.pyug at o- W Wifx on
IN CLERKS OFFICE \
a»JRT.SIXTE CF WASHNCTNi
DATE FEB 2 2 ^0^ SUSAN l. carlson
I SUPREME COURT CLERK
GMIB'JUSTKE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter ofthe Personal Restraint of No. 94185-8
TODD DALE PHBLPS, En Banc
Petitioner.
Filed FEB 2 2 20!S
JOHNSON,J.—This case involves the issue of whether a prosecutor's
closing argument asserting a victim was "groomed" by the defendant, where
testimony of grooming was disallowed during trial, constitutes flagrant and ill-
intentioned misconduct requiring reversal. The Court of Appeals, Division Two,
granted Todd Phelps's personal restraint petition(PRP)and reversed his
convictions for third degree rape and sexual misconduct with a minor.^ The Court
of Appeals held that expert testimony is required if the State intends to rely on
grooming to argue and prove its case. Thus, because the prosecutor did not provide
expert testimony, the Court of Appeals found that the prosecutor argued facts not
in evidence during his closing argument. The Court of Appeals held that the
'The jury also found two aggravating factors:(1)Phelps knew or should have known
that A.A., the minor victim, was a particularly vulnerable victim and (2)Phelps used a position
of trust to facilitate commission of the crimes.
In re Pers. Restraint ofPhelps, No. 94185-8
prosecutor's actions constituted flagrant and ill intentioned misconduct and that
Phelps had shown the misconduct caused him actual and substantial prejudice. In
re Pers. Restraint ofPhelps, 197 Wn. App. 653, 389 P.3d 758, review granted, 189
Wn.2d 1001, 403 P.3d 38 (2017).
We reverse the Court of Appeals on both issues and hold that under the facts
and charges involved in this case, expert testimony on grooming was not required
and the use ofthe term "grooming" during closing argument did not amount to
arguing facts not in evidence. The prosecutor also did not commit flagrant and ill-
intentioned misconduct, nor has Phelps shown that if misconduct occurred it
caused him actual and substantial prejudice.
FACTS
Phelps was an assistant coach for the Pe Ell School girls' soflball team.
During the summer of 2010, Phelps took his family and members of the team to
tournaments most weekends. One ofthose team members was A.A., a 16-year-old
who had a strained relationship with her own parents. A.A. was dealing with
several emotional issues: she cut herself, experienced depression, and had
contemplated suicide.
Once Softball season started in February 2011, A.A. told Phelps she had
been cutting herself and had considered suicide. Over the next several months,
Phelps continued to talk with A.A. about her self-harm, her suicidal thoughts, and
In re Pers. Restraint ofPhelps, No. 94185-8
other personal issues. Phelps also told A.A. personal stories involving his sexual
experiences with women. According to A.A., Phelps explained that this was so she
could have dirt on him because he now had dirt on her. Over time, Phelps and A.A.
developed a relationship of in-person conversations, phone calls, and frequent
texts, sometimes late into the night.
Phelps also had A.A. show him where she cut herself at or near the tops of
her thighs, which required her to pull her pants halfway down. This happened
several times. Each time A.A. showed him her cuts, some kind of sexual contact
occurred; the contact escalated each time. During softball team trips, several
instances ofPhelps inappropriately grabbing parts of A.A.'s body occurred. A.A.
eventually told Melody Porter, her youth pastor's wife, that she and Phelps had
kissed. Porter reported the kiss to the school superintendent and Phelps was placed
on administrative leave.
With A.A.'s parents' consent, Phelps was reinstated as softball coach.
Several people, including members of the school board and A.A.'s parents,
instructed Phelps not to text A.A. anymore and to maintain an appropriate
coach/player relationship. Disregarding these warnings, Phelps and A.A. continued
to communicate on a near daily basis. When school officials discovered Phelps and
A.A. were still communicating, Phelps was forced to resign as coach in late April
In re Pers. Restraint ofPhelps, No. 94185-8
2011 and A.A.'s father told him not to have any further contact with A.A.
