phillips, alex appellate brief

8/4/2019 Phillips, Alex Appellate Brief

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No. 40368-II

COURT OF APPEALS

DIVISION II

OF THE STATE OF WASHINGTON

_______________________________

State of Washington, Respondent,

v.

Derrick Lang Hayden, Appellant.

________________________________

BRIEF OF APPELLANT

________________________________

TABLE OF CONTENTS

Appellant Trial Brief 1 Alex Phillips



A. Assignments of Error

No. 1

……………………………………………………………………………………………………

…………………………………...5

No. 2

……………………………………………………………………………………………………

…………………………………...5

No. 3

……………………………………………………………………………………………………

…………………………………...5

No. 4

……………………………………………………………………………………………………

…………………………………...5

No. 5

……………………………………………………………………………………………………

…………………………………...5

No. 6

……………………………………………………………………………………………………

…………………………………...5

No. 7

……………………………………………………………………………………………………

…………………………………...5




No. 8

……………………………………………………………………………………………………

…………………………………...6

No. 9

……………………………………………………………………………………………………

…………………………………...6

No.

10…………………………………………………………………………………………………

…………………………..………...6

Issues Pertaining to Assignments of Error

No. 1

……………………………………………………………………………………………………

…………………………………...6

No. 2

……………………………………………………………………………………………………

…………………………………...6

No. 3

……………………………………………………………………………………………………

…………………………………...7

B. Statement of the Case

……………………………………………………………………………………………………

……..7

C. Summary of




Argument………………………………………………………………………………………

…………………..8

D. Argument

I. I. In two separate instances, during the examination of a witness and during

closing arguments, the prosecutor inflamed the passions of the jury

and created reversible error by improperly commenting upon

impermissible evidence. The court subsequently refused a mistrial,

denying the defendant his constitutional right to due process and a

fair

trial………………………………………………………………………………………

…..……………………………..8

II. The trial court created reversible error by admitting prima facie

propensity evidence without properly balancing its probative nature

against its prejudicial effect, and failing to properly instruct the jury to

limit the uses of evidence regarding these improper

admissions………………………………………………………………………………

……………………………………11

A. The State did not meet its burden of showing that the

uncharged evidence has a purpose other than to show the

character of Mr. Hayden to be that of an identity

thief………………………………………………………………………………

………………..….11




B. The uncharged evidence is not a part of the story of the

crime, and is not so connected in time and place to the charged

crimes as to be inseparable from the charged

evidence…………………………………………………………………………

…………..………12

C. The unfair prejudice towards Mr. Hayden that will be created

by admitting the uncharged evidence outweighs the probative

value of the evidence, favoring

exclusion…………………………………………………………………………

……………………………..…14

D. The court should exclude the uncharged evidence because it

will mislead the jury, waste the courts’ time, and allow Mr.

Hayden to be convicted for the improper reason of having

possessed the uncharged items……………………………..15

III. The trial court created reversible error as the cumulative error

created by the prosecutorial misconduct and the admittance of

uncharged evidence refused the defendant a fair

trial………………………………………………………………………………………

…………….18

E.

Conclusion………………………………………………………………………………………

……………………………………19




TABLE OF AUTHORITIES

A. Table of Cases

Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d

705………………………………….………10

State v. Alexander 64 Wn. App. 147, 822 P.2d 1250 (1992)

………………………….………………..9, 10, 18

State v. Barragan, 102 Wn. App. 754, 9 P. 3d 942 (2002)

……………………………………..…………………14

State v. Bennett, 36 Wn. App. 176, 180, 672 P.2d 772 (1983)

………………………………………………….12

State v. Brown, 132 Wn.2d 529, 940 P. 2d 546 (1997)

……………………………………………………………..12

State v. Coe, 101 Wn.2d 772,779, 684 p.2d 668 (1984)

……………………………………………………………18

State v. Dinges, 48 Wn.2d 152, 292 P.2d 361 (1956)

……………………………………………………………..…12

State v. Emmanuel, 42 Wn.2d 1, 13, 253 (1953)

………………………………………………………………………11

State v. French, 101 Wn. App. 380, 4 P.3d 857 (2000)

…………………………………………………………..…10

State v. Goebel, 36 Wn.2d 367, 218 P.2d 300 (1950)

……………………………………………………….…15, 16

State v. Grisby , 97 Wn.2d 493,499, 647 P.2d 6 (1982)


