law enforcement officers who
are deemed to be untrustworthy are put on a Brady list that essentially results in
destroying a law enforcement officer’s career. Stotts did not object to this testimony.
The trial court instructed the jury that in order to find Stotts guilty of second
degree identity theft, they needed to find that he knowingly obtained, possessed,
transferred, or used a means of identification or the financial information of another
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
person, with the intent to commit any crime, knowing that the means of identification or
financial information belonged to another person.
The trial court also instructed the jury that to find Stotts guilty of forgery, they
would need to find that he possessed, offered, or put off as true a written instrument,
which the defendant knew had been falsely made, completed, or altered, with the intent to
injure or defraud.
During closing argument, the State argued Officer Davis had no motive to lie
about his interactions with Stotts:
Mr. Stotts wants you to believe that these two officers are laying. [sic] .... I ask you to think about who has the personal interest in the outcome of this case. Is it—Is it Off. Davis and Off. Gorst? … What interest—in the big scheme of things—let’s be honest, a check cashing—would Off. Davis have to destroy his entire career. And weigh that against what interest Mr. Stotts would have—in how this will affect his life. I would submit to you that—the personal interest comes from—Mr. Stotts.
RP at 202-03. The State also noted that Stotts had not called his other cousin, Josh, who
he claimed had been present during his conversation with Officer Davis, as a witness:
In weighing the credibility of these witnesses, it might be a more difficult thing to weigh if you have Off. Davis against Mr. Stotts, maybe. I still submit to you that Off. Davis would have no reason to make that up. But there’s two different officers here telling you the same story. In weighing the credibility, only, please don’t mistake; Mr. Stotts has no duty to disprove any fact. I’m now talking about—credibility factors only. He says there was another person there who heard this conversation. In weighing credibility only, wouldn’t it make sense that that person would
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
come say that what he’s saying is true? That person—by no means does the defense have any duty to produce that witness whatsoever. I’m talking about credibility only.
RP at 203-04.
The jury found Stotts guilty of second degree identity theft and forgery. Stotts
appeals.
ANALYSIS
1. SUFFICIENCY OF EVIDENCE
Stotts challenges the sufficiency of evidence to support the convictions for forgery
and second degree identity theft. He contends that the evidence was insufficient to show
that he knew Hill had stolen and forged the check.
Sufficiency of the evidence is reviewed de novo. State v. Rich, 184 Wn.2d 897,
903, 365 P.3d 746 (2016). Washington follows the standard of review for a challenge to
the sufficiency of the evidence as set out in Jackson v. Virginia.2 State v. Green, 94
Wn.2d 216, 221, 616 P.2d 628 (1980). When reviewing a challenge to the sufficiency of
the evidence, we must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The
purpose of this standard of review is to ensure that the fact-finder rationally applied the
constitutional standard required by the due process clause of the Fourteenth Amendment
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
to the United States Constitution, which allows for conviction of a criminal offense only
upon proof beyond a reasonable doubt. Id. at 317-18.
In claiming insufficient evidence, the defendant necessarily admits the truth of the
State’s evidence and all reasonable inferences drawn from it. State v. Salinas, 119 Wn.2d
192, 201, 829 P.2d 1068 (1992). These inferences “must be drawn in favor of the State
and interpreted most strongly against the defendant.” Id. Further, we must defer to the
trier of fact to resolve conflicting testimony and evaluate the persuasiveness of the
evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (credibility
determinations cannot be reviewed on appeal). Direct and circumstantial evidence are
weighed equally. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019).
“[I]nferences based on circumstantial evidence must be reasonable and cannot be based
on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).
Stotts challenges his convictions for second degree identity theft and forgery,
arguing that there was insufficient evidence to show that he knew the checks were stolen
and that Hill was not authorized to sign them.
To convict Stotts of identity theft, the State was required to prove that Stotts
knowingly obtained, possessed, transferred, or used the financial information of another
person with the intent to commit any crime, knowing that financial information belonged
to another person. RCW 9.35.020(1).
