author: ORME, Judge:

text:
    STATE of Utah, Appellee, v. Douglas John HULSE, Appellant.
    No. 20150298-CA
    Court of Appeals of Utah.
    Filed June 13, 2019
    John Robinson Jr., Salt Lake City, Attorney for Appellant
    Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.
    Opinion
   ORME, Judge:

¶1 Douglas John Hulse (Defendant) appeals his convictions for aggravated assault and unlawful detention. He argues that he received ineffective assistance of counsel because his attorney (Trial Counsel) failed to investigate and use his victim's prior fraud conviction to attack her character for truthfulness, failed to object to allegedly improper expert testimony, failed to object to inadmissible evidence of his abusive nature, and failed to object to inappropriate comments made by the State during closing argument. We affirm.

BACKGROUND

¶2 Defendant and the victim (Victim) were in a turbulent on-again, off-again relationship spanning over 14 years. In 2014, the couple spent Memorial Day weekend camping in Brigham Canyon, where they both ingested "a lot of drugs." By early morning of the following Tuesday-May 27, 2014-Victim wanted to return to their home in Tremonton. Victim testified that she had not used any drugs that morning, but she believed that Defendant had.

¶3 On their way home, the couple decided to visit Defendant's father at a construction site in Brigham City. On the way there, Defendant and Victim started arguing and yelling at each other. Victim testified that such arguments were common when Defendant used drugs. Upon arrival at the construction site, Defendant tried to pull Victim out of the Jeep, but Victim put the vehicle into drive and drove off, heading to Tremonton without Defendant. Victim had almost made it home when her Jeep ran out of gas on the interstate. She texted Defendant, and he brought her some gas-the record does not reveal how. They soon recommenced their arguing. Instead of continuing to Tremonton, they headed back to the construction site in Brigham City for Defendant to retrieve some tools from his father. At the site, Defendant placed the tools between the Jeep's two front seats. The couple had not ceased arguing, so Defendant's father-who at trial described the two as "out of control" and probably "on something"-requested that they leave.

¶4 Defendant and Victim next pulled into a gas station in Brigham City. Defendant grabbed the keys out of the ignition and began walking around. Victim, wanting to go home, began yelling at Defendant and demanding to know where the keys were. Defendant replied that he did not have them. The gas station clerk soon approached them and requested that they move their vehicle because it was blocking traffic at the pumps. Frustrated, Victim continued to demand that Defendant return the keys to the Jeep, and Defendant continued to insist that he did not have them. They were both "screaming and yelling" at each other. After approximately 45 minutes, Defendant, who apparently no longer had the keys or at least pretended he did not, was able to start the Jeep by "hot-wiring" it with a screwdriver.

¶5 Defendant and Victim then left the gas station and headed toward Tremonton, with Defendant behind the wheel. During the drive home, Victim "tr[ied] to be quiet and stay calm" because she knew Defendant was irritated with her. Defendant kept giving Victim "dirty looks," mumbled that he hated her, said that it was her fault that he was like this, and called her a whore. Victim testified that Defendant had previously told her that men should not hit women but that "whores deserve to be beat and die."

¶6 Defendant eventually pulled the Jeep over in Deweyville. Victim immediately became fearful and attempted to escape the vehicle, but Defendant grabbed her by the hair and pulled her back inside. He told her that if she knew "what's good for [her], [she] better stay in the ... f'ing vehicle." He then put Victim in a headlock, bent her over toward him, and started "pounding on" her with his fist and a pellet gun. Defendant hit her in the ribs, on the back, and on the back of her head. Victim managed to break away briefly, but Defendant again grabbed her and slammed her face down onto the tools that he had stored between the seats. One of the tools cut her, leaving a gash across her forehead. While once more holding Victim in a headlock, Defendant pointed the screwdriver he had used to hot-wire the Jeep at her head; again called her a "whore"; and told her "[she] deserved to die, [she'd] be better off dead," and "[her] kids would be better off if [she] was dead." Fearing for her life, Victim managed to escape from Defendant's grasp and ran toward the road. Defendant did not pursue her, but he shouted for her to return to the vehicle.

¶7 Victim was able to convince the driver of a passing truck, who had stopped to see if she needed help, to give her a ride to Tremonton. Once home, one of her neighbors drove her to the emergency room. Although Victim did not sustain a concussion or broken bones, the assault left her covered in cuts and bruises. The hospital notified the authorities, and Deputy Archuletta and Deputy Palmer soon arrived. They discussed the assault with Victim and took photographs of her injuries.

¶8 Defendant was arrested later that evening. While being interrogated by Deputy Palmer, Defendant admitted to being with Victim at the construction site and gas station in Brigham City earlier that day. During the course of the interrogation, however, Defendant gave two differing answers as to where he had last seen Victim. At one point, he told Deputy Palmer that he had last seen her in Deweyville-the location of the assault. But at another time, he stated that he last saw her at the gas station in Brigham City. When Deputy Palmer asked about Victim's injuries, Defendant first stated that "she gets bruises at work." But after the deputy recounted Victim's account to Defendant, he responded, "If she said so."

¶9 The State charged Defendant with one count of aggravated assault, a third-degree felony, see Utah Code Ann. § 76-5-103(1), (2)(a) (LexisNexis 2014), and one count of unlawful detention, a class B misdemeanor, see id. § 76-5-304(1), (4). Defendant pled not guilty to both charges. He was tried in February 2015.

The Prosecution Case

¶10 In its case-in-chief, the State relied on Victim's testimony, photographs of Victim's injuries, the two deputies' testimonies, and a video recording of Defendant's interrogation. Victim's injuries were difficult to discern in the photographs, and the State acknowledged that the injuries were "hard to see." For that reason, the State asked Deputy Archuletta, who took the photographs, to describe each photograph to the jury.

¶11 In laying the foundation for Deputy Archuletta's testimony, the State asked generally about her training and experience. After she replied that she was P.O.S.T. certified, the State inquired whether she had "receive[d] training in injuries involving domestic violence." Deputy Archuletta responded that she had. The State later asked how many domestic violence calls she had responded to during her 17 years of service. Deputy Archuletta responded that she "would not want to even guess" but that "[she'd] had numerous" calls of that nature. The State inquired whether some of the calls involved injuries, to which she replied affirmatively. It then asked whether she knew "the difference between fresh injuries and old injuries," and Deputy Archuletta responded that she did.

¶12 After laying this foundation, the State requested that Deputy Archuletta describe each photograph to the jury and asked whether the injuries depicted in the photographs were "fresh." For example, the following exchange addressed exhibit 2:

[Deputy Archuletta]: Okay. Right here, she had like psoriasis right here and you can see off to the inner portion of the knee fresh markings, red markings. This is a -has, I guess, an abrasion has taken a portion of the psoriasis off. You can see through, up through here like a-more still on the kneecap, the line of like a, I don't know, some type of a dragging, but there's-and this isn't clear here, but there's a line through here and then red up into here.
....
[The prosecutor]: But this spot right here and these spots right here that you pointed to outside of the psoriasis, would you consider those fresh?
[Deputy Archuletta]: ... [Y]es, this is fresh ....

For the other exhibits, Deputy Archuletta indicated that the photographs showed "fresh" injuries, including redness on the back of Victim's head, right arm and wrist, left rib, chin, jaw, nose, right cheekbone, right eye, neck, shoulders, and clavicle. She also identified some scratches, an abrasion on Victim's kneecap, "road rash" and the "stippling of ... blood vessels" on Victim's right neck and shoulder area, and a fresh injury behind her left ear. Deputy Archuletta also identified some "old bruising" on Victim's left leg.

¶13 Trial Counsel did not object to the content of Deputy Archuletta's testimony as a whole, but he did object twice during the course of her testimony. Trial Counsel first objected when the State asked Deputy Archuletta to estimate a time frame for one of Victim's injuries. He next objected to the speculative nature of Deputy Archuletta's opinion concerning the cause of one particular mark. The district court sustained both objections. Trial Counsel did not cross-examine Deputy Archuletta.

¶14 The State next called Deputy Palmer to testify. Because Deputy Palmer was the officer primarily responsible for questioning Victim at the hospital about her injuries, his testimony mainly concerned that conversation and his later interrogation of Defendant. But the State did ask Deputy Palmer whether he was able to observe Victim's injuries at the hospital and whether they appeared to be "fresh." He responded in the affirmative to both questions.

The Defense Case

¶15 Defendant denied that the alleged assault ever took place. Rather, he claimed that Victim sustained her injuries during the camping trip from which they had returned that same day. Specifically, shifting from his initial bruising-at-work theory, he alleged that Victim sustained her injuries the night before while gathering firewood in dense underbrush. To corroborate this theory, Defendant called a friend who had accompanied them on the camping trip. The friend testified that she and Victim had gone searching for firewood on the last night of the trip. She described the terrain as "pretty rough," full of rocks, trees, and fallen branches. As a result, the friend testified that she herself "hit [her] head a couple of times on the trees" and "had scratches all over [her]" arms and legs. Trial Counsel showed the photographs of Victim's injuries to the friend and asked whether they were consistent with the kinds of injuries the friend had sustained while gathering firewood. The friend replied, "Yeah. Definitely."

