State Of Washington v. Tomas Mussie Berhe

FILED
COURT OF APPEALS DIV I
- STATE OF WASHINGTON'

2018 FEB -5 1111 9:02

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) No. 75277-4-1
v. )
) UNPUBLISHED OPINION
TOMAS MUSSIE BERNE, )
)
Appellant. ) FILED: February 5, 2018
)

DWYER, J. — Tomas Berhe was charged and convicted of murder in the

first degree and assault in the first degree, each with a firearm enhancement. On

appeal, Berhe contends that he was deprived of a fair trial based on racial

animus among the jurors and flagrant prosecutorial misconduct. Berhe also

contends that the trial court erred by permitting the State to admit evidence of

statements that he made after invoking his right to remain silent, admitting

ballistic evidence, and refusing to impose a sentence below the standard range.

Finding no error warranting reversal, we affirm.

Shortly after midnight on July 22, 2013, Everett Williams was shot four

times and killed while sitting in the front passenger seat of a parked vehicle. One

bullet passed through Williams and struck the arm of Michael Stukenberg, who

was sitting in the driver's seat of the vehicle. Several people in the surrounding

area saw an individual flee the scene of the shooting in an automobile.
No. 75277-4-1/2

Police quickly matched the witnesses' description of the suspect vehicle

with a vehicle driving erratically on the freeway, roughly 1.5 miles from the scene

of the shooting. The individual sitting in the front passenger seat fit the

witnesses' description of the shooter. Police pulled the vehicle over and detained

the driver, Elijah Washington, and the passenger, Tomas Berhe. Police

recovered a handgun from underneath the driver's seat.

Berhe was charged and convicted of murder in the first degree with a

firearm enhancement and assault in the first degree with a firearm enhancement.

The trial court polled the jury and each juror confirmed that the verdicts returned

were the verdicts of the jury as a whole and the verdicts of that juror individually.

The sentencing court imposed concurrent sentences of 300 months of

confinement for the murder conviction and 113 months of confinement for the

assault conviction. The sentencing court further imposed 60 months of

confinement for each firearm enhancement, to be served consecutively. Berhe

now appeals.

II

Berhe first contends that the trial court erred by permitting the State's

ballistic examiner to offer opinion testimony during trial. Berhe asserts that

ballistic testing is unreliable and scientifically dubious and that the expert's

opinion was misleading and contrary to the underlying science.

In determining the admissibility of evidence based on novel scientific

theories or methods, Washington courts employ the "general acceptance"

standard set forth in Frye v. United States, 293 F. 1013(D.C. Cir. 1923). "The

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No. 75277-4-1/3

Frye standard requires a trial court to determine whether a scientific theory or

principle 'has achieved general acceptance in the relevant scientific community'

before admitting it into evidence." In re Det. of Thorell, 149 Wn.2d 724, 754, 72

P.3d 708(2003)(internal quotation marks omitted)(quoting In re Pers. Restraint

of Young, 122 Wn.2d 1, 56, 857 P.2d 989(1993)). "When a party fails to raise a

Frye argument below, a reviewing court need not consider it on appeal." In re

Det. of Taylor, 132 Wn. App. 827, 836, 134 P.3d 254 (2006). Moreover,

particularly where evidence is based on a routinely used and "familiar forensic

technique," an objection to that evidence must be sufficiently specific to inform

the trial court that a Frye challenge is intended. State v. Wilbur-Bobb, 134 Wn.

App. 627, 634, 141 P.3d 665 (2006).

"Once a methodology is accepted in the scientific community, then

application of the science to a particular case is a matter of weight and

admissibility under ER 702, which allows qualified expert witnesses to testify if

scientific, technical, or other specialized knowledge will assist the trier of fact."

State v. Gregory, 158 Wn.2d 759, 829-30, 147 P.3d 1201 (2006). "The

qualification of an expert to give opinion testimony is a matter within the sound

discretion of the trial court, and the trial court's determination will not be disturbed

unless that discretion is manifestly abused." State v. Brown, 17 Wn. App. 587,

596, 564 P.2d 342(1997).

Here, tool mark and firearms forensic scientist Kathy Geil testified on

behalf of the State. Geil testified as to the procedure that she used to test the

firearm recovered from the vehicle in which Berhe was detained. This procedure

3
No. 75277-4-1/4

involved test firing five bullets from the firearm and comparing the microscopic

markings on the fired casings and bullets with those recovered from the crime

scene. Geil testified that, after comparing the samples from her own test fired

bullets to the bullets recovered from the crime scene, "1 was able to see that they

all had the same markings... 1 was able to identify them as having come—or as

having been fired from this firearm."

During cross-examination, Berhe's counsel questioned Geil regarding the

accuracy and scientific certainty of ballistic testing. Defense counsel asked Geil

about the manufacturer of the firearm that was recovered by police. Counsel

asked Geil if she knew how many firearms were produced by that same

manufacturer. Geil did not know. Counsel then asked Geil whether it was

possible that another firearm produced by that manufacturer could have similar

microscopic irregularities as the firearm that was recovered by police. Geil stated

that she had not examined every firearm produced by that manufacturer and

therefore could not answer with certainty, but that she would assume that there

would be some randomness in each firearm. Geil testified that she made her

determinations based on her own experience.

Berhe's attorney then asked,"Mou have told us that you cannot say with

100 percent certainty that these bullets and these cartridge cases, that it—you

cannot say that it came from this particular gun to the exclusion of any other gun

in the universe; you are not able to say that?" Geil replied, "Right. With a

theoretical understanding that the worlds can collide, right. There is-

4
No. 75277-4-1/5

theoretically, I can't say to all exclusion to all other firearms, you know. We just

haven't examined them."

On appeal, Berhe contends that ballistic testing is scientifically dubious

and therefore unreliable. By so contending, Berhe "attempts to transform that

which should have been raised as an evidentiary challenge in the trial court into a

question of constitutional significance on appeal." In re Det. of Post, 145 Wn.

App. 728, 755, 187 P.3d 803(2008), aff'd, 170 Wn.2d 302, 241 P.3d 1234

(2010). But Berhe did not request a Frye_ hearing in the trial court and, thus, has

not preserved such an evidentiary challenge for review. Post, 145 Wn. App. at

755-56 (citing Taylor, 132, Wn. App. at 836).