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……………………………………………………………….9

State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995)

…………………………………………………………12

State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995)

…………………………………………………….…16

State v. Luvene, 127 Wn.2d 690, 903 P.2d 960 (1995)

……………………………………………………………….9

State v. Perkins, 97 Wn. App. 453, 983 P.2d 1177 (1999)

…………………………………………………………9

State v. Saltarelli, 98 Wn.2d 358, 361, 655 P.2d 697 (1982)

………………………………………………..….16

State v. Tharpe, 96 Wn.2d 591, 637 P.2d 961 (1981)

………………………………………………………….13, 17

State v. Trickler , 106 Wn. App. 727, 25 P. 3d 445 (2001)

…………………………………………………….13-15

State v. Van Auken, 77 Wn.2d 136, 460 P.2d 277 (1969)………………..

………………………………………….9

State v. Wilson, 71 Wn. App. 880, 863 P.2d 116 (1993)

……………………………………………………………..9

United States v. Necoechea, 986 F.2d 1273 (9th Cir.1993)

………………………………………….……………18

II. Table of Statutes

Evidence rules 401, 402, 403, and 404




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III. Other Sources

Affidavit of Keith Berge

Amended Information

Declaration of Determination of Probable Cause

List of Exhibits

Verbatim Report of Proceedings Vol I &II

A. ASSIGNMENTS OF ERROR

1. Trial court erred by not granting the motion for mistrial during re-

direct of Keith Berge.

2. Trial court erred in granting states motion to admit evidence without

carefully balancing the 404b issues on the record.

3. Trial court erred when it determined that a limiting instruction was not

necessary on admitted evidence.

4. Trial court erred by overruling defense relevance objection to

improper questioning of Berge.

5. Prosecutorial misconduct was committed when the prosecutor

solicited improper answers from Berge, especially in light of a warning

from the judge to be careful where the prosecutor led the witness.

6. Trial court erred by overruling objection to prosecutorial misconduct in

closing argument.

7. Prosecutorial misconduct was committed when the prosecutor said

improper comments during closing argument.




8. Trial court committed cumulative error by allowing the same sort of

mistake to be made in regards to the child porn commentary twice

without declaring mistrial.

9. Trial court erred by entering a judgment of guilty against the

defendant.

10. Trial court erred by sentencing the defendant based upon a

guilty verdict.

ISSUES PERTAINING TO ASSIGNMENTS OF ERROR

1. Did the trial court create reversible error by entering a judgment of

guilt against Mr. Hayden and concluding he received a fair trial when

inadmissible statements made by and elicited by the prosecutor were

heard by the jury and a mistrial was denied? (AE 1, 4-10)



the court admitted uncharged evidence and evidence of other crimes,

wrongs, or acts without properly balancing the probative nature

versus the prejudicial effect it may have on the jury on the record? (AE

2, 3, 9, 10)



the cumulative nature of admitting uncharged evidence along with




prosecutorial misconduct bringing evidence of other crimes effectively

put the defendant on trial for many uncharged acts? (AE 1-10)

B. STATEMENT OF THE CASE

Derrick Lang Hayden, the defendant, a retired art teacher and

professional photographer, had lived in a home on 1st St. S.W. in Lakewood,

Washington for about two years in early March, 2007. Berge Aff. 1:18 A fire

at his previous residence had destroyed all of his belongings, and after

running out of time staying with a cousin he subleased a room from the

Fallon’s in Lakewood. Berge Aff. 1:15-22 On March 7th, while serving a

search warrant unrelated to this case, officers of the state seized and

catalogued a substantial amount of documents that were located inside

cases or a backpack either in the defendant’s room or automobile. Decl.

Det. P.C. 1 Officers investigated these documents, which contained various

forms and cards containing a variety of names and addresses, and came to

find information which they believe to constitute thirteen counts of identity

theft and a single count of theft in the second degree. Am. Inf. 1-6 Besides

the pieces of information found in the search tied to these fourteen counts,

there is also a substantial amount of evidence that was seized in the search

of the Defendant’s home and Car and is not tied to the charged crimes. Ex.