¶16 In addition to providing an alternative theory concerning the source of Victim's injuries, Trial Counsel attempted to impeach Victim's account in a number of ways. On cross-examination, Trial Counsel noted that although Victim had testified that Defendant had threatened her with a screwdriver, she made no mention of this in her written statement provided to the police on the day of the assault. To contradict Victim's claim that the tools were located between the two front seats of the Jeep at the time of the assault, Trial Counsel also called another of Defendant's friends as a witness. She testified that on the day of the assault, Defendant had walked to her house in Brigham City from the construction site and had asked whether he could leave his tools there. After he stayed at her house for approximately 45 minutes, she stated that she drove him to the gas station. Trial Counsel also called Defendant's mother as a witness. She testified that Victim was a "chronical liar" and that Victim admitted to her that, contrary to her denial at trial, she had also used drugs on the day of the assault. Finally, Trial Counsel called Victim as an adverse witness and successfully elicited testimony that she often threatened self-harm to manipulate Defendant.

¶17 Despite Trial Counsel's efforts, the jury convicted Defendant on both charges. He was sentenced to an indeterminate term not to exceed five years on the aggravated assault charge and to a concurrent six-month term on the unlawful detention charge.

Rule 23B Remand

¶18 Defendant timely appealed his conviction. In conjunction with the opening brief, Defendant's prior appellate counsel filed a motion for remand under rule 23B of the Utah Rules of Appellate Procedure requesting an evidentiary hearing regarding four of Defendant's claims of ineffective assistance, which motion we granted. The four claims subject to remand included a claim for Trial Counsel's failure to investigate and present Victim's prior fraud conviction at trial. Following the hearing, the district court held that all four of the ineffective assistance of counsel claims "fail[ed] one or both elements of the [ Strickland ] test."

¶19 Shortly after the rule 23B hearing, current appellate counsel was substituted for prior appellate counsel. With the stipulation of the State and our approval, current appellate counsel filed a replacement brief in which he pursued only one of the four claims of ineffective assistance that were the subject of the rule 23B remand, namely the fraud matter. As such, the claim of ineffective assistance for failure to investigate and use Victim's prior fraud conviction is the only claim dealt with in the rule 23B hearing that is currently before us. Therefore, we address that matter and three other claims of ineffective assistance newly pursued on appeal, and so we have only limited occasion to consider the rule 23B hearing.

ISSUES AND STANDARDS OF REVIEW

¶20 Defendant alleges that Trial Counsel rendered ineffective assistance of counsel when he (1) failed to investigate and use Victim's prior fraud conviction to impeach her testimony at trial, (2) failed to object to Deputy Archuletta's improper expert testimony, (3) allowed the State to introduce inadmissible character evidence of Defendant's abusive behavior, and (4) failed to object to inappropriate comments made by the State during closing argument. Defendant's first claim of ineffective assistance was subject to the rule 23B remand. See Utah R. App. P. 23B. "In ruling on an ineffective assistance of counsel claim following a Rule 23B hearing, we defer to the district court's findings of fact, but review its legal conclusions for correctness." State v. King , 2017 UT App 43, ¶ 13, 392 P.3d 997 (quotation simplified). The remaining claims were not subject to the remand. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

ANALYSIS

¶21 "To ensure a fair trial, the Sixth Amendment of the U.S. Constitution guarantees [to a criminal defendant] the right to effective assistance of counsel." State v. Campos , 2013 UT App 213, ¶ 23, 309 P.3d 1160. To prevail on an ineffective assistance of counsel claim, a defendant must first establish that "counsel's performance was deficient." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient when it falls below an "objective standard of reasonableness," id. at 688, 104 S.Ct. 2052, which requires a defendant to "overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel's actions," State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis in original) (quotation otherwise simplified). We will therefore "not second-guess trial counsel's legitimate strategic choices, however flawed those choices might appear in retrospect," State v. Tennyson , 850 P.2d 461, 465 (Utah Ct. App. 1993), "unless there is no reasonable basis supporting" those decisions, Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified).

¶22 After a defendant overcomes the high threshold of demonstrating that his counsel performed deficiently, he must next "show that the deficient performance prejudiced the defense." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Counsel's deficient performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A defendant's inability to establish either element defeats a claim for ineffective assistance of counsel." State v. Reid , 2018 UT App 146, ¶ 19, 427 P.3d 1261.

I. Prior Fraud Conviction

¶23 Defendant first alleges that Trial Counsel rendered ineffective assistance by not investigating the facts underlying Victim's prior fraud conviction and not using that conviction to attack her character for truthfulness at trial. Victim had claimed benefits on behalf of children who no longer resided with her, and she was consequently convicted of workers' compensation fraud, a third-degree felony, in October 2011. Defendant argues that Trial Counsel's failure to investigate and use her conviction to impeach Victim at trial was particularly egregious because, due to the he-said-she-said nature of the evidence, "the entire trial was ... largely a test of [Victim's] credibility."

¶24 Following the rule 23B hearing, the district court determined that Trial Counsel did not render ineffective assistance. We agree. Trial Counsel's decision not to investigate Victim's prior fraud conviction or present it at trial did not prejudice Defendant's defense for two reasons.

¶25 First, although Trial Counsel did not use Victim's prior conviction to attack her character for truthfulness, he directly challenged the believability of Victim's testimony in a number of ways. On cross-examination of Victim during the State's case-in-chief, Trial Counsel noted that Victim made no mention of Defendant threatening her with a screwdriver in the written statement she made on the day of the assault. Later, during the defense case, Trial Counsel called Victim as an adverse witness and elicited testimony that she frequently threatened self-harm to manipulate Defendant. Trial Counsel also called a number of witnesses who provided testimony that contradicted portions of Victim's version of events: Defendant's mother testified that Victim had admitted to also using drugs on the day of the assault; Defendant's father testified that both Defendant and Victim appeared to be under the influence of drugs that day; Defendant's friend testified that Defendant left his tools-one of which Victim testified to cutting her forehead on-at her house in Brigham City; and Defendant's co-camper friend testified that Victim's injuries were similar to those she herself had sustained on that same camping trip while finding and hauling firewood, thus providing an alternative explanation for Victim's injuries.

¶26 Given that Trial Counsel's efforts to directly contradict the content of Victim's testimony failed to sufficiently undermine her credibility in the eyes of the jury, we are not persuaded that it is reasonably probable that a limited mention of her prior workers' compensation fraud conviction, see infra ¶ 27, would have tipped the scales in favor of Defendant.

¶27 Second, although Trial Counsel did not know the specific details of Victim's fraud conviction, his limited knowledge of Victim's criminal past would have nonetheless allowed him to ask her whether she had ever been convicted of fraud. But we are not convinced that the specific details and circumstances of Victim's fraud conviction that Trial Counsel's hypothetical investigation would have uncovered would have been admissible at trial. Had Trial Counsel chosen to attack Victim's character for truthfulness, he likely would have been permitted to introduce the specific details of her workers' compensation fraud conviction only if she first "attempt[ed] to explain away the effect of the conviction or to minimize [her] guilt." See State v. Alzaga , 2015 UT App 133, ¶ 34, 352 P.3d 107 (quotation simplified). See id. ¶ 33 (stating that rule 609 of the Utah Rules of Evidence does not generally permit "an examining attorney [to] parade the details of the prior crime in front of the jury") (quotation simplified); State v. Colwell , 2000 UT 8, ¶ 33, 994 P.2d 177 ("When impeaching a defendant, it is permissible to inquire into the fact and nature of the prior conviction, but not the details or circumstances surrounding the event, absent unusual circumstances."). We decline to speculate whether Victim, if confronted with her prior fraud conviction, would have attempted to explain away or minimize the crime, thereby rendering the fruits of Trial Counsel's hypothetical investigation admissible. See State v. Nelson , 2015 UT 62, ¶ 10, 355 P.3d 1031 ("Proof that [trial counsel's] acts or omissions prejudiced [the defendant] must be a demonstrable reality and not a speculative matter.") (quotation simplified).

¶28 Thus, given Trial Counsel's many other efforts to directly contradict Victim's testimony and the limited way in which Trial Counsel would have been allowed to present the fruits of a hypothetical investigation, Defendant has not demonstrated a "reasonable probability of a different outcome at trial sufficient to undermine our confidence in the jury's verdict." See State v. Garcia , 2017 UT 53, ¶ 48, 424 P.3d 171.

II. Expert Testimony

¶29 Defendant next argues that Trial Counsel furnished ineffective assistance by permitting Deputy Archuletta to give improper expert testimony. Defendant asserts that the State called Deputy Archuletta to testify as an expert without first notifying the defense and that Trial Counsel was therefore ineffective by failing to object to her testimony. See Utah Code Ann. § 77-17-13(1)(a) (LexisNexis 2015) (requiring any party in a felony case to give "notice [of its intent to use an expert witness] to the opposing party as soon as practicable but not less than 30 days before trial"). In support of his contention that Deputy Archuletta testified in an expert capacity, Defendant points both to the foundation that the State laid in preparation for her testimony and to the content of her testimony.