Berhe also contends that Geil's testimony was misleading because it

presented ballistic testing as "definitive science." The nature of Berhe's

contention is unclear. Again, Berhe never requested a Frye hearing or objected

to the use of ballistic testing evidence. Neither did Berhe object to Geil's

qualifications to testify as an expert witness on this subject. Indeed, Geil

thoroughly explained the procedure behind ballistic testing and its limitations.

Geil did not, as Berhe asserts, testify that there was an "absolute and

scientifically determined match" between the firearm and the bullets recovered

from the crime scene. To the contrary, Geil made clear that her opinion was

based on her own experience and that she had not examined every firearm in

existence and, therefore, could not definitively rule out the possibility that another

firearm might be a match.

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No. 75277-4-1/6

Finally, Berhe contends that the trial court erred by denying his motion in

limine to prohibit Geil and the prosecutor from characterizing ballistic testing as

"science." Berhe raises this contention for the first time in his reply brief and has

not assigned error to a related trial court ruling. Accordingly, we decline to reach

this issue. RAP 10.3; see State v. Hudson, 124 Wn.2d 107, 120, 874 P.2d 160

(1994)(appellate courts will not consider arguments raised for the first time in a

reply brief); see also Valente v. Bailey, 74 Wn.2d 857, 858, 447 P.2d 589(1968)

(appellate courts will not consider alleged errors that are not set forth in the

"assignments of error" section of the brief).

There was no error.

III

A

Berhe next contends that the trial court erred by admitting statements that

he made to police after invoking his right to remain silent. We agree, but deem

the error harmless.

The Fifth Amendment to the United States Constitution and article 1,

section 9 of the Washington Constitution guarantee a criminal defendant the right

to be free from self-incrimination. State v. Easter, 130 Wn.2d 228, 235, 922 P.2d

1285 (1996); U.S. CONST. amend. V; WASH. CONST. art. 1, § 9. This right prevents

the State from using statements made by the defendant during a custodial

interrogation unless the defendant was informed of his or her Mirandal rights. In

re Pers. Restraint of Cross, 180 Wn.2d 664, 682, 327 P.3d 660(2014). "Any

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
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No. 75277-4-1/7

waiver of these rights by the suspect must be knowing, voluntary, and intelligent."

State v. Piatnitskv, 180 Wn.2d 407, 412, 325 P.3d 167(2014). "Even once

waived, a suspect can invoke these rights at any point during the interview and

the interrogation must cease." Piatnitskv, 180 Wn.2d at 412. "It is well

established that Miranda rights must be invoked unambiguously." Piatnitsky, 180

Wn.2d at 413 (citing Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350,

129 L. Ed. 2d 362(1994)). The inquiry is an objective one and asks whether "a

reasonable police officer in the circumstances would understand the statement to

be [an invocation of Miranda rights]." Piatnitskv, 180 Wn.2d at 413(alteration in

original)(quoting Davis, 512 U.S. at 459).

We review a trial court's erroneous admission of custodial statements for

harmless error. Cross, 180 Wn.2d at 678. Constitutional error is harmless if we

are "convinced beyond a reasonable doubt that any reasonable jury would have

reached the same result, despite the error." State v. Aumick, 126 Wn.2d 422,

430, 894 P.2d 1325 (1995).

Here, Berhe was advised of his Miranda rights at the time of his arrest.

Berhe was then transported to the homicide unit and was again read his Miranda

rights. Berhe concedes that, at that time, he waived his right to remain silent by

engaging the detectives in conversation. The entire interrogation was audio and

video recorded.

Berhe was hostile toward the detectives during the interrogation. For

example, Berhe refused to tell the detectives where he was coming from the

night that he was arrested. When asked why he would not answer, Berhe

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No. 75277-4-1/8

responded,"You guys don't understand, man. You guys do not understand this

shit. I kept trying to be, you know, cooperative and everything and try to talk to

those guys out there and they just kept treating me like shit. . . . So why the fuck

should I be treating anybody else better?" Berhe refused to answer the

detective's questions concerning who owned the vehicle that Berhe was a

passenger in when police arrested him.

BERHE: I already know both you guys' styles. I already know how
you guys do this shit. Okay. So I'm not going to play this sick
game with you guys anymore.
WEKLYCH: Who owns the car?
BERHE: It doesn't matter.
WEKLYCH: It doesn't?
BERHE: It doesn't matter. What if you own it? What the fuck.

The detectives persisted in questioning Berhe despite his uncooperative

attitude. At one point during the interrogation, Detective Russell Weklych asked

Berhe what he was doing the night that he was arrested.

BERHE: What do you mean, what 1-1 don't even want to talk to
you, dog. I don't even want to talk to you. I don't want to talk to
you or you.
WEKLYCH: Why are you so ticked off?
BERHE: Because I don't like that fucking smirk you got on your
face looking at me like that. I know you're up to some fucking
fucked-up ass games and I already have a fucking history with you.
So it doesn't matter. And I know that shit right there is recording, I
don't care.
WEKLYCH: Okay.
BERHE: I don't care. You're not telling me what the fuck I'm here
for. Those officers didn't tell me what the fuck I'm here for. But
you're just going to come in here and question me and try to role
play me along.
WEKLYCH: What would you like me to do?
BERHE: I would like you not to talk to me about shit and tell me
what the fuck I'm here for. All you telling me is, oh, I'm
investigating an incident. What incident?

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No. 75277-4-1/9

The trial court held a CrR 3.5 hearing to determine if and when Berhe

invoked his right to remain silent. The trial court concluded that Berhe had

unequivocally invoked his right to remain silent when Berhe told the detectives, "I

would like you not to talk to me about shit and tell me what the fuck I'm here for."

Accordingly, the trial court concluded that all of Berhe's statements prior to that

statement were admissible.

Berhe contends that he unequivocally invoked his right to remain silent

earlier in the interrogation. Specifically, Berhe asserts that he invoked that right

when he stated, "What do you mean, what 1-1 don't even want to talk to you,

dog. I don't even want to talk to you. I don't want to talk to you or you."

