FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE MAY 20, 2021 SUPREME COURT, STATE OF WASHINGTON May 20, 2021 SUSAN L. CARLSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) STATE OF WASHINGTON, ) ) No. 98795-5 Respondent, ) v. ) En Banc ) SAMUEL DAVID OBERT SLATER, ) ) Filed:____________ May 20, 2021 Petitioner. ) )
WHITENER, J.—After attending multiple court hearings in his case for
violating a domestic violence no contact order (DVNCO), Samuel Slater missed
court the day his case was called for trial (trial call).1 The judge issued a warrant
for his arrest, and Slater came to court to quash the warrant just over one month
later. The State added a charge of bail jumping for his failure to appear (FTA).
Slater moved to sever the charges, alleging that the charges were not cross
1 “Trial call” in Snohomish County is the equivalent of a trial readiness hearing and not the first day of trial. See Wash. Supreme Court oral argument, State v. Slater, No. 98795-5 (Feb. 16, 2021), at 37 min., 55 sec., video recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org (discussing trial call procedure in Snohomish County). State v. Slater (Samuel David Obert), No. 98795-5
admissible under an ER 403 and ER 404(b) analysis and that trying the charges
together would cause him unfair prejudice and allow for improper propensity
arguments as both charges included violation of a court order. Two different judges
concluded that the FTA was admissible as flight evidence. This allowed the State
to argue the inference that Slater’s FTA for trial call showed that he was conscious
of his guilt on the underlying DVNCO charge. The State capitalized on this
admission and during closing arguments made multiple comments regarding
Slater’s guilt flowing from the FTA. Slater appealed, alleging that the trial court
abused its discretion in not severing the charges as an FTA is not automatically
admissible to infer consciousness of guilt and that the prosecutor committed
misconduct during closing. The Court of Appeals affirmed.
We reverse the Court of Appeals, reverse the convictions, and remand for
the two charges to be severed. Missing one court hearing does not rise to the level
of flight evidence from which one can infer consciousness of guilt on the
underlying crime. The judges in this case abused their discretion when they
repeatedly denied Slater’s motion to sever the charges because the charges are not
cross admissible. Further, although we need not reach this issue, the admission of
the FTA as evidence of consciousness of guilt allowed the prosecutor to capitalize
on the admission and to make improper comments regarding Slater’s alleged guilt
and propensity to violate court orders. This impropriety could not have been cured
2 State v. Slater (Samuel David Obert), No. 98795-5
by a jury instruction and the pretrial rulings effectively allowed the improper
arguments during the State’s closing arguments.
FACTS AND PROCEDURAL HISTORY
In 2016, Slater stood outside the window of a woman he had previously
dated and “tr[ied] to . . . get [her] attention . . . by any means,” while there was a
no contact order in place. 1 Verbatim Report of Proceedings (VRP) (Nov. 14, 2018)
at 143-44, 149-50. The State charged Slater with felony violation of a DVNCO
because of the incident.
On September 8, 2017, the case was set for trial call but Slater failed to
appear, and the trial court issued a bench warrant. On October 16, 2017, Slater
appeared in court to quash the warrant. The State subsequently added the charge of
bail jumping for his FTA at trial call.
Slater filed a motion to sever the bail jumping charge from the DVNCO
violation charge. In his motion he alleged that joinder of felony violation of a
DVNCO and bail jumping was prejudicial and that the charges are not cross
admissible under ER 404(b) because it would amount to improper propensity
evidence. The pretrial judge denied the motion, reasoning that the charges were
cross admissible under case law that allowed for a bail jumping charge to be joined
with the underlying charge and, therefore, that prejudice would exist whether the
charges were severed or not. The pretrial judge did not assess cross admissibility
3 State v. Slater (Samuel David Obert), No. 98795-5
under the ER 404(b) framework other than mentioning related case law in the “ER
404(b) arena.” VRP (Nov. 9, 2018) at 12.
During motions in limine, Slater renewed his motion to sever the charges
and moved to exclude the FTA as evidence of flight or evidence of consciousness
of guilt. The trial judge denied the renewed motion, reasoning that the probative
value outweighed the prejudice. Slater again renewed the motion at the end of the
state’s case, but the judge again denied the motion.
During his closing argument, the prosecutor made multiple comments that
explicitly referred to Slater’s missed court appearance as evidence that Slater was
guilty. Some of these comments will be recounted in the prosecutorial misconduct
section, infra, so for brevity we do not recount them here. Slater objected to only
one comment.