¶30 Defendant first asserts that the State asked two expert-related questions when laying the foundation for Deputy Archuletta's testimony: whether she had received training in injuries involving domestic violence and whether she knew how to differentiate between new and old injuries. On that foundation, Defendant claims, Deputy Archuletta proceeded to give expert testimony. Defendant argues that although "not all of [Deputy] Archuletta's testimony was in the nature of an expert ... many of her answers veered into [the territory of] forensic expert" testimony. Defendant points to Deputy Archuletta's use of "technical terms," such as "stippling of blood vessels" and "clavicle," and to her characterization of most of Victim's injuries as "fresh," which Defendant asserts "calls for some level of forensic expertise."

¶31 We disagree. Utah Code section 77-17-13(1)(a) did not apply to Deputy Archuletta's testimony because, despite the foundation laid by the State, the subject matter of her testimony fell within the confines of proper lay opinion. Trial Counsel therefore did not perform deficiently by not objecting to the deputy's testimony.

¶32 A lay witness may offer an opinion about matters that are "rationally based on the witness's perception," helpful to the jury in "determining a fact in issue," and "not based on scientific, technical, or other specialized knowledge." Utah R. Evid. 701. Lay opinion testimony is proper and an expert witness is not required if "an average bystander would be able to provide the same testimony." State v. Rothlisberger , 2006 UT 49, ¶ 34, 147 P.3d 1176. If the opinion testimony involves "knowledge [that] is not within the ken of the average bystander," an expert witness is required. Id.

¶33 In the present case, the State asked Deputy Archuletta to describe the injuries in the photographs and to opine as to whether they were "fresh." Defendant recognizes that Deputy Archuletta's description of the injuries depicted in the photographs was nonexpert testimony and challenges as improper expert testimony only the portions of her testimony where she used technical terms and characterized the injuries as "fresh."

¶34 Defendant identifies only two technical terms used by the deputy in her testimony: "stippling of blood vessels" and "clavicle." Even assuming, without deciding, that both qualify as technical terms, the use of a total of two such terms throughout the course of her entire testimony is insufficient to elevate her testimony to expert status.

¶35 More importantly, the average person is generally capable of differentiating new scratches and bruises from old scratches and bruises. As such, Deputy Archuletta's opinion as to the freshness of Victim's wounds was well "within the ken of the average bystander." See id. Cf. State v. Lagasse , 410 A.2d 537, 543 (Me. 1980) (holding that a witness's observation that the victim's "skin [was] swollen and red, it looked like she had been slapped" was proper lay opinion testimony because "[t]he bruises [the witness] observed are consistent in common knowledge with those which would be present on the face of one who had been 'slapped' "); In re J.C. , 892 S.W.2d 87, 89 (Tex. Ct. App. 1995) (holding that testimony regarding the age of bruises was properly admitted as lay opinion testimony). Having personally observed Victim's injuries at the hospital, Deputy Archuletta went no further than to state that she believed most of the injuries to be "fresh." On the few occasions that the State sought her opinion on matters that would arguably require specialized knowledge-when she was asked to estimate the timeframe of one injury and when she speculated as to the cause of another injury-Trial Counsel immediately objected, and the court sustained the objections.

¶36 Thus, despite the nature of the foundation that the State laid for Deputy Archuletta's testimony, we conclude that the subject matter of the testimony, to the extent it was opinion testimony at all, was lay opinion and well within the confines set by rule 701 of the Utah Rules of Evidence. Trial Counsel therefore did not perform deficiently by not objecting to the testimony on that ground. See State v. Akers , 2018 UT App 235, ¶ 22, 438 P.3d 70 ("Defense counsel does not render deficient performance if counsel refrains from making futile objections.").

III. Additional Claims

¶37 Defendant makes two additional claims of ineffective assistance of counsel. First, Defendant argues that Trial Counsel erred by allowing the State to introduce improper character evidence of Defendant's abusive nature. Second, Defendant claims that Trial Counsel performed deficiently when he did not object to inappropriate comments made by the State during its closing argument. We hold that neither claim supports a determination of ineffective assistance of counsel.

A. Character Evidence

¶38 Defendant argues that by not objecting, Trial Counsel twice allowed the State to introduce otherwise inadmissible evidence of his abusive nature. He asserts that the evidence was inadmissible because he had not opened the door to evidence of that character trait. See Utah R. Evid. 404(a)(1), (a)(2)(B) ; State v. Leber , 2009 UT 59, ¶ 13, 216 P.3d 964. The State also referenced this evidence during its opening statement and closing argument-again without Trial Counsel's objection.

¶39 The first instance occurred during the State's direct examination of Victim. The State asked Victim for the reason she surmised that Defendant had used drugs on the day of the assault, and this exchange ensued:

[Victim]: I know that there was still dope around with us.
[The prosecutor]: And do you know his behavior?
[Victim]: Evil.
[The prosecutor]: Well, in terms of the drugs ... was it consistent with that behavior?
[Victim]: Yes.

Trial Counsel did not object to this brief exchange. The second instance occurred after Defendant called Victim as an adverse witness and elicited testimony that she often threatened self-harm in order to manipulate Defendant. During the State's cross-examination of Victim, the following exchange unfolded:

[The prosecutor]: You mentioned in your testimony that you only got upset and threatened to hurt yourself when, in your words, "he beats the hell out of me?"
[Victim]: Uh-huh (affirmative).
[The prosecutor]: Is that what was happening [when you sent Defendant a text message threatening self-harm]?
[Victim]: You know what, it started to get to where we went through a pattern ... [proceeds to describe pattern of abuse].
[The prosecutor]: So this behavior that you're talking about, on May 27th, 2014, the incident we're talking about, was he in one of those moments?
[Victim]: He had been up, like I said, I know for six days for sure that he'd been up, maybe seven.
[The prosecutor]: Violent?
[Victim]: Very violent.
...
[The prosecutor]: And did this for 14 years?
[Victim]: He's been doing it for a lot longer.

Trial Counsel once more did not object to this line of questioning. Defendant argues that Victim's testimony about Defendant's prior abuse was inadmissible character evidence under rule 404(a) of the Utah Rules of Evidence because he had not opened the door to it and that Trial Counsel's performance was deficient because he allowed it to reach the jury. We disagree.

¶40 The first exchange during which Victim called Defendant "evil" was brief, unprompted, and quickly passed over by the State. It is conceivable that a competent attorney would have chosen not to draw the jury's further attention to the fleeting exchange by objecting to its content. See State v. Spinks , 2003 UT App 182U, para. 8, 2003 WL 21371850 ("[I]t is conceivable that defense counsel opted for the sound strategy of not calling further attention to those remarks by objecting to them."); State v. Shepherd , 2015 UT App 208, ¶ 52, 357 P.3d 598.

¶41 Regarding the second exchange, Defendant has not demonstrated that Trial Counsel's failure to object to the exchange prejudiced his defense, particularly in light of a third exchange that Defendant does not challenge. This prior, third exchange occurred during the State's case-in-chief. While cross-examining Victim, Trial Counsel asked whether she hit Defendant at the gas station in Brigham City. Victim replied that she did not remember, but that it was possible. On redirect, the topic was revisited during this exchange:

[The prosecutor]: Now, there was a discussion, [Trial Counsel] asked ... if you hit [Defendant] when you were at [the gas station].
[Victim]: Uh-huh (affirmative).
[The prosecutor]: And you said, "I may have."
[Victim]: I-I may have, I may not have. I honestly don't know and-
[The prosecutor]: Is hitting each other typical of this relationship?
[Victim]: Yes.
[The prosecutor]: You wouldn't deny that you hit him before?
[Victim]: Oh, I've hit him before.
[The prosecutor]: And you wouldn't deny that he's hit you before?
[Victim]: Oh, he's hit me many ... times.

¶42 In light of this third exchange, in which the jury heard testimony regarding Defendant's abusive behavior toward Victim, Defendant has failed to demonstrate how the second exchange prejudiced his defense. The jury had already heard testimony covering ostensibly the same subject matter as the second exchange and, in light of this, it is unlikely that a jury would have reached a different verdict had Trial Counsel objected to the second exchange. Cf. State v. Yalowski , 2017 UT App 177, ¶ 38, 404 P.3d 53 (stating that because "nearly identical testimony was introduced" by another witness, "the jury would have had the same information before it and likely would have reached the same conclusions").

B. Prosecutorial Misconduct

¶43 Defendant lastly challenges Trial Counsel's failure to object to an inappropriate statement the State made during closing argument. Toward the middle of its rebuttal, the State referenced the 14 years of abuse by Defendant that Victim had suffered, stating,

Finally, finally, finally, she comes forward and she says, "I've had enough, I'm done." And that's why we're here today, not because she was a drug addict, not because she liked [being] abused, because she finally said, "I don't want this life anymore. Help me." That's why we're here.

Defendant argues that this statement amounted to prosecutorial misconduct and that Trial Counsel performed deficiently by not objecting or taking other action to address the misconduct.