However,Phelps and A.A. continued to communicate.
Phelps and A.A. met several times in July while A.A. was with a friend. At
some point, Phelps talked with a coworker about how he could control A.A.'s
emotions. Phelps and A.A. eventually met in private at Phelps's brother's house,
where A.A. again showed Phelps her cuts. According to A.A., Phelps then forced
her to have sex with him. Soon after, A.A. went to go live with an aunt in Auburn.
About two months after the alleged rape occurred, A.A. told her parents she had
had sex with Phelps. Her parents called the sheriff and reported the rape.
Phelps was charged with one count ofthird degree rape and one count of
sexual misconduct with a minor. At trial, during voir dire, the prosecutor asked
potential jurors if they had ever heard of grooming and if they knew anything
about it; several jurors responded. No indication exists in the record that the
prosecutor talked about grooming in his opening statement. The focus of the
claimed misconduct arises in the context of closing argument.
The term "grooming" carne up twice during trial testimony. The first time
was during A.A.'s father's testimony. The prosecutor asked him what he thought
Phelps's intentions were. Defense counsel objected as to speculation, but the trial
judge overruled the objection. A.A.'s father responded,"I believe [Phelps's]
intentions were dishonorable. I believe he was grooming her to the end result of
In re Pers. Restraint ofPhelps, No. 94185-8
what he did. He ended up raping her on the 27th." 2 Verbatim Report of
Proceedings(VRP)(Apr. 18, 2012) at 180. Defense counsel did not object to this
response. The second time grooming came up was during the testimony of Yvonne
Keller, the other softball coach. The prosecutor asked her if she believed Phelps
was grooming A.A. Keller said she did just as defense counsel objected as to her
belief. The court sustained the objection. The prosecutor then asked Keller if she
knew anything about grooming. Defense counsel objected to relevance, and the
judge said,"That's an issue that is for expert testimony. She is not an expert. She's
already stated she's not an expert. So I'm sustaining the objection." 2 VRP (Apr.
18, 2012) at 211.
During closing arguments, the prosecutor went through the witnesses'
testimony and explained how the evidence showed A.A.'s isolation and
vulnerability, how A.A. trusted Phelps, Phelps's position of authority, how Phelps
bragged about being able to control A.A.'s emotions, and how Phelps selectively
disclosed A.A.'s secrets to others to keep the spotlight on her. The prosecutor also
discussed the day of the alleged rape in detail, as well as both A.A.'s and Phelps's
credibility.
The prosecutor used the term "groom" or "grooming" 19 times during his
argument and rebuttal. He referenced the jurors' remarks during voir dire about
grooming. He also pointed out the continuous, secretive nature of grooming, telling
In re Pers. Restraint ofPhelps, No. 94185-8
the jury that grooming does not happen out in the open and that it is a constant
process happening all the time. He stated that A.A. was a "prime candidate" to be
groomed because of her low self-esteem and stressed relationship with her family.
8 VRP (Apr. 26, 2012) at 1540. He argued that Phelps was not only grooming A.A.
but also grooming her family and friends around her to make himself appear
concerned about A.A.'s mental health. The prosecutor discussed Phelps's repeated
efforts to desensitize A.A. to sexual contact, arguing that because of grooming,
Phelps knew A.A. was not going to respond to his escalating sexual advances. He
used a similar argument to explain Phelps's sexually explicit remarks to A.A. and
his efforts to isolate her by having her break up with her boyfriend and stop talking
to her counselor. The prosecutor also argued grooming explained some aspects of
A.A.'s behavior, such as her efforts to protect Phelps by deleting their text
messages and her apparent obsession with him. Toward the end of his closing, the
prosecutor told the jury,"We're here because of grooming, we're here because of
deceit, concealment, half-truths, misrepresentations." 8 VRP (Apr. 26, 2012) at
1548.
The prosecutor's closing argument was accompanied by 97 PowerPoint
slides, 8 of which mentioned grooming. The defense attorney did not object to the
prosecutor's use of grooming in his closing argument or to the PowerPoint slides.