The jury found Slater guilty of both charges. Slater appealed, alleging that
the trial court abused its discretion in admitting evidence of the FTA as evidence
of consciousness of guilt and erred when it denied his motion to sever. Further,
Slater alleged that the prosecutor committed reversible misconduct during closing
argument. The Court of Appeals disagreed and affirmed the convictions. State v.
Slater, No. 79335-7-I (Wash. Ct. App. June 15, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/793357.pdf. Slater then appealed to this
court, and we granted review. State v. Slater, 196 Wn.2d 1017 (2020).
4 State v. Slater (Samuel David Obert), No. 98795-5
The Washington Association of Criminal Defense Lawyers, the American
Civil Liberties Union of Washington, the Washington Defender Association,
Columbia Legal Services, and the King County Department of Public Defense
(WACDL et al.) have filed a joint amicus curiae brief in support of Slater.
ANALYSIS
I. FTA as flight evidence and the motion to sever charges
This court reviews a trial court’s evidentiary rulings and its ruling on a
motion to sever charges for abuse of discretion. State v. Stenson, 132 Wn.2d 668,
701, 940 P.2d 1239 (1997); State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747
(1994). “Discretion is abused when the trial court’s decision is manifestly
unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State
v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
A. A single FTA is not flight evidence from which to infer consciousness of guilt Evidence of flight from which to infer a defendant’s consciousness of guilt
has been admissible evidence since the English common law. See Hickory v. United
States, 160 U.S. 408, 420, 16 S. Ct. 327, 40 L. Ed. 474 (1896). As the old adage
says, “‘The wicked flee when no man pursueth, but the innocent are as bold as a
lion.’” Id. at 416 (quoting the trial court). The United States Supreme Court rejected
this general proposition and has warned for over a century that flight is not limited
to those who are guilty, it also includes some who are innocent. Id. at 421. In doing
5 State v. Slater (Samuel David Obert), No. 98795-5
so, the Court opined that instructing the jury that only the guilty conceal a crime
“ignor[ed] the fundamental truth, evolved from the experience of mankind, that the
innocent do often conceal through fear or other emotion.” Id. Therefore, while
flight evidence may be considered by the jury, the court must not instruct the jury
that flight evidence is conclusive proof of guilt. Id. at 422.
In State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965), this court
examined the concept of flight evidence. We opined, “It is an accepted rule that
evidence of the flight of a person, following the commission of a crime, is
admissible and may be considered by the jury as a circumstance, along with other
circumstances of the case, in determining guilt or innocence.” Id. While the manner
or mode of flight may include a range of circumstances,
the circumstance or inference of flight must be substantial and real. It may not be speculative, conjectural, or fanciful. In other words, the evidence or circumstances introduced and giving rise to the contention of flight must be substantial and sufficient to create a reasonable and substantive inference that the defendant’s departure from the scene of difficulty was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution. Pyramiding vague inference upon vague inference will not supplant the absence of basic facts or circumstances from which the essential inference of an actual flight must be drawn.
Id. at 112-13 (emphasis added).
When flight evidence is admissible to show an inference of consciousness of
guilt, “it tends to be only marginally probative as to the ultimate issue of guilt or
innocence.” State v. Freeburg, 105 Wn. App. 492, 498, 20 P.3d 984 (2001). The
6 State v. Slater (Samuel David Obert), No. 98795-5
Court of Appeals has looked to the Fifth Circuit Court of Appeals’s test for the
probative value of flight evidence in which the Fifth Circuit examines
the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
Id. (citing United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)); see also
United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000) (using the same test).
In Bruton, the defendants were stopped by a store detective and accused of
shoplifting, and while the detective went to call the police, the defendants left the
store. 66 Wn.2d at 111-12. Police apprehended them later a few blocks away. Id.
at 112. On appeal, the remaining defendant (one was acquitted at trial) alleged that
the trial court erred in instructing the jury “it could consider, as a circumstance
bearing upon guilt or innocence, whether appellant fled from the scene.” 2 Id. In
reversing, this court held that the defendants’ leaving the scene of the crime was
not evidence of flight because it was mere speculation at the time they were initially
stopped whether they possessed the stolen items in question, and the store detective
left the women alone with his assistant to go back into the store to call police. Id.
2 The Washington Pattern Jury Instructions no longer recommend a jury instruction on evidence of flight and no such instruction was given in this case. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6.21, at 201 (4th ed. 2016).
7 State v. Slater (Samuel David Obert), No. 98795-5
at 113. It was, thus, unclear how the defendants left the scene and if they resisted
some effort to stop them. Id. Therefore, any evidence of “flight” was purely
speculative.