¶44 "When we review an attorney's failure to object to a prosecutor's statements during closing argument, the question is not whether the prosecutor's comments were proper, but whether they were so improper that counsel's only defensible choice was to interrupt those comments with an objection." State v. Houston , 2015 UT 40, ¶ 76, 353 P.3d 55 (emphasis in original) (quotation otherwise simplified). Although the State's comment likely did cross the line in terms of proper argument, it was not so improper as to render Trial Counsel ineffective for not objecting to it. Moreover, there appears to be a sound tactical basis not to object to the statement.

¶45 The challenged statement was in the middle of the rebuttal portion of the State's closing argument. The statement was followed by a lengthy discussion of, among other things, the evidence, the credibility of Defendant's witnesses, and the elements of the crime. An appeal to the jurors' emotions and sense of duty to protect Victim was certainly not the main focus of the rebuttal. Trial Counsel therefore may well have chosen not to object to the statement to avoid highlighting Defendant's past abuse of Victim to the jury. See State v. Hummel , 2017 UT 19, ¶ 110, 393 P.3d 314 ("[T]he law recognizes the prerogative of opposing counsel to swallow their tongue [during closing argument] instead of making an objection that might have the risk of highlighting problematic evidence or even just annoying the jury."). Accordingly, Trial Counsel did not perform deficiently by not objecting to the statement made by the State during rebuttal.

CONCLUSION

¶46 Defendant did not receive ineffective assistance in any of the four instances to which he has directed our attention. Defendant was not prejudiced by Trial Counsel's failure to investigate the underlying facts of Victim's fraud conviction, because the fruits of the hypothetical investigation would very likely have been inadmissible at trial. Trial Counsel did not perform deficiently by not objecting to Deputy Archuletta's testimony regarding Victim's injuries, because it did not amount to expert testimony. Defendant has not demonstrated that he was prejudiced by the admission of evidence of his abusive behavior toward Victim, because such evidence was admitted at a different point during trial. Finally, the inappropriate statement made by the State during closing argument was not so egregious as to require competent counsel to object.

¶47 Affirmed.

      "On appeal, we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues raised on appeal." State v. Daniels , 2002 UT 2, ¶ 2, 40 P.3d 611.

      Victim acknowledged to the police that she does get bruised at work, but she insisted that the bruises in the photographs "were not from work." The record does not disclose the nature of her job, in connection with which bruising is commonplace.

      The audio portion of the recording left much to be desired. The judge noted that "there seems to be a lot of mumbling and the recording is poor," but he overruled Defendant's objection to its admissibility based on this deficiency.

      "P.O.S.T." is an acronym for "Peace Officer Standards and Training," the program by which law enforcement officers in Utah are trained and certified. See Utah Code Ann. § 53-6-205 (LexisNexis 2015) ; id. § 53-13-105 (Supp. 2018).

      Although documentary evidence of Victim's conviction is not part of the record, the State stipulated at the 23B hearing that Victim was convicted of workers' compensation fraud in 2011.

      In reaching this decision, the district court referenced Trial Counsel's testimony explaining that he did not bring up Victim's past fraud conviction because he did not wish the jury to perceive him as bullying a sympathetic victim. Determining this to be an effective trial strategy, the court concluded that Defendant's "assertion fails the first element of the ineffective assistance test." We affirm the district court's conclusion, but on different grounds. See State v. Van Huizen , 2019 UT 01, ¶ 39, 435 P.3d 202 ("An appellate court may affirm the judgment appealed from on any legal ground or theory apparent on the record.") (quotation simplified). Because Trial Counsel's decision not to investigate or use Victim's fraud conviction did not prejudice the defense, we do not reach the first element of the ineffective assistance test. See Archuleta v. Galetka , 2011 UT 73, ¶ 41, 267 P.3d 232 ("In the event it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we will do so without analyzing whether counsel's performance was professionally unreasonable.") (quotation simplified).

      When asked at the rule 23B hearing whether he knew of Victim's workers' compensation fraud conviction, Trial Counsel responded that he generally "knew that she had a fraud," but he did not investigate the matter any further.

      However, Defendant does challenge those nonexpert portions of Deputy Archuletta's testimony as independently inadmissible under rule 701 of the Utah Rules of Evidence. Rule 701 states that lay opinion is proper when it, among other things, helps the jury "to clearly understand[ ] the witness's testimony or to determin[e] a fact in issue." Utah R. Evid. 701(b). Defendant asserts that Deputy Archuletta's description of the injuries depicted in the photographs was unhelpful because "the jury could see the photos for themselves and use their shared experience to evaluate them." We disagree. Although the jury was certainly not prevented from forming its own conclusions based on its observations of the photographs, the extent of Victim's injuries was difficult to discern in the photographs. The jury therefore benefitted from hearing descriptions of the injuries from Deputy Archuletta-the person who took the photographs and was able to observe the injuries in person-because it helped focus the jurors on important aspects of the photographs.

      Moreover, even if Deputy Archuletta's testimony had amounted to improper expert testimony, Trial Counsel still would not have been deficient for not objecting. Defendant cites State v. Doutre , 2014 UT App 192, 335 P.3d 366, in which we held that "[t]rial counsel was ... deficient for failing to object to the State's failure to give reasonable prior notice of [a witness's] expert testimony." Id. ¶ 29. However, we can conceive of a sound tactical basis in the present case for not objecting to the deputy's testimony, which was not the situation in Doutre . Cf. id. ¶ 21 ("[W]e cannot conceive of a sound [tactical] basis for failing to object [to expert witness testimony] on rule 702 grounds in this case."). Trial Counsel may have chosen not to object to Deputy Archuletta's testimony concerning Victim's injuries given his plan to later elicit similar testimony from Defendant's co-camper friend. Both Deputy Archuletta and Defendant's friend were shown pictures of Victim's injuries and were asked to opine about them. The State asked Deputy Archuletta to describe the injuries and to give her opinion whether they were "fresh." Similarly, Trial Counsel asked Defendant's friend whether Victim's injuries were consistent with those she had obtained while gathering firewood with Victim. We can readily conceive that a competent attorney in Trial Counsel's position may have deliberately chosen not to object to Deputy Archuletta's testimony in order to set a testimonial baseline that would help overcome potential objections to the content of Defendant's co-camper friend's testimony-especially considering that the friend's testimony was crucial in establishing the defense's alternate theory as to the source of Victim's injuries.
      Furthermore, Deputy Palmer also testified that Victim's injuries appeared to be "fresh," but Defendant does not challenge his testimony on appeal. Therefore, at least for purposes of his ineffective assistance of counsel claims, Defendant was not prejudiced by Deputy Archuletta's testimony because "the jury would have had the same information before it and likely would have reached the same conclusions." See State v. Yalowski , 2017 UT App 177, ¶ 38, 404 P.3d 53.

      Defendant primarily argues these two claims in terms of the cumulative error doctrine. He alleges that the prejudicial effect of these two additional claims combined with the prejudicial effect of the claims discussed in sections I and II justify the application of the doctrine. See State v. Perea , 2013 UT 68, ¶ 33, 322 P.3d 624 ("We will reverse under the cumulative error doctrine only if the cumulative effect of the several errors undermines confidence that a fair trial was had.") (quotation simplified). Because we determine Trial Counsel did not perform deficiently in connection with the claims discussed in sections II and III.B., see id. ("[I]f [a defendant's] claims do not constitute error ... we will not apply the doctrine."), it follows that even assuming Trial Counsel performed deficiently in the claims discussed in sections I and III.A., the prejudice that resulted from Trial Counsel's deficient performance is still insufficient to undermine our confidence that Defendant was given a fair trial. In ruling as we do, we rely on the limited way in which Trial Counsel would have likely been permitted to present the fruits of his hypothetical investigation to the jury. See supra ¶ 27. And we are mindful of the fact that the jury would still have heard testimony of Defendant's abusive behavior regardless of whether Trial Counsel objected to the second exchange. See infra ¶¶ 41-42; State v. Martinez-Castellanos , 2018 UT 46, ¶ 42, 428 P.3d 1038 (stating that "before reversing a verdict or sentence under the cumulative error doctrine," appellate courts "must determine that (1) an error occurred, (2) the error, standing alone, has a conceivable potential for harm , and (3) the cumulative effect of all the potentially harmful errors undermines its confidence in the outcome") (emphasis added).

      Although Defendant is correct in so stating with regards to the first and second exchanges, see infra ¶ 39, Defendant did open the door to evidence of that particular character trait in a third exchange that Defendant has not addressed on appeal, see infra ¶ 41.