Berhe is correct. Viewing Berhe's statements objectively, a reasonable

police officer in the circumstances would understand that Berhe was invoking his

right to remain silent by repeatedly stating, "I don't even want to talk to you." By

ruling otherwise, the trial court erred.

Nevertheless, the trial court's error was harmless. The two erroneously

admitted utterances were irrelevant to the crime and did not reveal any new

information to the jury. Contrary to Berhe's assertions, the erroneously admitted

statements did not introduce the jury to Berhe's character and temperament.

Berhe was hostile, combative, and uncooperative throughout the duration of the

interrogation. The admission of a few extra lines of similar dialogue did nothing

to change that. The error was harmless.

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No. 75277-4-1/10

Berhe also contends that the trial court erred by admitting the videotape

recording of his interrogation. Berhe asserts that the video recording was not

relevant, that its probative value was outweighed by the danger of unfair

prejudice, and that the trial court should have so ruled. We disagree.

We review a trial court's decision to admit evidence for an abuse of

discretion. In re Det. of Twining, 77 Wn. App. 882, 891, 894 P.2d 1331 (1995).

A trial court abuses its discretion when its ruling is manifestly unreasonable or

based on untenable grounds or reasons. State v. Rodriguez, 187 Wn. App. 922,

939, 352 P.3d 200 (2015). A defendant's failure to object to the admission of

evidence waives the issue on appeal. State v. Guloy, 104 Wn.2d 412, 421, 705

P.2d 1182(1985).

Only relevant evidence is admissible. ER 402. Evidence is relevant if it

has "any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be

without the evidence." ER 401. "The threshold to admit relevant evidence is

very low. Even minimally relevant evidence is admissible." State v. Darden, 145

Wn.2d 612, 621,41 P.3d 1189(2002). However, relevant evidence "may be

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

prejudice." ER 403. Unfair prejudice "is that which is more likely to arouse an

emotional response than a rational decision by the jury." State v. Gould, 58 Wn.

App. 175, 183, 791 P.2d 569 (1990).

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No. 75277-4-1/11

Here, Berhe raises several vague contentions concerning the trial court's

decision to admit the video recording of his custodial interrogation. Berhe

asserts that(1)the video recording was not relevant evidence because he did

not admit to anything during the interrogation, and (2) the video recording was

unfairly prejudicial because it showed him being combative and hostile toward

the detectives and because he indicated during the interrogation that he had past

experience dealing with the police.

As a preliminary matter, it does not appear that Berhe objected to the

admission of the videotape recording. In his brief, Berhe asserts that he "asked

to exclude the video" recording but the citation to the record that he provides

reveals no such request. Rather, the record indicates that Berhe merely objected

to the admission of certain statements made during the interrogation (concerning

Berhe's past experiences with the police). Those statements were edited out of

the video recording and Berhe's counsel approved of the edits. Thus, Berhe

received the remedy that he sought.

But even had Berhe objected to the admission of the video recording on

the grounds that he now raises, his claim would still fail. First, the video

recording did not need to show Berhe admitting to a crime before it could be

deemed at least "minimally relevant" because it showed Berhe lying to detectives

concerning several key matters. Second, although Berhe's demeanor during the

interrogation was certainly unflattering, he has not shown that the risk of unfair

prejudice outweighed the probative value of the video recording. There was no

abuse of discretion.
No. 75277-4-1/12

IV

Berhe next contends that the prosecutor committed flagrant misconduct

throughout the trial, depriving him of a fair trial. This is so, he asserts, because

the prosecutor improperly shifted the burden of proof, vouched for the credibility

of the State's witnesses, expressed his personal opinion of Berhe's guilt,

misstated the law, impugned the role and integrity of defense counsel, invited the

jury to decide the case on emotional grounds, and made statements that invaded

the province of the jury. None of these claims warrant appellate relief.

To prevail on a claim of prosecutorial misconduct, the defendant must

show that the prosecutor's conduct was both improper and prejudicial in the

context of the entire record and circumstances at trial. State v. Miles, 139 Wn.

App. 879, 885, 162 P.3d 1169 (2007). A defendant must object to a prosecutor's

improper argument at trial. m[C]ounsel may not remain silent, speculating upon a

favorable verdict, and then, when it is adverse, use the claimed misconduct as a

life preserver on a motion for new trial or on appeal." State v. Reed, 168 Wn.

App. 553, 577-78, 278 P.3d 203(2012)(alteration in original)(internal quotation

marks omitted)(quoting State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747

(1994)). If a defendant does not object to the alleged misconduct at trial, the

defendant is deemed to have waived any claim of error unless it is shown that

"(1)`no curative instruction would have obviated any prejudicial effect on the jury'

and (2)the misconduct resulted in prejudice that'had a substantial likelihood of

affecting the jury verdict." State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653

(2012)(quoting State v. Thorgerson, 172 Wn.2d 438,455, 258 P.3d 43(2011)).

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No. 75277-4-1/13

A

Berhe first contends that the prosecutor, in rebuttal argument,

impermissibly shifted the burden of proof by presenting the jurors with a "false

choice" as to that which was required to acquit Berhe.

It is misconduct for a prosecutor to shift the burden of proof to the

defendant. Miles, 139 Wn. App. at 890. A prosecutor engages in misconduct by

arguing that the jury must conclude that the State's witnesses are either lying or

mistaken in order to return a verdict of not guilty. State v. Fleming, 83 Wn. App.

209, 213, 921 P.2d 1076 (1996). Similarly, "[Ole tactic of misrepresenting

defense counsel's argument in rebuttal, effectively creating a straw man easily

destroyed in the minds of the jury, does not comport with the prosecutor's duty to

'seek convictions based only on probative evidence and sound reason." State v.

Thierry, 190 Wn. App. 680, 694, 360 P.3d 940(2015)(quoting State v.

Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74(1991)), review denied,

185 Wn.2d 1015(2016).

However, a prosecutor has "wide latitude to argue reasonable inferences

from the evidence." In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286

P.3d 673(2012). "[Tjhe prosecuting attorney is entitled to make a fair response

to the arguments of defense counsel." State v. Brown, 132 Wn.2d 529, 566, 940

P.2d 546 (1997). In this regard, "[i]t is not misconduct for a prosecutor to argue

that the evidence does not support the defense theory." State v. Graham, 59

Wn. App. 418,429, 798 P.2d 314 (1990).