1, 19, 20, 21, 22, 23, 24, 27, 29, 35, 49, 54, 58, 66, 69, 72, 76, 82, 83, and

84 The case was tried in the Superior Court of Washington for King County,

where a jury found the defendant to be guilty of six counts of identity theft




in the second degree. VRP II 147-148 All of the evidence, whether charged

or uncharged, was found to be admissible by the court under 404(b). VRP I

3-4

C. SUMMARY OF ARGUMENT

I. In two separate instances, during the examination of a witness and

during closing arguments, the prosecutor inflamed the passions of

the jury and created reversible error by improperly commenting upon

evidence that the judge specifically asked the prosecutor to avoid

commenting upon. The court subsequently refused a mistrial,

denying the defendant his constitutional right to due process and a

fair trial.

II. The trial court created reversible error by admitting prima facie

propensity evidence without properly balancing its probative nature

against its prejudicial effect, and failing to properly instruct the jury to

limit the uses of evidence regarding these improper admissions.

III. The trial court created reversible error because the cumulative

error created by the prosecutorial misconduct and the admittance of

uncharged evidence refused the defendant a fair trial.

D. ARGUMENT




I. Prosecutorial misconduct

During the trial, there were two separate instances of prosecutorial

misconduct so malicious as to sway the minds of the jurors. First, After

being warned by the court to be careful where she goes with this, and

knowing full well how the witness would answer, the Prosecutor solicited

unfounded accusations that the defendant was a child pornographer. VRP II

114:18-25 Second, during her closing argument the Prosecutor stated

directly that “It seems Mr. Hayden has a penchant for taking advantage of

relationships, and more specifically taking advantage of children.” VRP

126:10-12 In both of these instances a mistrial was asked for by the

defendant and denied by the court, in error.

The trial court ruling on prosecutorial misconduct will be given

deference on appeal; the trial court is in best position to most effectively

determine if prosecutorial misconduct prejudiced defendant's right to fair

trial. State v. Luvene, 127 Wn.2d 690, 903 P.2d 960 (1995) However, an

appeals court may determine that prosecutorial misconduct occurred, if the

issue was raised at trial and ruled on by the trial court, and that ruling was

in error. State v. Van Auken, 77 Wn.2d 136, 460 P.2d 277 (1969) The ruling

in this case, to not declare a mistrial when asked for both during the Berge

testimony and during the Prosecution’s closing argument, was in error as

the testimony elicited and commented upon by the prosecutor was highly

inflammatory, connected, and irrevocable.

The court of Appeals must reverse for prosecutorial misconduct when




there is substantial likelihood that the improper statement affected the jury

verdict, but the defense has the burden of proving that prejudice. State v.

Wilson, 71 Wn. App. 880, 863 P.2d 116 (1993); see also State v. Perkins, 97

Wn. App. 453, 983 P.2d 1177 (1999). The prejudice created here is

insurmountable, as child pornography is a far greater crime than identity

theft, and thus the likelihood of this sort of evidence damning the defendant

is great.

Although juries are presumed to follow the instructions of the court

(State v. Grisby , 97 Wn.2d 493,499, 647 P.2d 6 (1982)), the jury surely could

not just disregard the statements about the defendant being a child

pornographer. This becomes misconduct when the statement is

purposefully restated and/or asserted again, as was the case in State v.

Alexander where a prosecutor repeatedly asked questions where the

witness was instructed not to answer, and the court on appeal reasoned that

“The pattern of repeatedly asking the same question has the effect of telling

the jury the answer to it even when all of defense counsel's objections are

sustained.” State v. Alexander 64 Wn. App. 147, 822 P.2d 1250 (1992). The

Prosecutor here is trying to do the exact same thing, allowing the judge to

tell the jury to disregard and the prosecutor to continue to make similar

remarks in such a way that the jury cannot help but wonder if the

statements against the defendant, although not allowed, are true due to

repetition and variety of supporting yet inadmissible evidence.

Generally, an improper prosecution argument, even when indirectly




II. Improper Admission of Uncharged Evidence

During trial, the court admitted all evidence which was sought to be

admitted by the state, both charged and uncharged. VRP 4 The court

committed reversible error when it failed to exclude the uncharged

evidence, Ex. 1, 19, 20, 21, 22, 23, 24, 27, 29, 35, 49, 54, 58, 66, 69, 72, 76,

82, 83, and 84, as evidence of other crimes, wrongs or acts is inadmissible

to prove the

character of a person or to show that a person acted in conformity with that

character, and the uncharged evidence was being used for this improper

propensity purpose.

A. The State did not meet its burden of showing that the uncharged

evidence has a purpose other than to show the character of Mr. Hayden

to be that of an identity thief.