While we did not find the evidence in Bruton to rise to the level of flight
evidence sufficient to infer consciousness of guilt, Washington courts have opined
that flight evidence is admissible as evidence of consciousness of guilt in other
cases. Examples include cases in which the defendant flees the scene of the crime,
escapes police contact, travels to a different state, or evades arrest for a significant
period of time, among others. See, e.g., State v. Wilson, 26 Wn.2d 468, 174 P.2d
553 (1946) (flight instruction was proper when, after the murder, the defendant
cleaned the murder weapons, did not contact police though he claimed self-defense,
destroyed his clothing, and went to Idaho for four days); State v. Hebert, 33 Wn.
App. 512, 513, 656 P.2d 1106 (1982) (flight evidence admissible when defendant
“was rapidly apprehended but, during a ‘pat-down’ search, broke away and fled”);
State v. Reed, 25 Wn. App. 46, 50, 604 P.2d 1330 (1979) (unexplained absence
following a murder at defendant’s place of employment and allegedly planning to
escape from jail sufficient to support an inference of flight); State v. Nichols, 5 Wn.
App. 657, 659, 491 P.2d 677 (1971) (flight instruction proper when “shortly after
the robbery and prior to the arrest [police and the victim] spotted the defendant
running along the shoulder of the freeway”); see also State v. Cobb, 22 Wn. App.
8 State v. Slater (Samuel David Obert), No. 98795-5
221, 589 P.2d 297 (1978); State v. Jefferson, 11 Wn. App. 566, 524 P.2d 248 (1974)
(discussed in detail below).
It is undoubted that acts of concealment by an accused are competent to go to the jury as tending to establish guilt, yet they are not to be considered as alone conclusive, or as creating a legal presumption of guilt; they are mere circumstances to be considered and weighed in connection with other proof with that caution and circumspection which their inconclusiveness when standing alone require[s].
Hickory, 160 U.S. at 416-17. A trial court when faced with proposed flight evidence
must decide whether or not the alleged evidence amounts to flight that supports a
consciousness of guilt inference. If it does amount to flight evidence that supports
a consciousness of guilt inference, the judge may allow the evidence to be
considered by the jury.
However, in this case we are faced with what may be the most tenuous and
speculative form of alleged flight evidence: the single FTA accompanied by a
motion to quash just over one month later. We hold that evidence of a single FTA
accompanied by a prompt motion to quash the issued warrant is not sufficient
evidence of flight and, therefore, cannot be used as evidence from which to infer
consciousness of guilt on the underlying crime.
The State relies on two Court of Appeals cases for the proposition that an
FTA is admissible as evidence of flight and consciousness of guilt: Jefferson and
Cobb. In Jefferson, the defendant failed to appear on his trial date, and the court
9 State v. Slater (Samuel David Obert), No. 98795-5
issued a bench warrant. 11 Wn. App. at 568. Jefferson himself testified that “he
was ‘nervous and was afraid and decided to leave’ and that he went to California
‘to find a house, find work, because [he] had no intention of showing up for this
court.’” Id. The trial court instructed the jury that it could consider flight in
determining guilt or innocence. Id. On appeal, Jefferson contended that it was an
error to equate the FTA with flight. Relying on Bruton, the Court of Appeals
disagreed and found that the flight was properly submitted to the jury. Id. at 571. It
reasoned, “A decision to avoid trial, although not an impulsive reaction, is
nevertheless a circumstance which, if unexplained, might reasonably be considered
to be the act of one who is conscious of his guilt.” Id. at 570 (emphasis added).
Similarly, in Cobb, the Court of Appeals again addressed the admission of
an FTA that resulted in forfeiture of bail and the issuance of a bench warrant. 22
Wn. App. at 224. Cobb failed to appear at trial and was not apprehended until about
one year later. Id. Relying on Jefferson, the Court of Appeals again held that the
FTA for trial is admissible as circumstantial evidence of guilt. Id. at 224-25. The
court declined to limit evidence of flight to that flight intended to avoid immediate
arrest and implied that it would have weighed the explanation of the absence in
determining whether it was in fact evidence of guilt if Cobb had provided one. Id.
at 225.