2 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Officers Davis and Gorst both testified that Stotts confessed to accepting the check
written by Hill and made out to him in exchange for keeping part of the proceeds and
giving the rest back to Hill. Considering this evidence in a light most favorable to the
State, a jury could reasonably infer that Stotts possessed financial information (check),
knowing it belonged to someone other than Hill, with the intent to commit a crime
against the true owners of the check. Thus, there was sufficient evidence to support the
conviction for second degree identity theft.
Similarly, to convict Stotts of forgery, the State had to prove that Stotts possessed,
offered, or put off as true a written instrument, which Stotts knew was falsely made, with
the intent to injure or defraud. RCW 9A.60.020. In light of Stotts’ admission to Officer
Davis, a jury could reasonably infer that he took a check made out by Hill, knowing that
she did not own the check or have authority to sign the check, and presented the check to
the bank with the intent to defraud the true owner of the check.
Stotts argues that because he presented evidence showing he was unaware that the
check belonged to the Trapps and contradicting the police officers’ testimonies, this court
should determine there was insufficient evidence. This argument amounts to a request
for this court to weigh evidence. This role lies exclusively with the trier of fact, the jury.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Stotts alleges two instances of misconduct in the State’s closing argument, neither
of which were objected to below. He argues that defense counsel was ineffective for
failing to object to both instances.
Criminal defendants have a constitutional right to effective assistance of counsel.
U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Vazquez, 198 Wn.2d 239,
247, 494 P.3d 424 (2021). In reviewing a claim of ineffective counsel, we start with a
strong presumption that counsel’s performance was effective. State v. McFarland, 127
Wn.2d 322, 335, 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. at 334-
35; see also Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). We review claims of ineffective assistance of counsel de novo. Vazquez,
198 Wn.2d at 249.
We begin with a strong presumption that counsel’s performance was reasonable.
McFarland, 127 Wn.2d at 335. The reasonableness of counsel’s performance is to be
evaluated from counsel’s perspective at the time of the alleged error and in light of all the
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
circumstances. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed.
2d 305 (1986). “When counsel’s conduct can be characterized as legitimate trial strategy
or tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d
177 (2009). To show deficient performance, the defendant must demonstrate from the
record the absence of a legitimate strategic or tactical reason for counsel’s conduct.
McFarland, 127 Wn.2d at 336.
Whether to object or not is a “classic example of trial tactics.” State v. Madison,
53 Wn. App. 754, 763, 770 P.2d 662 (1989). In the context of objections, Washington
courts presume “that the failure to object was the product of legitimate trial strategy.”
State v. Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007). The failure to object to
evidence that may be inadmissible can be a legitimate trial strategy to avoid highlighting
certain evidence. Vazquez, 198 Wn.2d at 248. Counsel may legitimately decide that
objecting to inadmissible but low-value evidence may do more harm than good. See
generally id. at 248-49. For this reason, “[a] few or even several failures to object are not
usually cause for finding that an attorney’s conduct has fallen below the objective
standard of conduct.” Id. at 250.
Conversely, if the defendant can show that the failure to object was not a
legitimate trial strategy, then the failure to object to inadmissible evidence is considered
deficient performance. State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019).
When the inadmissible evidence is significant to the State’s case, either in quantity or
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
quality, there is generally no legitimate reason for failing to object. See Vazquez, 198
Wn.2d at 248, 250 (failing to object to testimony central to the State’s case, or a
significant quantity of objectionable evidence falls below the standard of reasonableness).
Absent an obvious trial strategy under these circumstances, when a defendant
demonstrates that objections would have been sustained, then the defendant meets the
burden of showing that counsel’s performance was deficient. See Id. at 248; Crow, 8
Wn. App. 2d at 508. Prejudice is demonstrated by showing that the outcome of the trial
would have been different absent the objectionable material. Vazquez, 198 Wn.2d at 248-
49.