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No. 75277-4-1/14

Here, counsel for Berhe argued during closing argument that Berhe was

innocent, that the State ignored witnesses who contradicted its theory of the

case, and that those witnesses who did testify on behalf of the State were lying.

Over the last month,few weeks, month, you have heard
from approximately 40 witnesses. They fall into two general
categories: Eyewitness who didn't see what happened but are
trying very hard to help. . .. The second category is witnesses from
Everett's party circle who did see what happened, and they are
trying very hard to obscure the truth.
And there is actually a third group of witnesses in this case.
These are the witnesses that the State ignored. . . . The State has
ignored witnesses that contradict their story line just like the
detectives did.

Berhe's attorney also argued that the State's witnesses were lying to

protect the real killer.

Claire is lying about what she saw to protect someone, and
it's not Tomas. She had just met Tomas that day. Lucci, Elijah,
and Mike are also lying. They are simply not consistent with
themselves or each other. And the question then becomes not if
they are lying but why? It is to protect someone, and it's not
Tomas. They each point finger at Tomas in inconsistent ways, in
ways that are uncorroborated by any forensic evidence or any
eyewitness evidence.

In response to defense counsel's argument, the prosecutor's rebuttal

argument included the following:

The defense argument here can be really boiled down to
this: It requires you to buy off on three principles.
One is that there is a deep conspiracy to hide the true
identity of the true killer.
Two, there is a deep conspiracy to frame Berhe, the
innocent patsy.
And three, that Berhe is the unluckiest man in the world.
You have to—their argument is that you have to buy off on
all three of those theories because if one of them collapses, the
whole defense argument collapses.
Conspiracy Theory Number 1, that there is a deep
conspiracy where Stukenberg, Cascioppo, and Washington are

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No. 75277-4-1/15

covering up for the real killer. That's certainly a theory. It's not
supported by any evidence.

Berhe then interposed an objection, asserting that the prosecutor's rebuttal

argument constituted burden shifting. The trial court overruled the objection.

The prosecutor continued:

There is no doubt that the burden of proving those elements
that I showed you on the screen are mine. I'm not shifting that
burden on them. All I'm saying is they come up here, and they
have made an impassioned argument for an hour and 15 minutes,
right?
So what supports those arguments that they are making?
They don't get to come up here and say a bunch of things and have
you just accept them. Scrutinize it.
Where is the evidence of this conspiracy theory?

There is no evidence to support Conspiracy Theory Number
1, which is a conspiracy to hide evidence.
The second prong that they absolutely have to have you
believing is that—it's more far-fetched than Number 1—is that this
deep conspiracy requires Stukenberg, Cascioppo, and Washington
to not only cover up for the real killer, but they are willing to finger
an innocent patsy.
Where is the evidence of that?
There is none.

The conspiracy theory also requires you to believe that he is
the unluckiest man in the world. Why I say that is because it
requires you to ignore all the other evidence we talked about, the
concrete, tangible, evidence.

I don't want to sound flip, but this is the type of conspiracy
that the wackiest conspiracy website would not even give any time
to.
I'll skate through this in the interests of time.
They ask you to view evidence very differently than we do.
It's up to you how you view the evidence.
Again, I suggest that you view the evidence first by taking a
look at what's concrete and what's tangible and working from there.
They are asking you to kind of throw it all up on the wall and just
take little bits and pieces from what people say and, since it's a big
mess, throw your hands up in the air, and find him not guilty.

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No. 75277-4-1/16

Contrary to Berhe's assertions, the prosecutor's rebuttal argument was not

an improper characterization of the defense's theory. Berhe's counsel argued

that Berhe was innocent and that the State and its witnesses were lying to

protect the identity of the true killer. The prosecutor's rebuttal argument was a

direct response to that argument. At no point did the prosecutor argue to the jury

that it must believe the defense's theory or that it must disbelieve the State's

witnesses before it could acquit. Rather, the prosecutor(1)summarized the

argument made by defense counsel,(2) argued that there was no evidence to

support the defense's theory, and (3) urged the jury to consider all of the

evidence. Responding to defense counsel's argument and arguing that no

evidence supports it is not misconduct. Brown, 132 Wn.2d at 566; Graham,59

Wn. App. at 429.

Berhe next contends that the prosecutor improperly vouched for the

credibility of the State's witnesses and injected his personal opinion into the

case. This is so, he asserts, because the prosecutor repeatedly used "we know"

statements during closing argument.

It is improper for a prosecutor to personally vouch for the credibility of a

witness. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29(1995). "Vouching

may occur in two ways: the prosecution may place the prestige of the

government behind the witness or may indicate that information not presented to

the jury supports the witness's testimony." State v. Robinson, 189 Wn. App.

877, 892-93, 359 P.3d 874(2015)(internal quotation marks omitted)(quoting

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No. 75277-4-1/17

State v. Coleman, 155 Wn. App. 951, 957, 231 P.3d 212(2010)). "Prejudicial

error will not be found unless it is `clear and unmistakable' that counsel is

expressing a personal opinion." State v. Allen, 161 Wn. App. 727, 746, 255 P.3d

784(2011)(internal quotation marks omitted)(quoting State v. Brett, 126 Wn.2d

136, 175, 892 P.2d 29(1995)), aff'd, 176 Wn.2d 611, 294 P.3d 679(2013).

Here, Berhe asserts that the prosecutor used "we know" statements 18

times during closing argument. For example, the prosecutor stated during

closing argument:

But now let's look at James Brighton's testimony. Not in
isolation, but in relation to all the other evidence that we already
know is the tangible, concrete stuff. And when we can compare it
to that stuff and we compare it to that evidence and we view it in
conjunction with that evidence, we are convinced that Berhe is the
shooter, right? It's proven beyond a reasonable doubt.

Berhe objected to the prosecutor's use of "we" at trial and contends on appeal

that such statements constitute vouching.

As a preliminary matter, Berhe provides only a single out-of-state authority

for the proposition that it is always misconduct for a prosecutor to use "we know"

statements during closing argument. We have previously rejected such a

contention. See Robinson, 189 Wn. App. at 894 (noting that "we know"

statements are not always misconduct).