Phelps's trial defense apparently was that he did not commit the crimes because he
In re Pers. Restraint ofPhelps, No. 94185-8
was not there, but even if he did have sex with A.A., she consented. The jury found
Phelps guilty on all counts, including the aggravating circumstances.
Phelps filed an initial appeal. The Court of Appeals, Division Two,
affirmed,^ and Phelps filed a petition for review, which we denied. State v. Phelps,
181 Wn.2d 1030, 340 P.3d 228 (2015). Phelps then filed this PRP in the Court of
Appeals, raising the issue of prosecutorial misconduct. The Court of Appeals
granted the PRP and reversed Phelps's convictions. The State filed a motion for
discretionary review, and we granted review.
ISSUES
(1) Whether the State is required to present expert testimony if it intends to use
the concept of grooming to argue its case to a jury.
(2) Whether, by referencing grooming in closing argument, the prosecutor
committed flagrant and ill-intentioned misconduct.
ANALYSIS
The first issue is whether expert testimony is required when the State uses
the concept of grooming to argue its case to a jury. While we have never addressed
when and under what circumstances expert testimony on grooming is admissible,
several jurisdictions have held it is admissible, but not that it is required. See Jones
^ State V. Phelps, No. 43557-8-II(Wash. Ct. App. June 17, 2014)(unpublished),
http://www.courts.wa.gov/opinions/pdf/D2%2043557-8-
II%20%20Unpublished%200pinion.pdf. The issue of prosecutorial misconduct was raised and
rejected by the Court of Appeals in this initial appeal. The State here does not argue that Phelps
should be precluded from bringing this second prosecutorial misconduct claim in his PRP.
In re Pers. Restraint ofPhelps, No. 94185-8
V. United States, 990 A.2d 970,978(D.C. 2010); State v. Berosik, 2009 MT 260,
352 Mont. 16, 23-24, 214 P.3d 776(2009); Morris v. State, 361 S.W.3d 649,669
(Tex. Crim. App. 2011). States are divided on whether expert testimony is required
where the State intends to use grooming to argue its case. Compare State v. Akins,
298 Kan. 592, 315 P.3d 868 (2014), and State v. Sena, 2008-NMSC-053, 144 N.M.
821, 192 P.3d 1198, with Dandass v. State, So. 3d ,2017 WL 1709396,
cert, denied, 230 So. 3d 1023 (Miss. 2017).
Because this is an evidentiary issue, we evaluate it through the lens of our
Rules of Evidence (ER). Washington's rule on expert witnesses provides,"If
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise." ER 702. Our rule allows an expert to
testify about his or her specialized knowledge if it would help the jury understand
the evidence, but the rule does not require expert testimony where it would not be
helpful to the jury. It is within the sound discretion oftrial judges to determine the
admissibility of evidence pursuant to ER 702 and ER 403.
The only published Washington case dealing with expert testimony and
grooming is State v. Braham,67 Wn. App. 930, 841 P.2d 785 (1992). In that case,
the trial judge, over the defense's objection, allowed an expert to testify on the
In re Pers. Restraint ofPhelps, No. 94185-8
general characteristics of grooming. In closing argument, the prosecutor exhorted
the jury to infer the defendant's guilt based on the expert's testimony. The
prosecutor argued the elements of grooming present in that case were substantial
circumstantial evidence supporting '"that in fact'" the defendant had molested the
child. Braham,67 Wn, App. at 934. The Court of Appeals in reversing held that
such profiling evidence implying guilt based on characteristics of known offenders
was inadmissible.
In this case, Phelps argues that Braham establishes that grooming evidence
is per se inadmissible. We disagree. The Braham court expressly did not hold "that
such evidence will always be inadmissible" and described several situations in
which grooming evidence may be appropriate and admissible. Braham,61 Wn.