Brady List
Stotts first argues that his attorney failed to object to the State’s improper
admission and reference to the Brady list. In order to determine if the failure to object
was deficient, we must first determine if the evidence and arguments were improper.
After asking Officer Davis about the relevance of the Brady list during the trial, the
prosecutor made the following argument during closing:
I ask you to think about who has the personal interest in the outcome of this case. Is it—Is it Off. Davis and Off. Gorst? . . . What interest—in the big scheme of things—let’s be honest, a check cashing—would Off. Davis have to destroy his entire career. And weigh that against what interest Mr. Stotts would have—in how this will affect his life. I would submit to you that—the personal interest comes from—Mr. Stotts.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
RP at 203. The State contends that this was not improper argument but rather simply
pointing out the witnesses’ motivations to testify truthfully as provided in the jury
instructions.
“‘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)). The burden for proving prosecutorial misconduct is on the
defendant. State v. Crossguns, 199 Wn.2d 282, 297, 505 P.3d 529 (2022).
A prosecutor commits misconduct when they vouch for a witness’s credibility.
State v. Warren, 165 Wn.2d 17, 30, 195 P.3d 940 (2008). “Vouching may occur in two
ways: the prosecution may place the prestige of the government behind the witness or
may indicate that information not presented to the jury supports the witness’s testimony.”
State v. Coleman, 155 Wn. App. 951, 957, 231 P.3d 212 (2010). A prosecutor places the
prestige of the office behind a witness when they express a personal belief in the veracity
of testimony. See In re Pers. Restraint Glasmann, 175 Wn.2d 696, 706, 286 P.3d 673
(2012).
Two concerns are raised when a prosecutor vouches for a witness:
[S]uch comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.
United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).
The State contends that the prosecutor’s comments merely pointed out the bias and
lack of bias for each witness. We disagree. The prosecutor elicited testimony that
officers who were “deemed untrustworthy” were placed on a Brady list that effectively
ended their career and then circled back to this evidence in closing by suggesting that this
officer would not destroy his career by being untrustworthy. The prosecutor’s reference
to the Brady list as an external lie detector suggested to the jury that some unknown
government entity monitors officers for their truthfulness. If this unknown entity
determines that an officer is untruthful based on unknown factors, then the officer loses
their job and would not be testifying at trial.
In reality, the prosecutor’s office determines which officers are placed on the
Brady list. Mary Ellen Reimund, Are Brady Lists (aka Liar’s Lists) the Scarlet Letter for
Law Enforcement Officers? A Need for Expansion and Uniformity, 3 INT’L J. HUMANS. &
SOC. SCI. 1 (Sept. 2013). So arguing that the Brady list is evidence of or motivation for
truthfulness is another way of saying that the prosecutor’s office has vetted the witness
and vouches for the officer’s credibility. If the jury knows that the prosecutor maintains
the Brady list, then it is direct evidence of vouching. If they are unaware of this, then the
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
argument suggests that evidence outside the record is monitoring the credibility of
witnesses. Either way, it constitutes improper vouching. For this reason, “[i]t is . . .
impermissible for a prosecutor to ask a jury to consider whether law enforcement agents
would risk their careers to commit perjury.” 6 WAYNE R. LAFAVE, ET AL., Criminal
Procedure § 24.7(e) at 602 & n.67 (4th ed. 2015).
Although there are no published Washington cases that hold it is improper for a
prosecutor to argue that a police officer risks their career by providing false testimony,
there are two unpublished Washington cases and several federal cases that reach this
result. See State v. Anderson, No. 78802-7-I (Wash. Ct. App. Mar. 9, 2020)
(unpublished), https://www.courts.wa.gov/opinions/pdf/788027.pdf; State v. Dunbar, No.