But that does not mean that "we" statements are always appropriate. To

the contrary, courts routinely chastise prosecutors for the use of such

statements. See United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005)

(a prosecutor's use of"we know" "readily blurs the line between improper

vouching and legitimate summary"); United States v. Bentley, 561 F.3d 803, 812

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No. 75277-4-1/18

(8th Cir. 2009)(it is improper to use "we know""when it suggests that the

government has special knowledge of evidence not presented to the jury, carries

an implied guarantee of truthfulness, or expresses a personal opinion about

credibility"); State v. Mavhorn, 720 N.W.2d 776, 790(Minn. 2006)("[A]

prosecutor is not a member of the jury, so to use 'we' and 'us' is inappropriate

and may be an effort to appeal to the jury's passions.").

However, a prosecutor's use of "we" or "we know" in argument is unlikely

to warrant reversal. Although Berhe complains that the prosecutor used "we"

statements repeatedly, he does not identify a single instance in which the

prosecutor's use of such a statement placed the prestige of the government

behind a witness or indicated that information not presented to the jury supported

the State's case. See Robinson, 189 Wn. App. at 892-93. Here, as in Robinson,

the prosecutor's use of"we know" did not imply special knowledge, express a

personal opinion, or attempt to appeal to the jury's passions. 189 Wn. App. at

893-94.

Prosecutors should refrain from using "we" and "we know" statements

during closing argument. The jury and the prosecutor are not aligned against the

defendant. Nevertheless, the prosecutor's statements at issue here did not

constitute vouching and, thus, did not constitute misconduct.

Berhe next contends that the prosecutor engaged in misconduct by

misstating the law and by impugning the role and integrity of defense counsel

during rebuttal argument.

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No. 75277-4-1/19

A prosecutor commits misconduct by misstating the law in closing

argument. State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940(2008). It is also

misconduct for the prosecutor to disparagingly comment on defense counsel's

role or impugn the integrity of defense counsel. Thorgerson, 172 Wn.2d at 451.

Here, during closing argument, Berhe's attorney argued that the State had

strategically declined to call certain witnesses to testify. Berhe's counsel

'suggested that these witnesses contradicted the State's time line.

And there is actually a third group of witnesses in this case.
These are the witnesses that the State ignored. The State's case,
his opening statement, his closing statement, the State's case has
been misleading. The State has ignored witnesses that contradict
their story line just like the detectives did.

Also, the State has mentioned only these two eyewitnesses,
choosing to leave out all the contradictory 911 callers and
neighbors.
. . ..
Despite the fact that there were nine people in the Eastlake
parking lot that night, nine people who likely saw who the real
shooter was, the State called Lucci, Claire, Mike, and Elijah. We
did not hear from Dominic. Where was Dominic? We did not hear
from Kevin Simmonson. Where was Kevin? We did not hear from
Jonah Evett. Where was Jonah Evett? The State failed to call
witnesses who would contradict their story line, just like the
detectives failed to follow leads that pointed to a suspect other than
Tomas.

Counsel for Berhe also noted during closing argument that the State failed

to present evidence to corroborate a witness's testimony.

Despite the fact that Detective Cruise told us he spoke to all
other 13 homicide detectives at Seattle Police Department about
recent homicides, he was unable to corroborate Elijah's story.
There is no corroboration that Tomas even has family in Seattle, in
Washington nor any corroboration that Elijah and Tomas even went
to Greenlake that day.
If the State could corroborate his story with cellphone tower
data that they said—Detective Cruise said they received, he would

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No. 75277-4-1/20

have heard it. You would have heard that evidence. You didn't
hear it because they don't have it. Detective Cruise told you
himself he was never able to figure out any motive.

In rebuttal argument, the prosecutor responded to both arguments made

by defense counsel.

They talk about missing witnesses, and the way they
phrased it, the way counsel phrased it, was the State didn't call
Dominic, they didn't call Kevin, they didn't call Jonah because they
would contradict their story line.
Well, where does that come from? Is there evidence that
Dominic, Kevin, and Jonah would contradict the State's story line?
That's the inference they want you to draw, but there is no
instruction at all that the Judge gave you that says if the State
doesn't call a witness, you should draw a negative inference from
that; you should assume that that person is going to contradict the
State's story line. There is absolutely no authority for that. That's
their theory. They want you to buy off on it, but it's not supported
by the law.
• •

They talk about the cell tower evidence. What they ask you
to assume—again, it's not in the law—but they have asked you to
assume that since the State didn't present any of this evidence, it's
bad for the State. There's no law that says that.

On appeal, Berhe contends that the prosecutor's rebuttal argument

misstated the law and impugned the role and integrity of defense counsel. This

is so, he asserts, because the prosecutor suggested that defense counsel did not

have a right to argue that the State's failure to properly investigate and present

evidence could be used to find reasonable doubt. Moreover, Berhe avers, the

prosecutor's rebuttal argument maligned defense counsel by suggesting that

defense counsel was deceiving the jurors.

As a preliminary matter, Berhe did not object to the prosecutor's rebuttal

argument on these grounds at trial. Accordingly, he must demonstrate not only

that the prosecutor's statements were both improper and prejudicial in the

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No. 75277-4-1/21

context of the entire argument, but that the statements were "so flagrant and ill

intentioned that no curative instruction would have been capable of neutralizing

the resulting prejudice." Reed, 168 Wn. App. at 578.

Berhe's contentions are unpersuasive. Just as defense counsel was

entitled to argue that the State had fallen short of meeting its burden, the

prosecutor was entitled to make a "fair response to the arguments of defense

counsel." Brown, 132 Wn.2d at 566. Additionally, nothing in the prosecutor's

rebuttal argument served to impugn the role or integrity of defense counsel.

Prosecutors are afforded significant latitude in closing arguments—it is not

improper to disparage opposing counsel's arguments. Warren, 165 Wn.2d at 30.

Moreover, even assuming that the prosecutor's rebuttal argument did misstate

the law, Berhe has made no attempt to show that such a misstatement could not

have been neutralized through a proper curative instruction. No appellate relief

is warranted.

Berhe next contends that the prosecutor, in closing argument, improperly

encouraged the jury to reach a verdict based on what "feels right."