Exclusion of character evidence is grounded on the principle that the

accused must be tried for the crimes charged, not for uncharged crimes.

State v. Emmanuel, 42 Wn.2d 1, 13, 253 (1953) Evidence of other crimes,

wrongs, and acts establishing a defendants character in conformity with

charged crimes is generally inadmissible. ER404(b) The uncharged pieces

of evidence outlined in the exhibit record was not be used to prove any of

the charged counts, and instead was used to show that the defendant has

the character of an identity thief.




Evidence of other crimes, wrongs, or acts… may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. ER 404(b) None of

these purposes avail themselves in this case. Absence of mistake, motive,

opportunity, intent, and identity are all clearly established by the breadth of

charges and relevant evidence that is tied to a charged count. While some

of these pieces of evidence do show planning and preparation of identity

theft generally, they do not show planning or preparation of any of the

charged counts, and thus are prima facie character evidence. “[i]n doubtful

cases the scale should be tipped in favor of the defendant and exclusion of

the evidence.” State v. Bennett, 36 Wn. App. 176, 180, 672 P.2d 772 (1983)

In this case the court reasoned that the evidence would be “extremely

probative” to go to whether the defendant would obtain goods and such.

VRP 3 This is clearly not the case, however, as this is not an element of the

crimes charged, nor does it seem to have any connection whatsoever.

In State v. Dinges, 48 Wn.2d 152, 292 P.2d 361 (1956) the court held that

the true test of admissibility of unrelated crimes is not only whether they fall

into any specific exception, but whether the evidence is relevant and

necessary to prove an essential ingredient of the crime charged. The

elements of possession, intent, maximum theft, and locality can all be

proven in each of the counts based upon other charged evidence, and thus

the evidence is unnecessary. It is the burden of the State to provide in the

record a reason why the evidence is necessary (see State v. Brown, 132







Wn.2d 529, 940 P. 2d 546 (1997)) and this burden was never met.

B. The uncharged evidence is not a part of the story of the crime, and is not

so connected in time and place to the charged crimes as to be

inseparable from the charged evidence.

In addition to the standard exceptions to 404(b), evidence may be

admitted under a res gestae theory in order “[to] complete the story of the

crime on trial by providing its immediate context and happenings near in

time and place.” State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).

The uncharged evidence in this case does not provide any probative context

or explanation of the crimes or charged evidence. The State is unsure of

where each of the pieces of uncharged evidence came from or where they

were located when seized, and thus cannot provide a coherent story of how

the uncharged evidence fits into the story of the crimes with the charged

evidence. Yet it was let in by the court, which reasoned that “to give a

complete picture of what the criminal enterprise was” the evidence must be

let in. VRP 4 However this is doing exactly what the rules were meant to

prohibit: Res Gestae is meant to give a complete picture of the crime

charged, not to allow a jury to guess as to the complexity of the criminal

enterprise which the defendant was caught up in.

The evidence will only be allowed in under such a theory if it is necessary

to complete a description of the charge of the crime. State v. Tharpe, 96

Wn.2d 591, 637 P.2d 961 (1981) No such purpose can be claimed here, in

Mr. Hayden’s case excluding the evidence may be the only way to get the




jury to understand a complete description of the crime being charged. The

evidence will not help to tell the story of the crimes being charged but will

instead muddy the waters of the crimes being charged while painting a

picture of Mr. Hayden as an identity thief, the improper purpose that ER 403

& 404 were created to stop.

The test commonly used in Washington State is whether the uncharged

evidence is an inseparable part of the possession of the charged evidence.

See State v. Trickler , 106 Wn.App. 727 In Mr. Hayden’s case it is not. The

State does not know where the charged and uncharged evidence were

located when confiscated during the search of Mr. Hayden’s home and car.

It is reasonable that all of the uncharged evidence could have been found in

a separate case or bag from the charged evidence, or that the evidence was

kept in file folders or in some sort of an order, however officers of the State

failed to account for their location altogether. Because of the dearth of

information regarding the evidence, it is easily separated from the story of

the crime, and thus is not essential to the story of the crime in any of the

charged counts. The State’s motion to admit the evidence should be denied

because the evidence is improper and muddles the story of the charged

crimes with a story that shows Mr. Hayden to be an identity thief without

better explaining how the charged evidence is tied to the crimes.