35350-8-III, slip op. at *8 (Wash. Ct. App. Mar. 7, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/353508.pdf; Draper v. Rosario, 836 F.3d 1072,
1083 (9th Cir. 2016) (prosecutor’s argument that “‘the existence of legal and
professional repercussions served to ensure the credibility of the officers’ testimony’”
was improper vouching) (quoting United States v. Weatherspoon, 410 F.3d 1142, 1146
(9th Cir. 2005)); Id. (improper vouching to argue, “These are officers that risk losin’ their
jobs, risk losin’ their pension, risk losin’ their livelihood. And, on top of that if they
come in here and lie, I guess they’re riskin’ bein’ prosecuted for perjury.”); United States
v. Combs, 379 F.3d 564, 574 (9th Cir. 2004) (improper vouching to argue that to acquit
defendant the jury had to believe that the agent risked losing his job by lying on the
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
stand); Jordan v. Hepp, 831 F.3d 837, 847 (7th Cir. 2016) (improper vouching for
prosecutor to argue that someone is lying and the detective is not going to put her whole
career and future on the line for this case).
While there are no Washington cases directly on point, Washington courts have
found improper vouching under similar circumstances when the prosecutor advises the
jury that the State is monitoring a witness’s testimony for truthfulness. In State v. Ish,
170 Wn.2d 189, 196, 241 P.3d 389 (2010), the court found improper vouching when a
prosecutor introduced evidence on direct examination that a witness had reached a plea
agreement with the prosecutor’s office to testify truthfully. “‘[P]rosecutorial remarks
implying that the government is motivating the witness to testify truthfully: . . . are
prosecutorial overkill.’” Id. at 198 (internal quotation marks omitted) (quoting United
States v. Roberts, 618 F.2d 530, 536 (9th Cir. 1980) (quoting United States v. Arroyo-
Angulo, 580 F.2d 1137, 1150 (2d Cir. 1978) (Friendly, J., concurring))).
In light of this history and precedent, we take this opportunity to make it clear that
it is improper vouching for a prosecutor to argue that law enforcement witnesses would
not risk their career by testifying untruthfully.
Commenting on Lack of Evidence to Corroborate Defendant’s Testimony
Before turning to the questions of deficiency and prejudice, we explain Stotts’
other ineffective assistance of counsel argument, that defense counsel was deficient for
failing to object to the second alleged incident of prosecutorial misconduct. Stotts argues
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
that the State committed misconduct by shifting the burden of proof when it questioned
why Stotts’ cousin did not come forward to corroborate Stotts’ testimony. The State
contends that the prosecutor was properly pointing out the presence and absence of
evidence to corroborate each witnesses’ testimony. Stotts claims that defense counsel’s
failure to object to this line of argument was deficient.
At trial, Stotts testified that he told the officers he received the checks for work
performed. He denied confessing to any involvement in a check cashing scheme. He
also mentioned that his cousin was present during this conversation with the officers. In
closing, the State argued that each officer’s testimony corroborated the other whereas
Stotts’ testimony was not corroborated by the officers or his cousin. In doing so, the
State noted several times that it was not suggesting that Stotts had a burden to produce
evidence. Instead, in considering the credibility of Stotts’ testimony, the State
rhetorically asked whether it would make sense that Stotts’ cousin would come forward
to corroborate his testimony.
A prosecutor commits misconduct if they shift the burden of proof to the
defendant. State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011). “A prosecutor
generally cannot comment on the defendant’s failure to present evidence because the
defendant has no duty to present evidence.” Id. However, when a defendant chooses to
testify, the State may cross-examine the defendant and attack the defendant’s credibility
like any other witness. State v. Etheridge, 74 Wn.2d 102, 113, 443 P.2d 536 (1968). In
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
determining the credibility of witnesses, the jury was instructed that it could consider the
reasonableness of a witness’s statement in the context of all the other evidence. In other
words, a jury may consider whether the witness’s testimony was corroborated by other
evidence.
In State v. Jackson, the prosecutor reminded the jury that the State had the burden
of proof and the jury was solely responsible for determining the credibility of witnesses.