It is misconduct for a prosecutor to appeal to the jury's passion and

prejudice and encourage the jury to base its verdict on emotion, rather than on

properly admitted evidence. Glasmann, 175 Wn.2d at 710.

Here, prior to discussing the elements of the charged crimes, the

prosecutor made the following argument:

The law is not a mystic thing, right? It's supposed to
represent us as a society. That's what the law is. Our shared

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No. 75277-4-1/22

beliefs, our shared understanding, our shared morals. The law is
simply a codification of it. We put it in writing, we have some
numbers attached to it, and we put it all in a book. And that's what
you have before you in the form of these jury instructions: The law.
At first blush, you might look at this and think, God, that's
really complicated, it's really wordy, it's killed a lot of trees. It might
be confusing. But I suggest to you it's not. Take a look at it. If you
are confused by it, read it again because if you read it carefully and
you think about it, you will see that it makes sense. That's because
the law is rooted in our common intellectual sense. The law is also
rooted in our common moral sense. Rooted in our common
intellectual sense and rooted in our common moral sense.
What that means is if we apply the law to the facts that are
proven at trial, if we follow the law, we are going to reach the
correct verdict. And when we do that, because it's our shared
common intellectual sense and our common moral sense, when we
follow the law, it will feel right. And it will feel right—

Berhe interposed an objection, asserting that the prosecutor's argument

constituted improper vouching. The trial court overruled the objection and the

prosecutor continued:

It will feel right here, intellectually. It will feel right here,
morally. It will feel right here. That's because it makes sense. The
law makes sense. It makes sense here.

Contrary to Berhe's assertions, the prosecutor's argument did not

encourage the jury to render a verdict based on what "feels right." Rather, the

context of the closing argument makes clear that the prosecutor was describing

how following and applying the law "feels right." Such an argument is not

misconduct. Indeed, "courts frequently state that a criminal trial's purpose is a

search for truth and justice." State v. Curtiss, 161 Wn. App. 673, 701, 250 P.3d

496(2011).

In any event, the trial court instructed the jury to reach a decision "based

on the facts proved to you and on the law given to you, not on sympathy,

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No. 75277-4-1/23

prejudice, or personal preference." The jury is presumed to have followed the

court's instruction. Curtiss, 161 Wn. App. at 702. Berhe fails to establish error.

Berhe next contends that the prosecutor improperly misrepresented facts

not in evidence during his examination of Detective Alan Cruise.

Prior to trial, counsel for Berhe sought to admit evidence of a firearm

found on the body of the victim. Defense counsel explained that "there is

evidence in this case that the firearm that was found on Mr. Williams' person was

a firearm that he stole from Dominic Oliveri." Counsel continued, "It's the

defense theory, obviously, that Mr. Oliveri had motive to kill Mr. Williams and

sought to do so on the day of the incident." Counsel noted, however, that Berhe

had no intention of calling Oliveri to testify because "[o]bviously, Mr. Oliveri will

invoke his Fifth Amendment privilege. He likely won't be with us to discuss his

take on it."

Neither counsel for Berhe nor the State had been able to directly contact

Oliveri. Both parties had spoken to Oliveri's counsel, Tim Leary, who denied

requests to speak with Oliveri and stated that Oliveri would exercise his right to

remain silent if called to testify. Both parties recognized that Oliveri could not

make a "blanket invocation" of his right to remain silent when he did not know

what questions would be asked of him. Nevertheless, both parties notified the

trial court that they would not seek to call Oliveri as a witness.

At trial, Berhe's attorney sought to implicate Oliveri by eliciting testimony

from several witnesses. Several witnesses testified that Oliveri had disappeared

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No. 75277-4-1/24

following the murder. In response to that testimony, the State elicited the

following testimony from Detective Cruise, who was involved in investigating the

case:

Q. Let me ask you about Dominic Oliveri.
A. Okay.
Q. You told us that you did interview him pretty early on in this
investigation.
A. Yes.
Q. Have you had throughout this investigation reliable contact
information for Mr. Oliveri?
A. I have.
Q. Do you continue to have reliable contact information for Mr.
Oliveri?
A. I do.
Q. Do you know if that information was shared with the defense?
A. Yes, it was.

Berhe did not object to the prosecutor's line of questioning. Rather,

following a brief recess, Berhe's attorney argued to the trial court that the

prosecutor's questions created the insinuation that defense counsel spoke with

Oliveri, did not like what he had to say, and decided to not call him to testify. The

trial court agreed that the jury would wonder why Oliveri was not called to testify

if both parties were in contact with him. Accordingly, the trial court permitted

Berhe's counsel to elicit testimony clarifying that the parties had successfully

contacted Leary, but not Oliveri himself. Furthermore, the trial court ruled that

neither party could elicit testimony that Oliveri had invoked his Fifth Amendment

rights.

On appeal, Berhe contends that the prosecutor's line of questioning

improperly injected information implying that Oliveri was an available witness and

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No. 75277-4-1/25

faulting the defense for failing to call him. Berhe also complains that the jury was

never told that Oliveri was asserting his Fifth Amendment right to remain silent.

Berhe's contentions are unavailing. As discussed herein, Berhe did not

object to the prosecutor's line of questioning. Rather, Berhe sought to elicit

testimony clarifying that the defense had contact information for Oliveri's

attorney, rather than contact information for Oliveri himself. The trial court

granted Berhe's request. Detective Cruise later testified that he had contact

information for only Oliveri's attorney and that Oliveri himself was unwilling to

speak with Cruise. As for Berhe's contention that he was somehow prejudiced

by the fact that the jury was not told that Oliveri was invoking his Fifth

Amendment rights, counsel for Berhe explicitly told the trial court that he was not

seeking to elicit such testimony. There was no error.

Berhe also contends that the prosecutor improperly invaded the province

of the jury by eliciting opinion testimony about a surveillance video.

Detective Jon Engstrom testified on behalf of the State. Engstrom's role in

this case was to provide technical investigation support. Specifically, Engstrom

recovered surveillance video from a convenience store in Eastlake. Engstrom

testified that, after collecting the surveillance video, he checked the date and time

on the video and compared it to his cellular phone.