      We do not decide whether Trial Counsel performed deficiently by not objecting to the second exchange.


source: Caselaw Access Project

author: GORDON McCLOUD, J. (concurring)

license: Public Domain

text:
    STATE of Washington, Respondent, v. Tomas Mussie BERHE, Petitioner.
    No. 95920-0
    Supreme Court of Washington.
    Argued: March 19, 2019 Filed: JULY 18, 2019
    Nancy P. Collins, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, for Petitioner.
    Dennis John McCurdy, Ann Marie Summers, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondent.
    Jeffery Patton Robinson, Attorney at Law, 810 3rd Avenue, Suite 500, Seattle, WA 98104-1619, Twyla Carter, ACLU National, 125 Broad Street, Floor 18, New York, NY 10004-2427, Erika Joyce Evans, Seattle City Attorney's Office, 701 5th Avenue, Suite 2050, Seattle, WA 98104-7095, Antoinette M. Davis, American Civil Liberties Union of Washington, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, Margaret Ji Yong Pak, MBE Law Group PLLC, 1001 4th Avenue, Suite 3200, Seattle, WA 98154-1003, for Amicus Curiae (American Civil Liberties Union Foundation, American Civil Liberties Union of Washington, Loren Miller Bar Association, South Asian Bar Association).
    YU, J
    ¶1 This case addresses the standards and procedures that apply when trial courts must determine whether an evidentiary hearing is necessary on a motion for a new trial based on allegations that jury deliberations were tainted by racial bias. We recognize that when allegations of juror misconduct arise after the verdict, trial courts have discretion to determine whether an evidentiary hearing is necessary. However, there are limits to that discretion, particularly in cases of alleged racial bias that deprives a defendant of his or her constitutional right to a. fair trial by an impartial jury.
    ¶2 A jury convicted petitioner Tomas Berhe of murder and assault. After the trial, juror 6 came forward, alleging that racial bias during jury deliberations influenced the verdict. The trial court denied Berhe's motion for a new trial without an evidentiary hearing, instead relying solely on written declarations prepared with the aid of counsel. This was an abuse of discretion for two reasons.
    ¶3 First, the court did not exercise sufficient oversight of the process, allowing counsel to taint several jurors with inappropriate questions about their deliberations. Second, the court did not conduct a sufficient inquiry before determining that an evidentiary hearing was unnecessary. We therefore vacate the trial court's order denying Berhe's motion for a new trial and remand for further inquiry and other proceedings as necessary.
    FACTUAL AND PROCEDURAL BACKGROUND
    ¶4 On July 22, 2013, multiple gunshots were fired through the closed passenger window of a parked car. One man was killed and another was injured. Witnesses described the shooter as an African-American male, who fled the scene of the shooting in a black sedan. Shortly after, police officers stopped a vehicle matching the witnesses' descriptions and identified Berhe as the shooter. Berhe was charged with first degree murder and first degree assault, each with a firearm enhancement. The case was tried to a jury.
    ¶5 During voir dire, the trial court asked the potential jurors "whether anybody has any close friends or relatives that have been accused of a crime or charged with a crime or convicted of a crime." Reporter's Tr. on Appeal (Jan. 25, 2016) at 78. Eleven potential jurors indicated they did. The court then asked if any of those potential jurors "felt you or your close friend or relative was treated unfairly by the criminal justice system." Id. at 79. Only juror 6 responded in the affirmative. The court did not ask any follow-up questions at that time.
    ¶6 The next day, the prosecutor followed up with each juror who had indicated they knew someone accused of a crime. When juror 6 was asked, "[D]o you think that you could be a fair and impartial juror in this case?" juror 6 responded, "Probably so, based on the evidence." Verbatim Report of Proceedings (VRP) (Jan. 26, 2016) at 498-99. The prosecutor then asked for more information about the person who she felt was treated unfairly by the criminal justice system. Juror 6 explained that her nephew had been convicted of stealing and that she felt his sentence was unjust. Juror 6 did not mention at the time that her son's friend had been wrongly accused of murder. However, after the trial, two other jurors stated that this was discussed during deliberations.
    ¶7 After the parties exercised their peremptory challenges, 13 jurors were seated, including juror 6. One juror was to be an alternate, and the court and counsel "agreed that we would pick the alternate via random pick, a number out of a jar." VRP (Feb. 24, 2016) at 3346. However, outside the presence of the jury, the court noted for the record that juror 6 was the only African-American juror and stated that "it would be very unfortunate if Juror No. 6 were to be the alternate." Id. Therefore, with counsel's agreement, the court removed juror 6's name from the jar, and a different juror was randomly selected to be the alternate.
    ¶8 The jury found Berhe guilty of all the charged offenses. The court polled the jury after the verdict was delivered, asking each juror, "[W]ere these your individual verdicts?" and were they "the verdicts of the entire jury?" VRP (Mar. 1, 2016) at 3364-66. Each juror answered yes to both questions. Id.
    ¶9 The next day, juror 6 contacted defense counsel on her own initiative to express concerns about the case, as discussed in more detail below. Juror 6 also contacted the court that day, and "[s]he did express a lot of emotional distress following the jury verdict." VRP (Apr. 6, 2016) at 109. It is not clear from the record whether the trial court was aware of any specific reasons for juror 6's distress. The court's bailiff "got [juror 6] in contact with a counselor, a jury counselor, and she spoke with a counselor." Id.
    ¶10 Approximately one week later, Berhe moved to extend time to file a motion for a new trial, asserting that his "right to a fair trial has been materially affected" and requesting "additional time to fully investigate." Clerk's Papers (CP) at 532. Defense counsel stated that the basis for the motion for a new trial would be "[j]uror misconduct and prosecutorial misconduct" but did not elaborate on the nature of the alleged misconduct. Id. at 536. The court held a hearing on March 10, 2016, before deciding whether there was good cause for an extension of time.
   ¶11 The court opened by noting the defense claimed "juror misconduct and prosecutorial misconduct. So that's basically all we know." VRP (Mar. 10, 2016) at 3. Defense counsel then elaborated on specific instances of alleged prosecutorial misconduct during various phases of the trial. Regarding the alleged juror misconduct, defense counsel explained that

we were contacted by-unsolicited-by one juror who indicated that after three and a half days of deliberations, she felt that there was juror misconduct and that she-I guess you could use the word "acquiesced" to a guilty verdict. Against her wishes, ultimately.
So she contacted us very upset, and we need time to get affidavits, investigate that further, and then brief that issue.

Id. at 6. The court noted on the record that juror 6 had contacted the court and had been put in touch with a jury counselor, and that the court was aware juror 6 had also contacted defense counsel.

¶12 The court "was contacted by another juror, too, [who] said that she was contacted by someone on the defense team, unsolicited." Id. at 6-7. Defense counsel acknowledged contacting "most or all of the other jurors," using contact information obtained from juror 6. Id. at 7, 22. The State expressed concerns about juror privacy and "the defense conducting a fishing investigation ... and going out of their way to contact jurors in an attempt to find what they can label as misconduct." Id. at 10. Although the court granted Berhe's motion to extend time, it recognized the State's concerns and stated that the juror who was contacted by the defense "was not happy about being contacted." Id. at 11. Noting the difficulty of the trial, the court admonished defense counsel that initiating contact with jurors was not "appropriate." Id .

¶13 To accommodate both the jurors' privacy and the defense's interest in obtaining more information, the court sent a letter to all the jurors notifying them that "the lawyers would like the opportunity to talk with you." CP at 292. The court assured the jurors that it had advised counsel "nobody should initiate contact with any juror," but it also stated that jurors were free to contact counsel if they wished to do so. Id. The letter included contact information for both the defense and the prosecution. The record does not indicate whether the trial court or the State were aware of any allegations of racial bias during jury deliberations at the time this letter was sent.

¶14 On March 28, 2016, Berhe filed his motion for a new trial and requested an evidentiary hearing based on alleged prosecutorial misconduct and two types of alleged juror misconduct: consideration of extrinsic evidence and racial bias. Regarding the racial bias claim, Berhe contended that the "jurors' treatment of Juror #6, the sole African-America[n] juror on the panel, evidenced by the disparity and derision towards her during deliberations, is clear evidence of an actual or implied racial bias by one or more members of the jury." Id. at 458. This claim was supported by a written declaration from juror 6, which was presented on defense counsel's stationery and dated March 25, 2016.

¶15 Juror 6 declared, "I did not agree with the verdict on March 1, 2016 and I do not agree with it now." Id. at 474. She explained that "[f]or most of the deliberations, 8 jurors wanted to vote to convict. The remaining four were either voting Not Guilty or shifted between Not Guilty and Uncertain." Id. at 475. However, according to juror 6, "I was the only one accused of being 'partial' and 'close-minded' because of my views on acquittal" and "I was repeatedly accused of being 'partial' because I was the only African-American juror on the panel in a trial with an African-American defendant." Id. Juror 6 was ultimately "the last hold-out before a verdict was reached" and stated that she "only agreed to the Guilty verdicts because I felt emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors." Id. at 475-76.

¶16 Juror 6 provided examples of this derision, stating that she "tried to discuss the lack of concrete evidence that Mr. Berhe was the shooter, but other jurors were outright dismissive." Id. at 475. Juror 6 "suggested that [Berhe] could have taken the gun from the real shooter," but her "idea was mocked as 'stupid' and 'illogical,' " making her feel "personally ridiculed in a way the other dissenting jurors were not." Id. In addition, juror 6 contended that during deliberations,

one juror pointed out that if [Berhe's] pants were so big and baggy that he had to hold them up to walk down Eastlake, why didn't he do the same when he exited the car during the stop by police. I rhetorically commented, "What would have happened if he did that?" Several of the jurors as a group interpreted that as a comment on police misconduct towards African-Americans and loudly mocked me for my response, while others sat quietly.