150 Wn. App. 877, 885, 209 P.3d 553 (2009). The prosecutor then summarized the
evidence that supported the credibility of the State’s witnesses and the lack of
corroborating evidence to support the defendant’s testimony. Specifically, the prosecutor
pointed out that the testimony of four officers corroborated each other’s testimony while
there was no evidence to corroborate the defendant’s testimony.
On appeal, the court concluded that this argument did not suggest that the
defendant had an obligation to produce evidence. “The mere mention that defense
evidence is lacking does not constitute prosecutorial misconduct or shift the burden of
proof to the defense.” Id. at 885-86. Notably, the prosecutor did not ask the jury to
compare the defendant’s evidence with the State’s evidence for purposes of meeting its
burden of proof. Instead, as the jury instructions allow, the prosecutor suggested that the
jury should compare the testimony of the witnesses to each other in determining each
witness’s credibility. Id. at 886.
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
This case is similar to Jackson, with one additional caveat. In this case, the
prosecutor was also very clear that the State had the burden of proof and Stotts had no
burden to produce evidence. The prosecutor pointed out that the testimony of each
officer corroborated the other. However, in pointing out that Stotts’ testimony was not
corroborated by other evidence, the State went beyond the evidence produced at trial and
suggested that if Stotts’ cousin, Josh, would have corroborated his testimony, then it
would have made sense for Josh to testify. In essence, the State was raising the missing
witness doctrine.
While a prosecutor may not shift the burden of proof to a defendant, if the missing
witness doctrine applies, the prosecutor may comment on the defense’s failure to call a
witness. “The State may point out the absence of a ‘natural witness’ when it appears
reasonable that the witness is under the defendant’s control or peculiarly available to the
defendant and the defendant would not have failed to produce the witness unless the
testimony were unfavorable.” State v. Montgomery, 163 Wn.2d 577, 598, 183 P.3d 267
(2008).
While the State may reference the missing witness doctrine in certain circumstances,
there are important limitations to prevent the doctrine from being improperly used to shift
the burden of producing evidence to the defendant. Id. at 598-99.
First, the doctrine applies only if the potential testimony is material and not cumulative. Second, the doctrine applies only if the missing witness is particularly under the control of the defendant rather than being equally
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
available to both parties. Third, the doctrine applies only if the witness’s absence is not satisfactorily explained. For example, if the witness is not competent or if testimony would incriminate the witness, the absence is explained and no instruction or argument is permitted. Finally, the doctrine may not be applied if it would infringe on a criminal defendant’s right to silence or shift the burden of proof.
Id. (internal citations omitted) (emphasis added). In order to ensure that the doctrine
properly applies in a particular case, the State must raise it early enough in the
proceedings for the defendant to explain why the witness is not being called. Id. at 599.
In this case, Josh’s potential testimony would have been material, and it appears
that Josh was particularly available to Stotts. Moreover, pointing to Josh’s absence
would not have infringed on Stotts’ right to remain silent or shift the burden of proof
because the testimony would have been used to corroborate Stotts’ testimony. But the
State did not raise the missing witness doctrine before or during trial and did not request a
missing witness jury instruction. Consequently, nothing in the record shows why Josh
did not testify. If Josh was not available to testify, his absence at trial cannot be
attributed to Stotts.
Because the State failed to show that the missing witness doctrine applied, it was
improper to raise it for the first time in closing argument. It is one thing to point out that
there is no evidence to corroborate a defendant’s testimony and another to suggest
adverse inferences from a missing witness without first satisfying the limitations on using
this doctrine. Here, by arguing that the jury could make an adverse inference from the
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
failure of Josh to come forward and corroborate Stotts’ testimony when it is not clear that
this witness was available to testify, improperly shifts the burden of proof. Accordingly,
we determine that the argument regarding the lack of testimony from Josh constituted
prosecutorial misconduct.