The State called Detective Cruise and the surveillance video was played

for the jury. As the video was playing, the prosecutor asked Cruise various

questions about the individuals who appeared in the video. Berhe objected to

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No. 75277-4-1/26

the testimony. "Your Honor, Detective Cruise does not have any independent

knowledge of what was going on on that day. He is just looking at the same

thing the jurors are looking at. He does not have any expertise in reviewing this

video. I would just ask that the jurors be allowed to see the video." The trial

court ruled that the State could ask Cruise what he saw on the video.

On appeal, Berhe contends that the prosecutor improperly invaded the

province of the jury by asking Cruise to identify the various people who appeared

in the video. But Berhe fails to elaborate further as to how the complained of

conduct constitutes prosecutorial misconduct. Berhe's contention is better

framed as an assignment of error to the trial court's evidentiary ruling permitting

Cruise to give lay opinion testimony concerning the identity of the individuals in

the video.

We review a trial court's ruling admitting evidence for an abuse of

discretion. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). A trial

court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47,

940 P.2d 1362(1997). "A lay witness may give an opinion concerning the

identity of a person depicted in a surveillance photograph if there is some basis

for concluding that the witness is more likely to correctly identify the defendant

from the photograph than is the jury." State v. Hardy, 76 Wn. App. 188, 190, 884

P.2d 8(1994), aff'd, 129 Wn.2d 211, 916 P.2d 384(1996).

Berhe makes no argument that he was prejudiced in any way by Cruise's

testimony concerning what he saw on the surveillance video. Indeed, he does

- 26 -
No. 75277-4-1/27

not even dispute that the individuals who appeared on the video were the same

individuals identified by Cruise. Berhe's contentions that Cruise's testimony

invaded the province of the jury and that the prosecutor committed misconduct

by eliciting such testimony are nothing more than conclusory arguments, lacking

support.

There was no error.

V

Berhe next contends that he was deprived of a fair trial because, he avers,

racial animus existed among the jurors. Berhe asserts that the trial court erred

both by not holding a full evidentiary hearing on the allegation and by denying his

motion for a new trial. We disagree.

"Under Washington law, the right to a jury trial includes the right to an

unbiased and unprejudiced jury." State v. Jackson, 75 Wn. App. 537, 543, 879

P.2d 307(1994). Minimal standards of due process are violated by the failure to

provide a defendant with a fair hearing. Jackson, 75 Wn. App. at 543.

Trial courts have "significant discretion to determine what investigation is

necessary on a claim of juror misconduct." Turner v. Stime, 153 Wn. App. 581,

587, 222 P.3d 1243(2009). "A strong, affirmative showing of misconduct is

necessary in order to overcome the policy favoring stable and certain verdicts

and the secret, frank and free discussion of the evidence by the jury." State v.

Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994). "In general, it is

preferable to resolve the question of juror bias during voir dire rather than

through a postverdict motion for a new trial. When, however, this type of issue is

- 27 -
No. 75277-4-1/28

raised postverdict and the moving party has made a prima facie showing of bias,

an evidentiary hearing is always the preferred course of action." Jackson, 75

Wn. App. at 543-44.

We review a trial court's decision to deny a motion for a new trial for an

abuse of discretion. Dean v. Grp. Health Coop. of Puget Sound,62 Wn. App.

829, 834, 816 P.2d 757(1991). A trial court abuses its discretion when its

decision is manifestly unreasonable or based on untenable grounds or reasons.

Littlefield, 133 Wn.2d at 46-47.

Here, following entry of the verdicts, one of the jurors (the holdout juror)

voluntarily contacted defense counsel and stated that she believed that juror

misconduct had occurred. Berhe sought a time extension to file a motion for a

new trial and the State requested a hearing to discuss the motion. In the interim,

the trial court was contacted by at least one other juror who complained of

unsolicited contact from defense counsel. Following a hearing, the trial court

ordered the parties to refrain from initiating further contact with the jurors. The

trial court sent a letter to the jurors, informing them that counsel would like to

speak with them and providing them with counsel's contact information.

Defense counsel worked with the holdout juror to craft a declaration that

set forth the holdout juror's concerns. The declaration stated that the holdout

juror did not believe that Berhe was guilty, that she felt personally attacked and

belittled during the deliberation process, and that she felt that these attacks were

the result of implicit racial bias.

- 28 -
No. 75277-4-1/29

The holdout juror stated in her declaration that she was accused of being

"partial" toward Berhe because she was the only African American juror. The

holdout juror stated that some jurors reacted negatively and verbally aggressively

toward her after she raised concerns about police misconduct toward African

Americans. The holdout juror stated that the treatment that she received from

the other jurors made her feel "emotionally abused; so much so that it became

debilitating," and that she "couldn't handle the pressure of being a hold-out

anymore."

The holdout juror's declaration set forth no allegations of racially,charged

remarks or race-based derision made by the other jurors. Neither did the

declaration allege that the jurors were biased against Berhe because of his race.

Rather, the declaration consisted of the holdout juror's subjective impressions

regarding the other juror's conduct and the conclusory statement that such

conduct must have been the result of implicit racial bias.

Six other jurors voluntarily contacted the prosecutor and provided

declarations concerning the deliberation process. Each juror was asked two

questions:(1)"Did you personally do anything to [the holdout juror] which was

motivated by racial bias during deliberations?" and (2)"Did you observe any

other juror do anything to [the holdout juror] which appeared to be motivated by

racial bias during deliberations?" Each of the jurors answered both questions in

the negative. Several of the jurors expressed frustration with the holdout juror

because, although she resisted the notion that Berhe was guilty, she "could not

support her position with any of the evidence,""bas[ed] her position on sentiment

- 29 -
No. 75277-4-1/30

rather than facts & reasoning," and "had not been open[] minded during the entire

process."

The trial court considered the declarations submitted by each party. The

trial court observed that the holdout juror was the only African American on the

jury and that she was the last juror to vote to convict. The trial court further

noted:

In her declaration,[the holdout juror] stated that she felt personally
attacked by her fellow jurors.

. . . The jury was polled at the time of the verdicts. Each juror was
asked if the verdicts were the verdicts of the jury as a whole and
that juror's verdicts individually. Each juror, including [the holdout
juror], verbally stated that the verdicts returned were the verdicts of
the jury as a whole and that juror's verdicts individually.