App. at 939. In reversing the defendant's conviction, the Braham court was
sensitive to the prejudicial effect and weight expert testimony may have for jurors,
potentially leading them to consider expert grooming testimony to be evidence of a
defendant's guilt. We have similarly recognized the concern that jurors may assign
inappropriate weight to expert testimony simply because it comes from someone
the court has deemed an expert. See State v. Black, 109 Wn.2d 336, 348-49, 745
P.2d 12(1987).
In Phelps's trial, expert testimony was not offered or admitted by the State.
One witness, without objection, opined about Phelps's motivation and testified he
In re Pers. Restraint ofPhelps, No. 94185-8
thought Phelps had groomed A.A. After a relevance objection, the trial court
disallowed a lay witness to express an opinion on whether she believed Phelps was
grooming the victim. Based on this record, this case does not present the issue of
under what circumstances expert testimony may be required or allow us to
determine whether a trial court's decision to admit expert testimony requires
reversal. Instead, we focus on the prosecutor's use of grooming in closing
argument and whether the State committed misconduct by arguing facts not
admitted during trial.
Once we accept review of a PRP, we review pure questions oflaw de novo.
In re Pers. Restraint ofCoats, 173 Wn.2d 123, 133, 267 P.3d 324(2011). Under
this standard of review, we discuss the burden as it rests on Phelps to prevail in his
PRP; the record must establish the underlying claim he brought in his PRP. A
personal restraint petitioner raising a prosecutorial misconduct claim must prove
the misconduct was either a constitutional en'or resulting in actual and substantial
prejudice or a fundamental defect resulting in a complete miscarriage ofjustice. In
re Pers. Restraint ofLui, 188 Wn.2d 525, 539, 397 P.3d 90(2017)(citing/« re
Pers. Restraint ofCross, 180 Wn.2d 664,616-11, 327 P.3d 660(2014)). This
principle arises under the Sixth and Fourteenth Amendments to the United States
Constitution and article 1, section 22 of the Washington State Constitution, which
guarantee the right to a fair trial; prosecutorial misconduct may deprive a
10
In re Pers. Restraint ofPhelps, No. 94185-8
defendant of this right.^ In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 703-
04, 286 P.3d 673 (2012)(plurality opinion).
Because Phelps did not object during trial, his prosecutorial misconduct
claim is considered waived unless the misconduct is '""so flagrant and ill-
intentioned that it cause[d] an enduring and resulting prejudice that could not have
been neutralized by a curative instruction.'"" Lui, 188 Wn.2d at 539 (alteration in
original)(quoting re Pers. Restraint ofCaldellis, 187 Wn.2d 127, 143, 385 P.3d
135 (2016)(quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997))).
When evaluating whether misconduct is flagrant and ill intentioned, we "focus less
on whether the prosecutor's misconduct was flagrant or ill intentioned and more on
whether the resulting prejudice could have been cured." State v. Emery, 174 Wn.2d
741, 762, 278 P.3d 653 (2012). In other words, prosecutorial misconduct is flagrant
and ill intentioned only when it crosses the line of denying a defendant a fair trial.
Put simply, to prevail in his PRP,Phelps must overcome three hurdles. First,
he must show the prosecutor committed misconduct. Second, because he did not
object during trial, Phelps must show that misconduct was flagrant and ill-
intentioned and caused him prejudice incurable by a jury instruction. Third,
^ The State argues we should use the term "prosecutorial error" rather than "prosecutorial
misconduct." Mot. for Discr. Review at 12-13. We decline to address this argument.
"Prosecutorial misconduct" is a legal term of art, and we use it as such. Continuity of the use of
this term is also necessary for research purposes in that a case search for "prosecutorial error"
might not locate prosecutorial misconduct cases.
11
In re Pers. Restraint ofPhelps, No. 94185-8
because he raises this issue in a PRP,Phelps must show the prosecutor's flagrant
and ill-intentioned misconduct caused him actual and substantial prejudice. We
address each ofthese hurdles in turn.