10 State v. Slater (Samuel David Obert), No. 98795-5
The State, and the trial court judges below, treat these factually
distinguishable cases as definitive evidence that a charge of bail jumping premised
on one FTA is admissible evidence of flight that can be admitted as evidence of
consciousness of guilt. However, under Jefferson and Cobb, FTA evidence is not
automatically admissible evidence of flight but, rather,
“[t]he rationale which justifies the admission of evidence of ‘flight’ is that, when unexplained, it is a circumstance which indicates a reaction to a consciousness of guilt. . . . A decision to avoid trial, although not an impulsive reaction, is nevertheless a circumstance which, if unexplained, might reasonably be considered to be the act of one who is conscious of his guilt.”
Cobb, 22 Wn. App. at 225 (most emphasis added) (quoting Jefferson, 11 Wn. App.
at 570 (citing 29 AM. JUR. 2D Evidence § 280 (1967); 1 CHARLES E. TORCIA,
WHARTON’S CRIMINAL EVIDENCE § 214, at 450 (13th ed. 1972)).
Jefferson and Cobb both contain scenarios that would likely be considered
flight evidence under the Bruton framework. In both cases, there is a reasonable
inference of flight that is more than mere speculation as both defendants missed
trial, and then proceeded to remain hidden from prosecution for an extended period
of time. In contrast, Slater attended all his prior court dates, had a single FTA, and
just over a month later returned to court to quash the warrant. Under Bruton, a
single FTA is speculative evidence of flight. That circumstance coupled with a
prompt warrant quash negates any reasonable inference that the FTA was for the
purpose of avoiding prosecution. Under the circumstances of the present case, the
11 State v. Slater (Samuel David Obert), No. 98795-5
FTA is not admissible as flight evidence and, therefore, cannot be used for the
purpose of inferring guilt. 3
In addition, under the Fifth Circuit’s four-part inference framework, first
there must be an inference from the defendant’s behavior to flight. Slater’s
appearance for all of his prior court hearings and the timely quashing of the warrant
certainly negates any reasonable inference that his behavior rises to the level of
flight. The defendant’s behavior of missing court, without more, provides a
speculative inference of flight from prosecution and does not rise to the level of
flight necessary to reach the next step of this framework.
Accordingly, we choose to follow the approach of the Superior Court of
Pennsylvania4 and distinguish between a single FTA, which is not considered flight
evidence, and an FTA accompanied by additional evidence of avoiding
prosecution, which does amount to flight evidence. In Commonwealth v. Babbs,
499 A.2d 1111, 1114 (Pa. Super. Ct. 1985), the defendant appeared in court “on
several occasions” but missed the trial date. However, he “did not flee or conceal
himself . . . and was found shortly thereafter at his known residence.” Id. The
3 In addition, both Jefferson and Cobb predate the adoption of the rules of evidence (adopted in 1979) and, therefore, do not contain any reference to ER 404(b) or ER 403, which govern the introduction of evidence of prior misconduct. ER 404(b) and ER 403 are discussed in detail in Section I.C. 4 The Superior Court of Pennsylvania is an intermediate appellate court for the commonwealth.
12 State v. Slater (Samuel David Obert), No. 98795-5
defendant had not shown at court because of an argument with his attorney. Id. The
Superior Court of Pennsylvania opined, “A[n FTA] on the day set for trial does not
have the same connotation as pre-arrest flight or concealment and cannot be said
to point unerringly to consciousness of guilt.” Id. at 1113. Further, the defendant’s
circumstances had “no basis for drawing an inference that [his FTA] on the
continued trial date was attributable to a consciousness of guilt.” Id. at 1114.
In contrast, in Commonwealth v. Carter, 597 A.2d 1156, 1160 (Pa. Super.
Ct. 1991), the defendant failed to appear for trial and was not apprehended for an
entire year. Upon his arrest, he also gave police a fake name. Id. The Superior
Court of Pennsylvania specifically distinguished the case from Babbs and
concluded that the evidence was sufficient to conclude that Carter “had fled,
and/or concealed his whereabouts to avoid prosecution.” Id. The court
distinguished the two cases, in the same way that we now distinguish the present
case from Jefferson and Cobb. In the present case the State provided evidence
that Slater missed trial call and, with no additional facts, inferred that his FTA
was flight to flee prosecution that showed consciousness of guilt. This was pure
speculation.
Bail jumping predicated on a single FTA and nothing more is not flight
evidence from which to infer consciousness of guilt on an underlying charge. A
trial court must not automatically allow this type of evidence but must first decide
13 State v. Slater (Samuel David Obert), No. 98795-5
whether or not the proposed evidence amounts to a reasonable inference of flight
that is more than mere speculation and supports a consciousness of guilt inference.
Because the evidence here does not, the trial court judges abused their discretion
when they admitted the FTA as flight evidence from which to infer consciousness
of guilt.