.. . The only evidence to support[the holdout juror's] subjective
feeling that she was attacked by her fellow jurors because of her
race comes from [the holdout juror's] declaration.

. .. The only evidence that race may have inappropriately been
discussed by the jurors during deliberations comes from [the
holdout juror's] declaration.

... The only evidence that members of the jury were implicitly or
explicitly racially bias[ed] or inappropriately considered race comes
from [the holdout juror's] declaration.

The trial court arrived at the following conclusions:

It is not inappropriate for jurors to press other jurors on their
respective positions during deliberations.

... The remaining hold-out juror is frequently subject to pressure by
fellow jurors and such pressure is not inappropriate.

. . . The court finds that there is insufficient evidence to conclude
that juror misconduct occurred with respect to racism — implicit or
explicit.

- 30 -
No. 75277-4-1/31

. .. Mr. Berhe failed to make a prima facie showing of juror
misconduct warranting an evidentiary hearing. State v. Jackson, 75
[Wn. App. 537, 879 P.2d 307](1994).

On appeal, Berhe asserts that the holdout juror's declaration necessarily

constitutes a prima facie showing of racial bias and that the trial court erred by

failing to hold an evidentiary hearing in light of that declaration. Berhe relies on

our opinion in Jackson, 75 Wn. App. 537, in support of this proposition.

Jackson involved an African American defendant who moved for a new

trial based on allegations of racial bias and misconduct by one of the jurors (juror

X). Jackson obtained a declaration from a juror who overheard juror X making

racially charged statements during deliberations. For example, juror X was

overheard complaining about having to interact with people of color during a

family reunion:"The worst part of the reunion was that I had to socialize with the

coloreds," "[y]ou know how those coloreds are." Jackson, 75 Wn. App. at 540

(internal quotation marks omitted).

The trial court in Jackson considered the declaration and denied the

motion for a new trial, finding that juror X's statements did not indicate racial bias.

75 Wn. App. at 542. We reversed, holding that the trial court erred by denying

Jackson's motion for a new trial without first conducting an evidentiary hearing.

The trial court, however, decided not to conduct an
evidentiary hearing and, based only on the affidavit, denied
Jackson's motion for a new trial. In a case where the defendant
was African-American, the defendant's alibi witnesses were
African-American, and the ultimate outcome turned on credibility,
this was error. An evidentiary hearing was the only appropriate
course of action given Jackson's prima facie showing of racial bias.
Accordingly, we hold that as a matter of due process, the trial court
erred when it ruled on Jackson's motion for a new trial without
having conducted an evidentiary hearing.

- 31 -
No. 75277-4-1/32

Jackson, 75 Wn. App. at 544(footnote omitted). In so holding, we noted that

Juror X's statements "create[d] a clear inference of racial bias" and that such

statements "demonstrated that juror X held certain discriminatory views which

could affect his ability to decide Jackson's case fairly and impartially." Jackson,

75 Wn. App. at 543.

Here, unlike in Jackson, the holdout juror's declaration contained no

details buttressing the allegation of racial bias. The declaration set forth the

holdout juror's subjective perceptions concerning the conduct of the other jurors

and the holdout juror's belief as to the reasons for that conduct. The trial court

credited the holdout juror's perceptions. But, the court concluded, those

perceptions did not indicate racial bias among the jurors. Rather, the trial judge

reasoned, they reflected pressures commonly experienced by holdout jurors.

The holdout juror's assertion of racial bias was, thus, a conclusory allegation

lacking particularized factual support.

The trial court approached this issue in a deliberate and careful manner.

The trial court considered the holdout juror's declaration and found that the

allegations contained therein, taken at face value, were insufficient to establish a

prima facie showing of racial bias. In so ruling, the trial judge had "the advantage

of observing the demeanor of the jurors during voir dire and throughout the trial."

Dean,62 Wn. App. at 838. The judge's decision to deny Berhe's request for a

more expansive evidentiary hearing or a new trial was tenable and consistent

with the standards articulated in Jackson, 75 Wn. App. at 544.

- 32 -
No. 75277-4-1/33

The trial court did not abuse its discretion by proceeding as it did. Nor did

it err by concluding that neither a fuller hearing nor a new trial was warranted.

VI

Berhe next contends that the sentencing court misunderstood its authority

to impose concurrent sentences for each of the firearm enhancements.

Berhe was sentenced to a total term of confinement of 420 months.

Berhe's sentence consisted of a 300 month standard range sentence for the

murder charge and a 113 month standard range sentence for the assault charge,

to be served concurrently. The court imposed two 60 month sentences for the

firearm enhancements, to be served consecutively. The court rejected Berhe's

request to have the firearm enhancements served concurrently after finding that

it did not have the authority to do so.

On appeal, Berhe contends that the court erred by refusing to impose

concurrent sentences for the firearm enhancements. This is so, he asserts,

because the court misunderstood its authority to impose such a sentence.

Pursuant to RCW 9.94A.533(3)(e), firearm enhancements are "mandatory,

shall be served in total confinement, and shall run consecutively to all other

sentencing provisions, including other firearm or deadly weapon enhancements."

This statutory language deprives sentencing courts of the discretion to impose an

exceptional sentence with regard to firearm enhancements. State v. Brown, 139

Wn.2d 20, 29, 983 P.2d 608(1999).

Nevertheless, Berhe asserts that Brown is no longer good law and that

State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409(2017), provides such

- 33 -
No. 75277-4-1/34

discretion to sentencing courts. He is wrong. Houston-Sconiers holds that

"sentencing courts must have complete discretion to consider mitigating

circumstances associated with the youth of anyjuvenile defendant." 188 Wn.2d

at 21 (emphasis added). Accordingly, Houston-Sconiers overruled the holding in

Brown "with regard to juveniles." Houston-Sconiers, 188 Wn.2d at 21.

Berhe is not a juvenile. Accordingly, his sentence was unaffected by the

Houston-Sconiers decision.

VII

Finally, Berhe contends that cumulative errors mandate the reversal of his

conviction. Other than the single, harmless error of admitting certain custodial

statements, Berhe has not demonstrated any trial court error. There is nothing to

accumulate. Accordingly, this contention does not warrant appellate relief.

Affirmed.

We concur:

tr.tut, •gecvete

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