The Court of Appeals held that in arguing grooming to the jury without
presenting expert testimony, the prosecutor argued facts not in evidence, which
constituted flagrant and ill-intentioned misconduct. First, we must determine if the
prosecutor committed misconduct. Because the underlying claim is the prosecutor
argued facts not in evidence, we must discuss in general terms what a fact is. A
"fact" is "[sjomething that actually exists; an aspect of reality." BLACK'S Law
Dictionary 709(10th ed. 2014). A "fact in evidence" is "[a] fact that a tribunal
considers in reaehing a conclusion." Black's,supra, at 710. An "inference," on
the other hand, is "[a] conclusion reached by considering other facts and deducing
a logical consequence from them." BLACK'S,supra, at 897.
Definitions are only marginally helpful; there are no objective criteria to
distinguish between facts, inferences, and facts not in evidence. Facts are the
responses to the "who, what, where" questions prosecutors ask at trial. Witnesses
respond with their versions of the events giving rise to the charges through which
the State establishes the elements of the offense. In contrast, prosecutors have
"wide latitude to argue reasonable inferences from the evidence, ineluding
evidence respecting the credibility of witnesses." State v. Thorgerson, 172 Wn.2d
12
In re Pers. Restraint ofPhelps, No. 94185-8
438, 448, 258 P.3d 43 (2011). Prosecutors are free to argue their characterization
of the facts presented at trial and what inferences these facts suggest in closing
argument. Jurors are also specifically instructed not to consider closing arguments
as evidence, which further helps draw the line between fact and argument. 11
Washington Practice: Washington Pattern Jury Instructions: Criminal
1.02, at 21 (4th ed. 2016).
Depending on how the concept is used, grooming can be a fact. For
example, the prosecutor in Braham argued that because aspects of grooming were
present in that case, their presence was circumstantial evidence of the defendant's
guilt. Thus,the prosecutor in that case encouraged the jury to consider grooming as
a fact in evidence in reaching its ultimate conclusion about the defendant's guilt,
which the Braham court held was impermissible and reversed.
Here, the prosecutor was not using grooming in the same manner. Instead,
he used grooming to paint a picture ofthe evidence for the jury. Grooming is
descriptive of how Phelps's and A.A.'s relationship began, developed, and
expanded and in reality has or adds little value to what the State needed to prove:
that Phelps committed the crimes. The facts and the way the facts fit together are
two different things. The prosecutor's comments connecting the evidence to
grooming are more akin to permissible inferences drawn from the evidence than
arguing facts not in evidence.
13
In re Pers. Restraint ofPhelps, No. 94185-8
The Court of Appeals held the prosecutor had committed misconduct, in
part, because the grooming evidence was intended to rebut Phelps's claims that he
was merely trying to help A.A. deal with her personal issues. Phelps, 197 Wn. ,
App. at 682-83. However, it is not misconduct for a prosecutor to argue the
evidence does not support the defense theory; prosecutors are entitled to respond to
defense counsel's arguments. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747
(1994). Whether the defense's theory that Phelps was genuinely concerned about
A.A. and thus maintained contact with her has no bearing on the jury's ultimate
determination of whether Phelps committed the crimes of which he was accused.'^
Likewise, whether Phelps actually groomed A.A., per the prosecutor's theory, is
similarly establishing the background ofPhelps's and A.A.'s relationship and is
not key to the jury's determination ofPhelps's guilt.
Especially in this case, which involved the aggravators of abuse of trust and
vulnerability, the prosecutor understandably explained the evidence in the context
of Phelps's relationship with A.A. to establish a basis for these aggravating
circumstances. Even if prohibited from using the term "grooming" without expert
testimony, the prosecutor could have explained the evidence using grooming-
related concepts, such as developing trust, isolation, and manipulation. We have
Defense counsel also referenced grooming several times in his closing argument, which
somewhat weakens Phelps's claim that the prosecutor's use of grooming denied him a fair trial.
See Russell, 125 Wn.2d at 89.