B. Other considerations for assessing FTA flight evidence
Not all FTAs are flight evidence and not all flight evidence infers a
consciousness of guilt. There are many innocent reasons people fail to appear for
court, and courts must consider these circumstances. This includes the
disproportionate effect that criminalizing FTAs has on persons of lower
socioeconomic classes and the legislature’s shift away from the criminalization of
FTAs accompanied by motions to quash.
Criminalizing FTAs, and using an FTA to infer consciousness of guilt, fails
to consider a crucial factorwhy people miss court. See Aleksandrea E.
Johnson, Decriminalizing Non-Appearance in Washington State: The Problem and
Solutions for Washington’s Bail Jumping Statute and Court Nonappearance, 18
SEATTLE J. FOR SOC. JUST. 433, 446 (2020). Some of the reasons may include lack
of reliable transportation: competing responsibilities, such as child care or work;
disorganization; and forgetting court dates. Id. at 441-42. Frequently, defendants
miss court because of issues of indigency rather than a desire to disobey the legal
14 State v. Slater (Samuel David Obert), No. 98795-5
system. Id. at 466. Although whether to criminalize an FTA is not within the
purview of this court or this case, what follows from these observations is that many
people miss court for reasons unrelated to consciousness of guilt. As WACDL et
al. observe in their amicus brief, “The inference that an FTA shows consciousness
of guilt is frequently unreasonable.” Joint Amicus Curiae Br. of WACDL et al. at
2.
Further, criminalizing FTAs disproportionately impacts indigent people and
people of color. See Johnson, supra, at 442 (“Research . . . suggests that people of
color tend to have higher failure to appear rates.”); see Haley R. Zettler & Robert
G. Morris, An Exploratory Assessment of Race and Gender-Specific Predictors of
Failure to Appear in Court Among Defendants Released via a Pretrial Services
Agency, 40 CRIM. JUST. REV. 417, 426 (2015) (“indigence had a positive,
significant impact on FTA (i.e., indigent defendants were more likely to FTA)”).
In addition, Black and Latinx defendants are more likely to fail to appear than their
white counterparts. See Johnson, supra, at 442 n.43 (citing Zettler & Morris, supra,
at 419 n.38). People miss court for many reasons, not all nefarious.
The bail jumping statute provides “uncontrollable circumstances” as an
affirmative defense. RCW 9A.76.170(2).5 While this somewhat mitigates the use
5 “Uncontrollable circumstance[]” is defined as “an act of nature, such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of a human being such as an automobile accident or threats of death, forcible sexual attack, or
15 State v. Slater (Samuel David Obert), No. 98795-5
of a bail jumping charge predicated on an FTA as evidence of consciousness of
guilt, the defense does not consider the most common reasons why defendants, who
are often indigent, would miss court. While the act of missing court itself may
amount to a violation of the bail jumping statute, it does not, without more, amount
to a reasonable inference of flight or evading prosecution required to show
consciousness of guilt. Using an FTA to infer consciousness of guilt negatively
interprets homelessness, an inability to stay organized, transportation issues, the
choice between coming to court or keeping a job or caring for a child, and other
real-life reasons why one may be unable to attend court on a particular date. In no
other context would these circumstances be construed as a rational inference of
guilt.
The legislature has recognized that a defendant can miss a court date because
of unfortunate, but not “uncontrollable,” circumstances. See LAWS OF 2020, ch. 19
(effective June 11, 2020). The recent amendments to the bail jumping statute,
though not applicable to Slater’s bail jumping charge, require under one prong
proof of the additional element that within 30 days of the issuance of a warrant for
the FTA, the defendant “does not make a motion with the court to quash the
warrant, and if a motion is made under this subsection, he or she does not appear
substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.” RCW 9A.76.010(4).
16 State v. Slater (Samuel David Obert), No. 98795-5
before the court with respect to the motion.” RCW 9A.76.170(1)(b)(ii)(A). This
change provides more persuasive evidence that an FTA is frequently not indicative
of consciousness of guilt.
C. Motion to sever and cross admissibility
The judges in this case concluded that the facts surrounding Slater’s charge
of bail jumping are flight evidence admissible to prove consciousness of guilt as to
the underlying offense. Because we hold that the FTA in this case is not evidence
of flight, we now examine the motion to sever in light of that change in
circumstance.
A defendant “seeking severance ha[s] the burden of demonstrating that a trial
involving [all] counts would be so manifestly prejudicial as to outweigh the concern
for judicial economy.” State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).