Deficiency
In this case, we conclude that Stotts’ trial attorney was constitutionally deficient
for failing to object to the prosecutor’s improper arguments. As we concluded above, the
prosecutor’s references to the Brady list as a credibility filter and a missing witness were
improper arguments. Consequently, we assume that, had Stotts’ attorney objected, the
objections would have been sustained.
As we noted above, we presume that unless the defendant can demonstrate
otherwise, counsel’s failure to object was part of a legitimate trial strategy. Johnston,
143 Wn. App. at 20. In this case, Stotts meets his burden of showing the lack of any
legitimate trial strategy for failing to object.
While investigating fraudulent checks, police came across a check payable to
Stotts with the notation “landscaping” on it. Police testified that Stotts eventually
admitted that he took the check from Sarah Hill and cashed it in exchange for part of the
proceeds. Stotts denied this and testified that he accepted the check from Hill in
exchange for cleaning up property and had no idea the check was bad. The credibility of
the witness was not low-value evidence; it was central and material to the case.
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In searching the record for a conceivable trial strategy, we note that defense
counsel failed to make a single objection throughout the entire trial. See generally Report
of Proceedings. This despite numerous instances of seemingly objectionable testimony.
For example, one officer repeatedly testified that Stotts was lying during his conversation
with police. The same officer testified about hearsay statements made by the victims.
The officer also testified that he contacted a potential defense witness who did not
corroborate Stotts’ version of events and refused to testify at trial. One of the victims
testified about a hearsay conversation he had with his son (who did not testify). And
during cross-examination, the prosecutor asked Stotts if the officers’ testimony was false.
The credibility of the witnesses was significant to the State’s case. Defense
counsel acknowledged this in closing argument. Nothing in the record suggests a
legitimate trial strategy for failing to object to improper comments made to bolster the
credibility of the State’s witnesses. The failure to object to the improper comments fell
below the objective standard of reasonableness and constituted deficient performance.
Prejudice
After demonstrating deficient performance, a defendant must still show prejudice
in order to prevail on a claim of ineffective assistance of counsel. Prejudice is shown by
demonstrating a reasonable probability that proper objections would have changed the
result of Stotts’ guilty verdict. Vazquez, 198 Wn.2d at 267. Ultimately, we must concern
ourselves with “‘“‘the fundamental fairness of the proceeding whose result is being
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
challenged.’”’” Id. at 268 (quoting State v. Lopez, 190 Wn.2d 104, 124, 410 P.3d 1117
(2018) (quoting In re Pers. Restraint of Crace, 174 Wn.2d 835, 844, 280 P.3d 1102
(2012) (quoting Strickland, 466 U.S. at 696))).
While the evidence in this case was sufficient, it was not overwhelming. As we
have noted several times, the credibility of the witnesses was material to the State’s case.
Both officers testified that Stotts confessed to participating in a scheme to cash bad
checks in return for part of the proceeds. Stotts denied being involved in the scheme or
saying this to the police. Other than Stotts’ alleged confession, there is no other direct
evidence and very little circumstantial evidence to show that he was involved in a check
cashing scheme run by another person. The limited evidence, the failure to object, and
the improper comments raise legitimate concerns about the fundamental fairness of the
trial. Thus, we conclude that had defense counsel objected, there is a reasonable
probability that the outcome of the trial would have been different.
In both instances of prosecutorial misconduct, Stotts demonstrates that defense
counsel was deficient and that this deficiency prejudiced him. Accordingly, we
determine that Stotts was deprived of his right to effective assistance of counsel.3
3 Stotts also argues that his convictions should be reversed strictly on prosecutorial misconduct grounds. Along with determining that there was prosecutorial misconduct, as this court already has, this would also require us to determine whether the misconduct was so flagrant and illintentioned that no jury instruction could have cured it. See Crossguns, 199 Wn.2d at 299. Because we are reversing on the ineffective assistance of counsel issue, we decline to address the remainder of Stotts’ prosecutorial misconduct argument.
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Reversed and remanded.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Fearing, C.J.
_________________________________ Pennell, J.