14
In re Pers. Restraint ofFhelps, No. 94185-8
never held that jurors need expert testimony to establish that a defendant
manipulated or controlled someone;jurors can understand these concepts based on
common sense and experience. We have trouble envisioning a world in which
experts must be called into court to explain trusting relationships to jurors. Indeed,
expert testimony may have lent inappropriate weight to the issue of grooming,
which did not go to the ultimate determination of Phelps's guilt.
The State argues the prosecutor could have replaced "groomed" with the
word "manipulated" for the same effect in closing argument. We agree. The State
did, in fact, use those words interchangeably during its closing argument. See 8
VRP (Apr. 26, 2012) at 1540 (describing A.A. as "a prime candidate for grooming,
to be manipulated"). Little meaningful difference exists between the prosecutor's
comments and arguing Phelps had developed a "trusting relationship" with A.A. or
manipulated her. Various witnesses testified about Phelps's interactions with A.A.
and her family, her vulnerability as a troubled teenager, and the evolution of
Phelps's relationship with her.^ The prosecutor summarized this extensive
testimony, alluding to grooming only in that it was relevant to the context of
Phelps's and A.A.'s relationship. We find no support for Phelps's claim the
prosecutor presented his own invented definition of grooming to the jury, and even
^ The value of A.A.'s father's comment that he believed Phelps had groomed her is
debatable, but it is undisputed that that testimony was admitted.
15
In re Pers. Restraint ofPhelps, No. 94185-8
if this were the case, prosecutors are free to characterize the evidence to tell their
story in closing argument. Furthermore, the jury was instructed closing arguments
were not evidence and it could consider only the testimony and exhibits in reaching
its verdict.
We also find no suggestion the prosecutor used grooming as profiling
evidence or to argue Phelps was guilty because he had engaged in grooming.^ The
prosecutor thoroughly discussed the date of the rape itself, and any credibility
arguments he made centered on the differences between Phelps's and A.A.'s
accounts of what happened that day. We hold the prosecutor in this case did not
commit misconduct. He did not argue facts not in evidence, and his comments in
closing argument were not central to the verdict reached by the jury.^
It is the responsibility of trial courts to apply the standards for
admissibility of expert testimony under ER 702 and the Rules ofEvidence. Unlike
closing arguments, which jurors are specifically instructed are not evidence, there
is no similar instruction offering jurors guidance on how to interpret expert
testimony, which is offered to them as evidence or to assist in understanding
® While the State argued that Phelps "was grooming everybody else," 8 VRP (Apr. 26,
2012) at 1591, in context it was referring to Phelps's manipulation of the people surrounding
A.A., not Phelps's grooming of other girls or propensity to groom. Propensity evidence is
generally inadmissible under ER 404.
^ Because we hold the prosecutor did not commit misconduct, Phelps's ineffective
assistance of counsel claims of both trial and appellate counsel necessarily fail.
16
In re Pers. Restraint ofPhelps, No. 94185-8
evidence. As alluded to earlier, cases express concern about the weightjurors
might give to an expert opinion, so trial courts should be hesitant to admit expert
testimony on grooming. We reverse the Court of Appeals and hold the concept of
grooming, as used in this case, is within the common knowledge ofjurors and the
State was not required to present expert testimony to argue grooming to the jury.
Our holding is consistent with Braham, which discourages the use of expert
testimony on grooming except in certain limited circumstances. That is not to say
that expert testimony may never be offered; there may be instances where expert
testimony could be admissible and appropriate. Nor does our holding allow
grooming evidence to be offered for any purpose; under Braham, grooming
evidence may not be introduced as profiling evidence, or as circumstantial
evidence of a defendant's guilt. Phelps fails to overcome the first hurdle to prevail
on his PRP.