Joinder of offenses carries the potential for prejudice if (1) the defendant may have
to present separate, possibly conflicting, defenses, (2) the jury may infer guilt on
one charge from evidence of another charge, or (3) the cumulative evidence may
lead to a guilty verdict on all charges when, if considered separately, the evidence
would not support every charge. Id. at 718. “Prejudice may result from joinder if
the defendant is embarrassed in the presentation of separate defenses, or if use of a
single trial invites the jury to cumulate evidence to find guilt or infer a criminal
disposition.” Russell, 125 Wn.2d at 62-63.
17 State v. Slater (Samuel David Obert), No. 98795-5
In determining whether the potential for prejudice requires severance, a trial court must consider (1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial. Id. at 63. Prejudice must also be weighed against the need for judicial economy. Id.
Slater challenges only the fourth factor. This factor considers, under an ER
404(b) analysis, whether evidence of each charge would be cross admissible in the
separate trials as proof of the other if severance were granted. Id. at 66.
Under ER 404(b), “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” However, ER 404(b) permits evidence of prior bad acts for other,
limited purposes. ER 404(b) is read in conjunction with ER 403 which allows a
trial court to exercise its discretion to exclude otherwise relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice.” See
also State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009).
Prior to the admission of misconduct evidence, the court must (1) find by a preponderance of the evidence the misconduct actually occurred, (2) identify the purpose of admitting the evidence, (3) determine the relevance of the evidence to prove an element of the crime, and (4) weigh the probative value against the prejudicial effect of the evidence.
Id.
18 State v. Slater (Samuel David Obert), No. 98795-5
In the pretrial ruling, the judge went through all four severance factors one
by one on the record. See VRP (Nov. 9, 2018) at 10-13. However, with the cross
admissibility factor, the judge did not engage in an ER 404(b) and ER 403 analysis
to determine whether the charges were cross admissible. The judge indicated that
the case law (Jefferson and Cobb) states that bail jumping is cross admissible for
evidence of guilt. The judge then looked to prejudice and described a case in the
“ER 404(b) arena” that also looked at the prejudice of propensity evidence. Id. at
12. After acknowledging the prejudice in the present case, the judge concluded
“prejudice is going to exist essentially whether it’s severed or not” because the
charges are likely cross admissible. Id. at 13. This discussion of prejudice appears
to be in relation to the prejudice analysis contained within the test for a motion to
sever, but not the additional prejudice analysis under the ER 404(b) and ER 403
test for misconduct evidence. The judge did not determine whether the prejudice of
the bail jumping charge predicated on the FTA in this specific case substantially
outweighed the probative value of the charge as required under ER 404(b) and ER
403. Instead, the judge concluded that the charges likely were cross admissible
without that analysis, and then analyzed the prejudice of severance assuming the
charges were cross admissible.
At trial, Slater had a different judge when he renewed his motion to sever.
He argued that the bail jumping charge was inadmissible under ER 404(b) because
19 State v. Slater (Samuel David Obert), No. 98795-5
of the “strong prejudice” caused by not severing the charges. 1 VRP (Nov. 14,
2018) at 29. The judge responded, “Well, I think the test is not prejudice. It’s unfair
prejudice. And in balancing this, I do not believe that there is―that the danger of
unfair prejudice outweighs the probative value. So I will―I don’t find any reason
to disturb Judge Farris’s ruling.” Id. at 29-30. In doing so, the trial judge engaged
in the ER 404(b) and ER 403 balancing of the probative value and the alleged
prejudice of the bail jumping charge that was missing from the pretrial judge’s
determination on cross admissibility. However, even assuming that the trial judge’s
weighing of prejudice and probative value corrected the pretrial judge’s error, both
judges were examining the proposed evidence under the mistaken conclusion that
the FTA and bail jumping charge amounted to flight evidence with the purpose of
inferring consciousness of guilt.
However, as we conclude above, the FTA in the present case does not
amount to flight evidence and cannot be used for the purpose of inferring guilt.
Under the ER 404(b) test, prior to admission of misconduct evidence, the court
must identify the purpose for which the evidence is presented. In the pretrial
motions the purpose was to use the FTA as flight evidence from which to infer
consciousness of guilt. However, because we hold that purpose is not applicable to
the facts of this case, any remaining purpose for the admission of misconduct
evidence would be (as was stated during closing arguments) to show that Slater is
20 State v. Slater (Samuel David Obert), No. 98795-5
the type of person who violates court orders, among any other improper and
negative connotations of missing a required court date. This propensity evidence is
explicitly prohibited under ER 404(b). Without a permissible purpose for the
admission of the misconduct evidence, it would not be admissible. Therefore, under
ER 404(b) and ER 403 the evidence of the FTA would not be cross admissible to
prove the DVNCO charge, and therefore, the fourth factor of the severance test is
not met.