Id. at 476. Finally, juror 6 said she was reviewing her notes on the morning of March 1, 2016, and two other jurors "surrounded me, taunting: 'She's not going to do anything.

She's going to let him walk.' I felt like they were animals and I was their prey. I can only describe it as feeling emotionally and mentally attacked. I felt emotionally abused; so much so that it became debilitating." Id. As a result, juror 6 "couldn't handle the pressure of being a hold-out anymore," and the jury delivered its verdict later that day. Id.

¶17 The State filed a response on April 6, 2016, along with declarations from six other jurors who had contacted the prosecutors. The declarations were all dated either April 3 or April 4, 2016. Each declaration stated that the prosecutors had asked each juror "to answer in my own words the following two questions": (1) "Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?" and (2) "Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias during deliberations?" Id. at 323-28. It is undisputed that these questions were formulated by the prosecutors and sent to the jurors without the court's review.

¶18 Predictably, each juror denied observing or doing anything to juror 6 that was motivated by racial bias. However, juror 11 stated that "during deliberations I appreciated some of the insights Juror #6 had, specifically around the norm in hip-hop culture of baggy pants without a belt and the need to hold them up with one's hands." Id. at 326. Juror 11 was also made "uncomfortable by the frustration expressed" toward juror 6 by some of the other jurors. Id. In addition, juror 13 noted that another juror had directly accused juror 6 of being "bias[ed] based on her history with the law[,] i.e. her nephew who was tried for breaking and entry [who] she felt got too long of a sentence and then her son had a friend who was tried for murder." Id. at 325. Nevertheless, juror 13 declared that "there was nothing said or implied that sounded racial." Id.

¶19 At the hearing on Berhe's motion for a new trial, the court acknowledged juror 6's belief that racial bias played a role in the deliberations, stating, "I understand about implicit bias. But we can't just assume. I think it's equally likely that she felt pressured because she was the lone holdout as she did because of any other reason." VRP (Apr. 6, 2016) at 111. Relying solely on the written declarations, the court ultimately found that "[t]he only evidence to support juror #6's subjective feeling that she was attacked by her fellow jurors because of her race comes from juror #6's declaration," that "[t]he only evidence that members of the jury were implicitly or explicitly racially bias[ed] or inappropriately considered race comes from juror #6's declaration," and that "[d]eclarations provided by several other jurors refuted many of juror #6's claims." CP at 406-07. The court then concluded "that there is insufficient evidence to conclude that juror misconduct occurred with respect to racism-implicit or explicit" and "Mr. Berhe failed to make a prima facie showing of juror misconduct warranting an evidentiary hearing." Id. at 407. The court therefore denied Berhe's request for an evidentiary hearing and his motion for a new trial.

¶20 The Court of Appeals affirmed, reasoning that juror 6's declaration "set forth no allegations of racially charged remarks or race-based derision made by the other jurors" and contained only her "subjective impressions" and "a conclusory allegation lacking particularized factual support." State v. Berhe , No. 75277-4-I, 2018 WL 704724, slip op. at 29, 32 (Wash. Ct. App. Feb. 5, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/752774.pdf. We granted review "on the juror bias issue only." Order, State v. Berhe , No. 95920-0, 429 P.3d 511 (Wash. Nov. 9, 2018).

ISSUE

¶21 Whether the trial court abused its discretion by failing to exercise adequate oversight and failing to conduct a sufficient inquiry before denying Berhe's motion for a new trial without an evidentiary hearing. ANALYSIS

¶22 We recognize that trial courts have discretion to determine whether an evidentiary hearing is necessary before ruling on a motion for a new trial. However, we also recognize that when explicit or implicit racial bias is a factor in a jury's verdict, the defendant is deprived of the constitutional right to a fair trial by an impartial jury. In addition, identifying the influence of racial bias generally, and implicit racial bias specifically, presents unique challenges. Courts must account for all of these considerations when confronted with allegations that explicit or implicit racial bias was a factor in the jury's verdict.

¶23 Unlike isolated incidents of juror misbehavior, racial bias is a common and pervasive evil that causes systemic harm to the administration of justice. Also unlike other types of juror misconduct, racial bias is uniquely difficult to identify. Due to social pressures, many who consciously hold racially biased views are unlikely to admit to doing so. Meanwhile, implicit racial bias exists at the unconscious level, where it can influence our decisions without our awareness.

¶24 Given these unique concerns, courts must carefully control the inquiry when it has been alleged that racial bias was a factor in a jury's verdict. It is essential to ensure that the jurors are not tainted by improper questioning that is likely to elicit defensive responses and impede the fact-finding process. It is also essential that before deciding whether to hold an evidentiary hearing, courts thoroughly consider the evidence and conduct further inquiry if there is a possibility that racial bias was a factor in the verdict.

¶25 In this case, the trial court did not sufficiently oversee the process nor did it conduct a sufficient inquiry before denying Berhe's motion for a new trial without an evidentiary hearing. We therefore vacate the trial court's order denying Berhe's motion for a new trial and remand for further proceedings.

A. Because racial bias raises unique concerns, the no-impeachment rule must yield to allegations that racial bias was a factor in the verdict

¶26 "Central to our jury system is the secrecy of jury deliberations." Long v. Brusco Tug & Barge, Inc., 185 Wash.2d 127, 131, 368 P.3d 478 (2016). The no-impeachment rule protects this secrecy "by 'prevent[ing] the jury from divulging what considerations entered into its deliberations or controlled its action[s].' " Id. at 132, 368 P.3d 478 (alterations in original) (internal quotation marks omitted) (quoting Gardner v. Malone, 60 Wash.2d 836, 843, 376 P.2d 651 (1962) ). This rule "promotes full and vigorous discussion" during jury deliberations and "gives stability and finality to verdicts." Peña-Rodriguez v. Colorado , 580 U.S. ----, 137 S. Ct. 855, 865, 197 L. Ed. 2d 107 (2017).

¶27 However, the no-impeachment rule must yield in "cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged." Warger v. Shauers, 574 U.S. 40, 135 S. Ct. 521, 529 n.3, 190 L. Ed. 2d 422 (2014). A fair trial before an impartial jury "is a criminal defendant's fundamental 'protection of life and liberty against race or color prejudice.' " McCleskey v. Kemp , 481 U.S. 279, 310, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (quoting Strauder v. West Virginia, 100 U.S. 303, 309, 25 L. Ed. 664 (1880) ). An "impartial jury" means "an unbiased and unprejudiced jury," and allowing bias or prejudice by even one juror to be a factor in the verdict violates a defendant's constitutional rights and undermines the public's faith in the fairness of our judicial system. Alexson v. Pierce County, 186 Wash. 188, 193, 57 P.2d 318 (1936). As such, this court recognized long ago that " '[a] trial by a jury, one or more of whose members are biased or prejudiced, is not a constitutional trial.' " City of Seattle v. Jackson, 70 Wash.2d 733, 738, 425 P.2d 385 (1967) (quoting Allison v. Dep't of Labor & Indus., 66 Wash.2d 263, 265, 401 P.2d 982 (1965) ). Racial bias by a juror does not " 'inhere in the verdict or impeach it' " and is therefore not protected by the no-impeachment rule. Id. (quoting Allison , 66 Wash.2d at 265, 401 P.2d 982 ). ¶28 Eventually, the United States Supreme Court reached the same conclusion, recognizing that unlike most types of jury misconduct, racial bias injury deliberations is "a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice." Peña-Rodriguez, 137 S. Ct. at 868. In addition, racial bias is less likely to be discovered before trial because "[g]eneric questions about juror impartiality may not expose specific attitudes or biases that can poison jury deliberations. Yet more pointed questions 'could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.' " Id. at 869 (quoting Rosales-Lopez v. United States , 451 U.S. 182, 195, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981) (Rehnquist, J., concurring in result)). Moreover, "[t]he stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations." Id. Therefore, "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way." Id. ; U.S. CONST . amend. VI.

¶29 The United States Supreme Court has not yet addressed "what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias" or "the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside and a new trial be granted." Id. at 870. However, Washington courts have done so, and we do so again in this case.

¶30 By the time Peña-Rodriguez was decided, Washington had already begun to develop procedures for addressing motions for a new trial based on allegations of racial bias of a juror. State v. Jackson, 75 Wash. App. 537, 879 P.2d 307 (1994), review denied, 126 Wash.2d 1003, 891 P.2d 37 (1995).

After the trial in Jackson , a juror filed a written affidavit alleging that during deliberations, another juror (juror X) "would make comments about 'coloreds,' " such as " '[t]he worst part of [a recent] reunion was that I had to socialize with the coloreds,' " and " '[y]ou know how those coloreds are.' " Id. at 540, 879 P.2d 307. "The context of the comments made it clear that by 'coloreds' [X] meant African-Americans." Id. (alteration in original). The defendant, several alibi witnesses, and the juror who brought the allegations were all African-American. The trial court nevertheless denied the defendant's motion for a new trial without an evidentiary hearing.