C. The unfair prejudice towards Mr. Hayden that will be created by

admitting the uncharged evidence outweighs the probative value of the

evidence, favoring exclusion.




Before a trial court may admit evidence of other crimes or misconduct it

must balance the danger of unfair prejudice against the probative value of

the evidence, even if the court has found a proper purpose for the evidence.

State v. Trickler , 106 Wn.App. 727 Every single piece of evidence seeking to

be admitted by the State goes towards showing that Mr. Hayden has a

character in conformity with that of an identity thief, and is thus wantonly

prejudicial, as identity theft is the charge being sought in each of the

counts.

The trial court’s decision to admit evidence of a defendant’s prior acts is

reviewed for abuse of discretion. State v. Barragan, 102 Wn.App. 754, 9 P.

3d 942 Failure to balance the probative value of the uncharged evidence

against its prejudicial effect on the jury while admitting evidence under 404

(b) is reversible error, and doubtful cases should be resolved in favor of the

defendant. State v. Trickler , 106 Wn.App. 727, 25 P. 3d 445 That is the

case here. We are unsure of the connection between the evidence and the

record, and it would serve the purposes of the court to keep out the

uncharged evidence, as it may substantially prejudice the defendant if used

improperly. In State v. Trickler , supra, the defendant kept out similar

evidence of stolen items that were found near charged evidence, and the

jury convicted based upon this evidence, which the reviewing court deemed

an abuse of discretion and remanded for a new trial. Evidence of

substantially similar crimes to the ones charged that have no tie to the

charges is the most prejudicial sort of evidence that can seek to be




admitted, as it is prima facie character evidence. If the evidence is not

excluded it will lead the jury to convict based upon prejudice against the

defendant as a thief generally and not based upon the facts of the charged

counts. Because all of the uncharged evidence seeking to be admitted goes

towards showing that Mr. Hayden is an identity thief it is highly prejudicial,

especially since the charged crimes go to the same character as the

uncharged evidence.

The uncharged evidence is also of minimal probative value. It does

not go to a proper purpose, and is not relevant except to establish that Mr.

Hayden is an identity thief, the establishment of which will guarantee abuse

of discretion under Trickler (see State v. Trickler , supra). The State must

show that the probative value of the uncharged evidence seeking to be

admitted outweighs the prejudicial effect of that evidence on the jury’s

ability to fairly establish guilt by proving the elements of the crime of

identity theft in the second degree through the use of connected, relevant

evidence.

D. The court should exclude the uncharged evidence because it will mislead

the jury, waste the courts’ time, and allow Mr. Hayden to be convicted for

the improper reason of having possessed the uncharged items.

“(T)his class of evidence, where not essential to the establishment of the

state's case, should not be admitted, even though falling within the

generally recognized exceptions to the rule of exclusion, when the trial court

is convinced that its effect would be to generate heat instead of diffusing




light… This is a situation where the policy of protecting a defendant from

undue prejudice conflicts with the rule of logical relevance, and a proper

determination as to which should prevail rests in the sound discretion of the

trial court, and not merely on whether the evidence comes within certain

categories which constitute exceptions to the rule of exclusion.” State v.

Goebel, 36 Wn.2d 367, 218 P.2d 300 (1950) Any piece of evidence in this

case which is let into evidence yet not tied to a charged count will kindle the

thought of Mr. Hayden as an identity thief and blur the facts about the

crimes charged by piling on character evidence instead of evidence

establishing the elements of the crime.

ER 403 requires exclusion of evidence, even if relevant, if its probative

value is substantially outweighed by the danger of unfair prejudice. State v.

Goebel, supra (My emphasis) And this court, following the Washington

Supreme Court, looks at ER 401, 402,403, and 404 as a whole. State v.

Saltarelli, 98 Wn.2d 358, 361, 655 P.2d 697 (1982). To admit evidence, the

trial court must (1) identify the purpose for which the evidence is sought to

be introduced, (2) determine whether the evidence is relevant to prove the

element of the crime charged, (3) weigh probative value against the

prejudicial effect, and (4) find that the conduct actually occurred. State v.

Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) Evidence may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of





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cumulative evidence. ER 403

To let in even a single piece of the uncharged evidence would be to

unfairly prejudice the jury, as the evidence is extremely prejudicial.