A lack of cross admissibility does not automatically mean that the charges
must be severed. See State v. Bluford, 188 Wn.2d 298, 315, 393 P.3d 1219 (2017).
The defendant must still show that the prejudicial effect of trying the charges
together outweighs the need for judicial economy. Id.
In the present case, we hold that the prejudice to the defendant does outweigh
the need for judicial economy. The pretrial judge acknowledged in this case that
both of the charges involve violations of court orders, and therefore there is higher
than normal prejudice in trying these two charges together. But it is important to
note that is the only similarity between the two charges as they are not connected
or related in any way. As to judicial economy, while two trials are certainly more
time and effort than one trial, the witnesses as to each charge in this case were
different. Witnesses would not be tasked with showing up to both trials. Further, as
we held in Bluford, “because the evidence was not cross admissible, the interest in
21 State v. Slater (Samuel David Obert), No. 98795-5
judicial economy loses much of its force because the State would not have been
required (or allowed) to call all of its witnesses in each separate trial.” Id. at 315-
16; see also State v. Ramirez, 46 Wn. App. 223, 226, 730 P.2d 98 (1986) (abuse of
discretion when the trial court denied the motion to sever when proof of each crime
was inadmissible to prove the other crime). Here, the need for judicial economy is
outweighed by the prejudice to the defendant because the FTA is not admissible as
to the DVNCO charge, the witnesses for the charges do not overlap, and trying the
charges together presents a risk of improper propensity inferences. Accordingly,
the pretrial and the trial judges abused their discretion when they allowed the FTA
in as flight evidence to infer consciousness of guilt and denied the motions to sever
the charges. We reverse the convictions and remand for separate trials on the two
charges.
II. Prosecutorial misconduct during closing argument
We need not decide whether the prosecutor’s comments were ill intentioned
and amounted to prosecutorial misconduct because these comments were made in
light of the trial court’s rulings and we have already held reversal is required based
on these rulings. However, we address the prosecutor’s conduct to highlight the
problematic commentary of the prosecutor caused by the admission of the FTA to
infer consciousness of guilt evidence.
22 State v. Slater (Samuel David Obert), No. 98795-5
Prosecutors have “wide latitude to argue reasonable inferences from the
evidence” to the jury during closing argument. In re Pers. Restraint of Glasmann,
175 Wn.2d 696, 704, 286 P.3d 673 (2012) (plurality opinion). However, the
prosecutor must not refer to evidence that has not been admitted and must not
express a personal opinion on the guilt of the accused. Id. at 705-07. This court
considers the prosecutor’s arguments in the context of the case, the arguments as a
whole, the evidence presented, and the jury instructions. State v. Magers, 164
Wn.2d 174, 192, 189 P.3d 126 (2008) (plurality opinion).
“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.’” Id. at 191 (quoting State v.
Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003)). If the defendant objected to
the offending statement at trial, he must establish that the “misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury's verdict.” State v.
Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). However, “failure to object to
an improper remark constitutes a waiver of error unless the remark is so flagrant
and ill intentioned that it causes an enduring and resulting prejudice that could not
have been neutralized by an admonition to the jury.” Russell, 125 Wn.2d at 86.
“When evaluating whether misconduct is flagrant and ill intentioned, we ‘focus
less on whether the prosecutor's misconduct was flagrant or ill intentioned
23 State v. Slater (Samuel David Obert), No. 98795-5
and more on whether the resulting prejudice could have been cured.’” In re Pers.
Restraint of Phelps, 190 Wn.2d 155, 165-66, 410 P.3d 1142 (2018) (quoting Emery,
174 Wn.2d at 762).
Slater alleges that the prosecutor committed misconduct during closing
argument and rebuttal. Slater argues that the prosecutor’s comments in this case
fall into three general areas. First, “instructing the jury that Mr. Slater was guilty.”
Suppl. Br. of Pet’r at 16. This included making comments such as “If he didn’t do
it, why didn’t he show up for trial call a year ago? Why didn’t he show? . . . The
day that we find out whether this case is going out or not, he’s gone. If he didn’t do
it, why didn’t he show?” 2 VRP (Nov. 15, 2018) at 215-16; see also id. at 219 (“He
didn’t show, because he got cold feet. He didn’t show . . . because he didn’t want
to be there.”), 220 (“If he didn’t do it, why didn’t he show? . . . He just didn’t show
on the day that mattered, because he’s guilty.”), 231 (“He didn’t show because he
didn’t want to face the facts.”), 236 (“He didn’t show because he was there on
August 6th and that’s why he’s guilty and I’m asking you to find him so on both.”).