¶31 The Court of Appeals reversed, holding that where a juror's statements during deliberations "create a clear inference of racial bias," there is "a valid issue of juror misconduct." Id. at 543, 879 P.2d 307. In such a case, "as a matter of due process, the trial court should ... conduct[ ] an evidentiary hearing before ruling on [a] motion for a new trial" to eliminate any " 'lingering doubt about' " whether the defendant had received a fair trial. Id. (quoting State v. Parnell, 77 Wash.2d 503, 508, 463 P.2d 134 (1969), overruled on other grounds by State v. Fire , 145 Wash.2d 152, 34 P.3d 1218 (2001) ). Had there been an evidentiary hearing in State v. Jackson ,

then the parties would have had the opportunity to examine juror X, and the trial court could have made a determination based on its assessment of the juror's responses, credibility, and demeanor whether or not juror X, in fact, held a racial bias such that he could not have decided the case fairly and impartially. Moreover, through further inquiry, the parties could have examined other jurors about whether race played a role during their deliberations, and juror X would have had the opportunity to explain his statements and the context in which they were made.

Id. at 544, 879 P.2d 307. State v. Jackson thus requires courts to hold an evidentiary hearing before ruling on a motion for a new trial when "the moving party has made a prima facie showing of [racial] bias." Id. at 543-44, 879 P.2d 307.

¶32 We reaffirm that State v. Jackson sets forth the proper general framework for evaluating allegations of racial bias by a juror. This case presents us with an opportunity to expand on that framework and to clarify how it must be tailored to adequately address allegations of implicit racial bias.

B. Courts must carefully oversee any inquiry into whether explicit or implicit racial bias influenced a jury verdict

¶33 We do not question the general rule that "a trial court has significant discretion to determine what investigation is necessary on a claim of juror misconduct." Turner v. Stime, 153 Wash. App. 581, 587, 222 P.3d 1243 (2009). However, a juror's racial bias is uniquely difficult to identify because many people who harbor explicit biases will not admit to doing so, and everyone harbors implicit biases that are difficult to recognize in oneself. Peña-Rodriguez, 137 S. Ct. at 869 ; State v. Saintcalle, 178 Wash.2d 34, 46, 309 P.3d 326 (2013) (plurality opinion), abrogated on other grounds by City of Seattle v. Erickson, 188 Wash.2d 721, 398 P.3d 1124 (2017). Therefore, when a motion for a new trial is based on a claim of explicit or implicit racial bias by one or more jurors, trial courts must tailor their approaches to account for the unique challenges presented.

¶34 Most importantly, it is essential that once a claim of racial bias is raised, investigations into allegations of racial bias are conducted on the record and with the oversight of the court. It is far too easy for counsel, in their role as advocates, to taint the jurors and impede the fact-finding process. This case provides a perfect example.

¶35 The prosecutors' questions-(1) "Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?" and (2) "Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias during deliberations?"-were not designed to elicit the truth of whether racial bias was a factor in the verdict. To the contrary, such "pointed questions 'could well exacerbate whatever prejudice might exist without substantially aiding in exposing it' " by making the jurors feel accused and defensive. Peña-Rodriguez, 137 S. Ct. at 869 (quoting Rosales-Lopez, 451 U.S. at 195, 101 S.Ct. 1629 (Rehnquist, J., concurring in result)). The State rightly conceded as much at oral argument. Wash. Supreme Court oral argument, State v. Berhe , No. 95920-0 (Mar. 19, 2019), at 27 min., 49 sec. through 28 min., 25 sec., video recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.

¶36 Rather than permitting the parties alone to investigate allegations of racial bias, once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury's verdict must be conducted under the court's supervision and on the record. Therefore, as soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified. In addition, as soon as a court becomes aware of allegations that racial bias may have been a factor in the verdict, the court shall take affirmative steps to oversee further inquiry into the matter and instruct counsel not to have any further communications with the jurors unless it is on the record and supervised by the court.

C. The unique challenge of assessing implicit racial bias requires a searching inquiry before a court can decide whether an evidentiary hearing is needed

¶37 In addition to overseeing investigations into racial bias by jurors, courts must tailor their inquiries to the specific allegations presented. In cases like this one, where the alleged racial bias was apparently largely implicit rather than explicit, courts must account for the unique nature of implicit bias.

1. Implicit racial bias is a unique problem that requires tailored solutions

¶38 As this court has recognized, implicit racial bias can affect the fairness of a trial as much as, if not more than, "blatant" racial bias. State v. Monday , 171 Wash.2d 667, 678, 257 P.3d 551 (2011) ; see also GR 37 ; State v. Jefferson, 192 Wash.2d 225, 240, 429 P.3d 467 (2018) (plurality opinion); Saintcalle , 178 Wash.2d at 49, 309 P.3d 326. However, implicit racial bias can be particularly difficult to identify and address. Nevertheless, as our understanding and recognition of implicit bias evolves, our procedures for addressing it must evolve as well.

¶39 Implicit racial bias is neither experienced nor expressed in the same way as explicit racial bias. Explicit racial bias is consciously held, although the biased person may not be willing to admit to having such bias if asked. See Peña-Rodriguez, 137 S. Ct. at 869. Implicit racial bias, however, primarily exists at an unconscious level, such that the biased person is unlikely to be aware that it even exists. This occurs because "[i]t is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them." Saintcalle, 178 Wash.2d at 46, 309 P.3d 326. Implicit racial bias can therefore influence our decisions without our being aware of it "because we suppress it and because we create it anew through cognitive processes that have nothing to do with racial animus." Id.

¶40 Thus, determining whether a person has been influenced by implicit racial bias is inherently challenging. Courts cannot simply ask the person about it and assess the credibility of his or her response because "people are rarely aware of the actual reasons for their discrimination and will genuinely believe the race-neutral reason they create to mask it." Id. at 49, 309 P.3d 326. Therefore, a person may honestly believe and credibly testify that his or her actions were not influenced by racial bias, even where implicit racial bias did in fact play a significant role.

¶41 Nevertheless, we should not "throw up our hands in despair at what appears to be an intractable problem. Instead, we should recognize the challenge presented by unconscious stereotyping ... and rise to meet it." Id. We have made significant strides toward doing so in the context of jury selection, and our efforts there provide a useful starting point for our efforts here.

¶42 "Since 1879, the United States Supreme Court has recognized that race discrimination in the selection of jurors violates the Fourteenth Amendment's guaranty of equal protection." Id. at 43, 309 P.3d 326 (citing Strauder, 100 U.S. at 309-10 ). However, various tests that were used to identify and eliminate racial discrimination injury selection proved ineffective because such tests were "equipped to root out only 'purposeful ' discrimination, which many trial courts probably understand to mean conscious discrimination." Id. at 48, 309 P.3d 326 (citing Batson v. Kentucky, 476 U.S. 79, 98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) ). As a result, even though it has been empirically proved that peremptory challenges are routinely exercised in a racially unequal manner, it is exceedingly rare for appellate courts to reverse convictions on that basis. Id. at 44-46, 309 P.3d 326.

¶43 To address this ongoing problem, we adopted GR 37, which goes beyond forbidding purposeful discrimination injury selection by addressing the influence of implicit racial bias. Rather than requiring a showing of purposeful discrimination, GR 37(e) provides, "If the court determines that an objective observer could view race or ethnicity as a factor in the use of [a] peremptory challenge, then the peremptory challenge shall be denied." In addition, "[f]or purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State." GR 37(f). Moreover, certain "reasons for peremptory challenges [that] have been associated with improper discrimination injury selection in Washington State" are "presumptively invalid," including "having a close relationship with people who have been stopped, arrested, or convicted of a crime." Id. at (h)(iii).

¶44 We now hold that similar standards apply when it is alleged that implicit racial bias was a factor in the jury's verdict. The ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict. If there is a prima facie showing that the answer is yes, then the court must hold an evidentiary hearing. Jackson, 75 Wash. App. at 543-44, 879 P.2d 307.

2. Before deciding whether there is a prima facie showing of racial bias, courts must conduct a thorough inquiry

¶45 Unfortunately, for the same reasons that it is difficult to identify implicit racial bias, it can also be difficult to determine when a prima facie showing of implicit racial bias has been made. We therefore caution that a careful and thorough inquiry is required.

¶46 A "prima facie showing" is defined similarly here as it is in other contexts: "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). However, unlike many other contexts, a particularly careful inquiry is necessary because implicit racial bias does not reveal itself in "racially charged remarks or race-based derision." Berhe, No. 75277-4-1, 2018 WL 704724, slip op. at 29. That would be explicit racial bias. Implicit racial bias, meanwhile, manifests in apparently race-neutral explanations for actions and decisions that were, in fact, influenced by unconscious racial bias. Saintcalle, 178 Wash.2d at 49, 309 P.3d 326.