Although the uncharged evidence may be slightly probative, it does not

establish any facts not already in the record that will go towards the

elements of the charged crimes. The evidence seeking to be admitted by

the State is the embodiment of almost every single one of the concerns of

ER 403. It is needlessly cumulative, as all of the charged crimes have

sufficient evidence to support the charge filed without any of the evidence

seeking to be admitted. Admitting the evidence is a waste of time as it does

not provide for or lead to any new facts which will help in the prosecution of

Mr. Hayden. It is misleading because the jury may think that there is a link

between the evidence and the charged crimes where there is not.

Admission would confuse the charges between each of the defendants, and

will catalyze delay by lengthening the jury process, the exhibition of

evidence, the questioning of witnesses on the evidence, and the cataloging

of evidence.

Over all of this, however, the evidence seeking to be admitted is

blatantly prejudicial. Embedding itself into both the ER 403 and 404 rules,

the balancing of the probative nature of the evidence against the prejudicial

effect the evidence may have on the jury is essential to the admission of the

evidence, and failure to properly balance is reversible error. State v.

Tharpe, 96 Wn.2d 591, 637 P. 2d 961 In this case the evidence is wildly




prejudicial. Shown to the jury in the context of a trial for counts of identity

theft, it can only be seen by the jury as additional evidence to Mr. Hayden’s

guilt. There is no common plan or scheme amongst the counts of identity

theft that are somehow tied together by the additional evidence, yet the

jury may very well think that the evidence does just this.

Exclusion of the additional evidence will not hurt the ability of the

State to prove conclusively the elements of each of the charged counts, and

thus the evidence is not sufficiently probative. The uncharged evidence

should be excluded because the highly prejudicial nature of the evidence

substantially outweighs its probative potential, which is slight. Mr. Hayden’s

trial will be confused, elongated, and wrongly decided if the jury is allowed

to determine his guilt for the charged counts of identity theft based upon

piles of identity theft related evidenced seized from the defendant yet

unrelated to the charges at issue. Excluding all evidence not tied to a

charged count in this case will serve the purposes of the rules of evidence

by ensuring Mr. Hayden is tried for the crimes charged and will not instead

be found guilty based on other incriminating evidence in his possession.

Because this evidence was allowed in, the defendant was convicted in light

of it, in error.

III. CUMULATIVE ERROR

When the errors of the trial court are many, and the effect of these

errors is substantial, even though each error may be “harmless,” altogether




they violate a defendants due process rights. State v. Coe, 101 Wn.2d

772,779, 684 p.2d 668 (1984) (numerous errors, harmless standing alone,

can deprive a defendant of a fair trial); see generally United States v.

Necoechea, 986 F.2d 1273 (9th Cir.1993). The case for cumulative error

becomes much stronger when the errors build upon one another. When the

prosecutor is twice warned by the court during examination of a witness to

avoid a topic (VRP II 114), it is surely more harmful of an error when it is

again brought up in closing (VRP II 126). The defendant in this case could

not have possibly received a fair trial when he was clearly being charged for

child molestation and/or child pornography, and not identity theft alone.

Add the willingness of the court to let in extraneous evidence, hoping

that it may show a grander criminal scheme, and the error is magnified. If

the court was looking to expand the realm of criminal charges surrounding a

specific defendant’s case, and the prosecutor was giving the jury options as

to additional charges the defendant may be guilty of, it is unconscionable to

uphold a conviction as fair and a sentence as just, and this court should

overturn the defendant’s conviction. Here we have just that case, where

the court in effect guaranteed the defendant’s conviction.

Such was the case in State v. Alexander, where the defendant was

repeatedly maligned via prosecutorial inferences, and the Appellate court

rightly overturned his conviction. 64 Wn. App. 147, 822 P.2d 1250 (1992)

Like in Alexander, each individual error in this case was not harmful enough

to have affected the jury verdict, however the cumulative effect of these









errors was, as the cumulative effect was to find the defendant who was not

guilty of the crimes charged guilty of some of the charged crimes due to the

chance that he was involved in something much worse.

E. CONCLUSION

Because the trial court erred in failing to declare a mistrial due to

prosecutorial misconduct and allowed impermissible evidence into the trial,

denying the defendant a fair trial, the defense asks the court to overturn the

trial court’s verdict and sentence.

April 11th, 2011

Respectfully submitted,

_____________________________________

Alex Phillips

Attorney for Appellant

W SB#XXXXXX

phillips, alex appellate brief

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