Slater objected only to the “cold feet” comment, to which the judge stated, “I’ll just
note it’s argument.” Id. at 219.
Second, Slater contends the prosecutor “argu[ed] an impermissible inference
from the evidence.” Suppl. Br. of Pet’r at 16. This included an impermissible
propensity argument, that Slater is one to sign court documents and not adhere to
24 State v. Slater (Samuel David Obert), No. 98795-5
them. See 2 VRP (Nov. 15, 2018) at 222 (“[Y]ou don’t sign documents if you’re
not going to adhere to them. And if you do, you do so at your own peril whether it
be a no-contact order, an omnibus order or your conditions of release. This man is
guilty of both crimes.”).
And third, Slater argues the prosecutor was “appealing to the jury’s passion
to secure a conviction based on emotion, while also skirting the areas of burden-
shifting and denigrating defense counsel’s argument.” Suppl. Br. of Pet’r at 16.
This included comments such as “There’s no evidence that he mistook his date.
There’s no evidence that the court was notified he wasn’t going to be able to make
it.” 2 VRP (Nov. 15, 2018) at 220; see also id. at 222 (“He’s banking on the fact
nobody else saw it and he’s banking on the fact you’re not going to take into
consideration he didn’t show for the second time. Don’t give it to him.”), 231
(“Man, if my case was that weak, I think I’d show up for trial call. I think I’d be
there if there were all those contradictions. I think I’d get this thing out of the way
and move on with my life. I’d show up. He didn’t.”), 235 (“If this case was as weak
as defense counsel says it is, I would have showed up on September 8th.”).
In Glasmann, this court held that the prosecutor committed misconduct when
“[d]uring closing argument, the prosecuting attorney made an electronic
presentation to the jury that graphically displayed his personal opinion that
Glasmann was ‘guilty, guilty, guilty’ of the crimes charged by the State.” 175
25 State v. Slater (Samuel David Obert), No. 98795-5
Wn.2d at 699. The court further held that the repeated use of this imagery
throughout closing “was so pervasive that it could not have been cured by an
instruction.” Id. at 707. The court found the prosecutor’s misconduct was flagrant
and ill intentioned, and that the cumulative effect of the improper comments and
imagery did meet the high bar of being so flagrant and ill intentioned that it required
reversal. Id.
The Court of Appeals, in comparing Glasmann with the present case,
concluded that the prosecutor’s comments were not improper because the
comments on Slater’s guilt “were offered in the context of the prosecutor’s
discussion of flight and consciousness of guilt.” Slater, No. 79335-7-I, slip op. at
12-13. Further, it reasoned that “a timely objection would have allowed for an
instruction that would have cured any prejudice.” Id. at 13.
The Court of Appeals is incorrect. Slater correctly contends, “The
misconduct here stemmed directly from the court’s errors in admitting Mr. Slater’s
missed court date as evidence of consciousness of guilt and denying the severance
motion.” Suppl. Br. of Pet’r at 16. The court’s erroneous ruling gave the prosecutor
permission to repeatedly emphasize the FTA and to improperly equate the FTA
with consciousness of guilt. The repeated focus on Slater’s guilt and propensity to
violate court orders highlighted the exact prejudice that Slater argued in his motion
to sever. This is akin to the inflammatory comments presented in Glasmann.
26 State v. Slater (Samuel David Obert), No. 98795-5
Similarly, it is unlikely that an instruction to the jury would have cured this
line of argument because when Slater did object, the judge stated, “I’ll just note it’s
argument.” 2 VRP (Nov. 15, 2018) at 219. The trial judge’s comment did not and
could not cure the impropriety of the prosecutor’s argument.
CONCLUSION
We reverse the Court of Appeals and hold that the FTA was not flight
evidence and, therefore, should not have been admitted for the purpose of inferring
consciousness of guilt. Accordingly, the trial court erred when it denied the motion
to sever as the charges would not be cross admissible under an ER 404(b) and ER
403 analysis, and the prejudice to Slater outweighed any judicial economy. Further,
failing to sever the charges allowed the prosecutor to make otherwise improper
comments regarding the FTA as consciousness of guilt during closing arguments.
We reverse and remand for separate trials.
27 State v. Slater (Samuel David Obert), No. 98795-5
WE CONCUR.