Even if we were to hold that the prosecutor argued facts in evidence
through his use of the term "grooming," Phelps cannot overcome the second hurdle
of proving any misconduct was flagrant and ill intentioned. We have found
prosecutorial misconduct to be flagrant and ill intentioned in a narrow set of cases
where we were concerned about the jury drawing improper inferences from the
evidence, such as those comments alluding to race or a defendant's membership in
a particular group, or where the prosecutor otherwise comments on the evidence in
17
In re Pers. Restraint ofPhelps, No. 94185-8
an inflammatory manner. See State v. Monday, 171 Wn.2d 667, 257 P.3d 551
(2011); State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174(1988)(holding a
prosecutor committed flagrant and ill-intentioned misconduct by telling the jury
the defendant in a murder trial was '"strong"' with the American Indian Movement
(AIM)and calling AIM a "'deadly group of madmen'" and "'butchers that kill
indiscriminately'"); Glasmann, 175 Wn.2d at 701-02(holding it was flagrant and
ill-intentioned misconduct for a prosecutor to present slides of the defendant's
booking photograph with words like "'GUILTY'" and "'WHY SHOULD YOU
BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?"' superimposed
over the photograph in bold red letters).
For example, in Monday,the prosecutor called attention to the fact that some
of the witnesses were African-American by imitating their pronunciation of words
during direct examination and arguing a "'code'" that said "'black folk don't
testify against black folk'" explained why certain witnesses were reluctant to
testify against the defendant. Monday, 171 Wn.2d at 674. The defendant appealed
based on prosecutorial misconduct because the prosecutor had made an appeal to
racial prejudice to undermine the credibility of witnesses based on their race. The
State argued the evidence against the defendant was overwhelming. However, we
reversed the defendant's conviction, holding the misconduct was flagrant and ill
intentioned because "[t]he notion that [a prosecutor] should seek to achieve a
18
In re Pers. Restraint ofFhelps, No. 94185-8
conviction by resorting to racist arguments is so fundamentally opposed to our
founding principles, values, and fabric of our justice system that it should not need
to be explained." Monday, 171 Wn.2d at 680. The cases establish in what settings
misconduct amounts to inexcusable behavior that compromises the fairness of a
defendant's trial.
Here, even assuming the prosecutor had committed misconduct, the
misconduct did not cross the line into areas of conduct that would have threatened
the fundamental fairness of his trial. The grooming comments did not rise to the
level of being inflammatory, nor did they come close to the level of severity our
precedent suggests is necessary to meet the "flagrant and ill intentioned" standard.
Also, in some cases we have factored in an inquiry whether a jury
instruction could have cured the alleged misconduct. See Emery, 174 Wn.2d at
762-65; State v. Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940(2008). Here,Phelps
has not shown any prejudice incurable by a jury instruction. Closing arguments are
not evidence, and the jury here was given an instruction to that effect. 8 VRP (Apr.
26, 2012) at 1476. Jurors are presumed to follow the court's instructions. State v.
Hopson, 113 Wn.2d 273, 287, 778 P.2d 1014(1989).
Finally, even if we were to find flagrant and ill-intentioned misconduct,
Phelps does not overcome the third hurdle of actual and substantial prejudice
required for him to prevail on his PRP. The Court of Appeals was concerned about
19
In re Pers. Restraint ofPhelps, No. 94185-8
the sufficiency ofthe evidence, but that is not the analysis we engage in to
establish prejudice in the context of a PRP. Glasmann, 175 Wn.2d at 711
("deciding whether reversal is required is not a matter of whether there is sufficient
evidence to justify upholding the verdicts"). The proper inquiry is whether there is
a substantial likelihood the misconduct affected the jury's verdict. Glasmann, 175
Wn.2d at 711 (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432(2003)).
Phelps does not point out where in closing argument the prosecutor's use of
grooming affected the jury's determination ofPhelps's guilt regarding the
substantive crimes. As we have discussed, the prosecutor's use of the term
"grooming" was similar to arguing Phelps had manipulated, controlled, or
influenced A.A. Grooming was not central to proving the elements of the crime.
Instead, the prosecutor used grooming to describe the context ofPhelps's and
A.A.'s relationship and how it evolved leading up to the incident.^ Phelps does not
establish actual and substantial prejudice as a result of the prosecutor's use of
grooming in closing argument.
^ The evidence of how the relationship developed and evolved tended to be more specific
to the aggravating circumstances found by the jury of abuse of trust and particular vulnerability.