¶47 Thus, when determining whether there has been a prima facie showing of implicit racial basis, courts cannot base their decisions on whether there are equally plausible, race-neutral explanations. There will almost always be equally plausible, race-neutral explanations because that is precisely how implicit racial bias operates.

¶48 At the prima facie stage, courts must limit themselves to determining whether the evidence, taken as true, permits an inference that an objective observer who is aware of the influence of implicit bias could view race as a factor in the jury's verdict. Where the evidence is unclear or equivocal, as it will often be in cases of alleged implicit racial bias, the court must conduct further inquiries before deciding whether a prima facie showing has been made, for example, by asking the juror making the allegations to provide more information or to clarify ambiguous statements. Any such inquiry must occur on the record and be overseen by the court rather than driven by counsel.

D. Here, the trial court failed to adequately conduct and oversee an inquiry into the allegation that racial bias was a factor in the jury's verdict

¶49 We recognize that the court and counsel in this case did not have the benefit of the above guidelines when Berhe moved for a new trial. Nevertheless, applying the procedures and standards set forth above, we must hold that the trial court abused its discretion by failing to exercise sufficient oversight and by failing to conduct a sufficient inquiry before determining that Berhe had not made a prima facie showing that racial bias influenced the jury's verdict. We therefore vacate the trial court's order denying Berhe's motion for a new trial and remand for further proceedings consistent with this opinion.

¶50 As noted in the factual summary above, it is not clear from the record when the trial court or the State became aware that juror 6 alleged that racial bias was a factor in the verdict. However, the most reasonable inference is that neither the court nor the State knew of these allegations until Berhe filed his motion for a new trial on March 28, 2016. For instance, on March 10, 2016, the court noted that the defense's generic allegations of "juror misconduct and prosecutorial misconduct" were "basically all we know." VRP (Mar. 10, 2016) at 3. In addition, the other jurors' declarations denying that race played a role in their deliberations were all dated April 3 or April 4, 2016. It is thus reasonable to infer that the prosecutors learned of juror 6's allegations and formulated their questions only after receiving Berhe's motion for a new trial.

¶51 This process should not have been allowed to occur. Defense counsel should have notified the court and the State that juror 6 was alleging racial bias as soon as they discovered sufficient facts to support the allegation so that the court could take control of the inquiry. Once the court became aware of juror 6's allegations, counsel should have been instructed to have no further communications with any of the jurors regarding alleged racial bias unless it was on the record and overseen by the court. Without such oversight, the prosecutors in this case were able to formulate and pose two questions-(1) "Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?" and (2) "Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias during deliberations?" This created a natural tendency to craft written submissions in a way that best supports counsel's argument and impedes the fact-finding process, an example of the requisite importance for verbal testimony on the record overseen by the court.

¶52 In addition, the trial court did not conduct an adequate inquiry before deciding that Berhe had not made a prima facie showing requiring an evidentiary hearing. We do not reach the issue of whether a prima facie showing is made in this case, as that determination must be made by the trial court in the first instance in accordance with the standards described above. However, we do hold that the evidence in the record is at least sufficient to require further inquiry.

¶53 Juror 6's declaration includes allegations that go beyond her "subjective feeling." CP at 406. She declared that even though four members of the jury were initially not inclined to convict, juror 6, the only African-American, was "personally ridiculed in a way the other dissenting jurors were not." Id. at 475. She provided specific examples of such ridicule, including having her ideas "mocked as 'stupid' and 'illogical,' " and being accused of making "a comment on police misconduct towards African-Americans" by asking a rhetorical question. Id. at 475-76. Implicit racial bias is not the only plausible explanation for this differential treatment, but it could be a permissible inference.

¶54 This inference is strengthened by certain statements in the other jurors' declarations, such as juror 11's appreciation of juror 6's "insights" about "hip-hop culture." Id. at 326. Juror 13's statement that juror 6 was accused of being "bias[ed] based on her history with the law" also raises concerns. Id. at 325. Just as it is "presumptively invalid" for an attorney to exercise a peremptory challenge against a potential juror for "having a close relationship with people who have been stopped, arrested, or convicted of a crime," jurors accusing each other of bias based on such a relationship may indicate the influence of implicit racial bias. GR 37(h)(iii).

¶55 We caution that these observations are not necessarily conclusive. The court on remand may determine that more information is needed before it can decide whether a prima facie showing is made here. For instance, to provide points of comparison, the court may wish to ask juror 6 how the other dissenting jurors were treated and how long they held out before voting to convict. The court may also wish to seek clarification of juror 6's allegation that "I was repeatedly accused of being 'partial' because I was the only African-American juror on the panel in a trial with an African-American defendant." CP at 475. This allegation is ambiguous, as it may be based solely on juror 6's subjective impression or it may be based on specific statements by other jurors indicating explicit racial bias.

¶56 We therefore remand this case to the trial court for further proceedings. On remand, the court must conduct a thorough inquiry to determine whether there is a prima facie showing that an objective observer who is aware of the influence of implicit racial bias could view race as a factor in the verdict. If the court needs more information or clarification before it can make that determination, it should conduct further inquiry on the record before deciding. Any such inquiry must be overseen by the court rather than driven by counsel.

¶57 We recognize that significant time has passed, which may make it difficult to conduct further inquiries or to hold an evidentiary hearing if needed. We leave it to the court's discretion on remand to address such difficulties if they arise. However, the court is not permitted to deny Berhe's motion for a new trial without an evidentiary hearing based solely on the evidence already in the record.

CONCLUSION

¶58 An allegation that explicit or implicit racial bias was a factor in a jury's verdict raises unique concerns that courts must address in order to safeguard the right to a fair trial by an impartial jury. Allegations of implicit racial bias raise further challenges beyond those presented by allegations of explicit racial bias. Therefore, when it is alleged that racial bias was a factor in the verdict, the trial court must oversee and conduct a thorough investigation that is tailored to the specific allegations presented before deciding whether to hold an evidentiary hearing and before ruling on a defendant's motion for a new trial.

¶59 We hold that the trial court in this case abused its discretion by failing to exercise adequate oversight over the investigations into juror 6's allegations of racial bias and by failing to conduct a sufficient inquiry before denying Berhe's motion for a new trial without an evidentiary hearing. We therefore vacate the trial court's order denying Berhe's motion for a new trial and remand for further proceedings.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Gordon McCloud, J.

GORDON McCLOUD, J. (concurring)

¶60 I agree with the decision of the court. As that decision clearly states, the courts cannot permit racial bias to infect jury deliberations, so the no-impeachment rule must yield to allegations that such bias factored into the verdict. Majority at 1178-80. And as that decision also states, Washington courts have been leaders in recognizing this and in developing procedures to address such allegations. Id. at 1178, 1179-80. Further, I agree with the court's ruling that those procedures must ensure that counsel's questions to jurors should not "taint the jurors and impede the fact-finding process." Id. at 1180. Finally, I agree that the court must therefore supervise juror questioning, at the appropriate time, to bar such taint from occurring.

¶61 I write separately only to underscore the importance that the court places on proper investigation of these issues. Defense counsel have a duty to investigate such issues in appropriate cases. Id. at 1180 n.2. The Rules of Professional Conduct (RPCs) generally permit this. Id. at 1176 n.1. Our criminal and civil rules both require that such investigation occur before the allegation of racial bias is raised in a motion for a new trial. Id. (noting that rules permit such motions to be based on juror affidavits). Counsel's investigation need not end until they have sufficient, admissible evidence-like the affidavits listed in the rules-to make an informed decision about whether a credible motion for an evidentiary hearing and motion for new trial should be filed. See generally CR 11(a)(1) (counsel's signature on a pleading or motion constitutes a certificate that "it is well grounded in fact," a decision to be made "after an inquiry reasonable under the circumstances").

¶62 I read the decision of the court to permit just such reasonable investigation. I therefore join it in full.

      We have not been asked to review the propriety of this admonishment. However, we do note that in accordance with RPC 3.5(c) and comment 3, a lawyer may communicate with a juror after being discharged in most circumstances. See also CrR 7.5(a)(2) (motion for a new trial may be based on "[m]isconduct of the ... jury," and "[w]hen the motion is made based on matters outside the record, the facts shall be shown by affidavit"); CR 59(a)(2) ("misconduct may be proved by the affidavits of one or more of the jurors").

      It is not our intent to interfere with defense counsel's obligation to thoroughly investigate an irregularity injury deliberations, or to interfere with counsel's duty of confidentiality under RPC 1.6. Rather, our primary goal is to protect the integrity of such investigations and to preserve as much as possible any evidence of racial bias.

      That investigation must, of course, comply with the RPCs.


author: /s/ Fairhurst, C.J.

text:
    STATE of Washington, Respondent, v. Daniel Herbert DUNBAR, Petitioner.
    No. 96801-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, May 8, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered this matter at its April 30, 2019, Motion Calendar and entered an order continuing this matter to the June 6, 2019, En Banc Conference. After further consideration of this matter, the Department unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J.

CHIEF JUSTICE