20
In re Pers. Restraint ofPhelps, No. 94185-8
We reverse the Court of Appeals and dismiss Phelps's PRP.
WE CONCUR:
^IQV\7.<^
21
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
No. 94185-8
FAIRHURST, C.J.(concurring)—I disagree with the majority on three issues. I
would hold that(1)expert testimony is necessary to introduce grooming evidence,(2)
the prosecutor engaged in misconduct by arguing facts not in evidence, and (3) under
these facts "grooming evidence" constitutes inadmissible profiling evidence because
the prosecutor's arguments implicitly invited the jury to infer guilt based on the
characteristics of known offenders. See State v. Braham, 67 Wn. App. 930, 937, 841
P.2d 785 (1992). Despite my disagreement, I respectfully concur with the majority's
conclusion that reversal is not warranted because Todd Dale Phelps cannot establish a
substantial likelihood that the prosecutor's misconduct affected the jury's verdict.In re
Pers. Restraint of Glasmann, 175 Wn.2d 696, 711, 286 P.3d 673 (2012) (plurality
opinion).
I. ANALYSIS
This court has never addressed the admissibility of expert testimony on
grooming. Prior to this case, only two Court of Appeals opinions addressed this issue.
-1-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
State V. Quigg, 72 Wn. App. 828, 866 P.2d 655 (1994); Braham,61 Wn. App. at 937.
In Quigg, the court held that the prosecutor's witness was qualified as an expert to
testify on grooming because she had over a decade ofrelevant professional experience.
72 Wn. App. at 837. The court declined to address any other issues relating to the
admissibility of expert grooming testimony because the defendant failed to object to
those issues at trial. Id. at 836-37.
In Braham, the Court of Appeals held that expert grooming testimony used as
circumstantial evidence of guilt was improper profiling evidence. 67 Wn. App. at 937.
In that case, Howard Braham was charged with first degree child molestation after
allegedly touching a child who was, along with her mother, living with Braham for
three weeks. Id. at 931. The State indicated during pretrial motions that it intended to
call the director ofresearch for the Harborview Sexual Assault Center to present expert
testimony regarding the '"grooming process.'" Id. at 932. Braham's attorney objected
to this evidence on the grounds that it would be irrelevant and misleading to the jury.
Id. The judge allowed the expert to testify after the prosecutor assured the judge that
the testimony was "'highly relevant'" because Braham and the victim had a "'close
relationship.'" M at 932.
The expert testified generally about the process ofgrooming but did not mention
anything specific about Braham or the victim:
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
"[T]hat . . , clinical term ... has been applied to what we would call a
process of victimization. . . . [W]hat is basically meant by that is that in
most cases where sexual abuse happens, it isn't something that just
happens suddenly out ofthe blue. Generally there is a period oftime where
the person who intends to abuse the child gradually gets the child to feel
more comfortable and may gradually sexualize the relationship or form a
bond with the child so that the child will either not understand that what's
happening to them is wrong or the child will not tell anyone about it after
it happens."
Id. at 933 (alterations in original). The prosecutor referenced the expert testimony
during closing arguments, concluding that the elements of grooming were present
because the evidence showed that Braham had a close relationship with the victim and
that the victim fit the profile of a '"[yjoung, articulate, engaging young girl, needy,
wanting a father figure.'" Id. at 934. The prosecutor went on to assert that Braham's
grooming behavior was circumstantial evidence of his guilt. "'[T]he elements or
characteristics of... grooming ... are substantial circumstantial evidence supporting
the fact that in fact the defendant did sexually touch her on her vagina in that
bedroom.'"Id. at 937(alterations in original). Braham was found guilty offirst degree
child molestation and appealed.
On appeal, Braham argued that the trial court improperly admitted expert
testimony about the grooming process because it was,in fact, profile testimony. "As a
general rule, profile testimony that does nothing more than identify a person as a
member of a group more likely to commit the charged crime is inadmissible owing to
its relative lack of probative value compared to the danger of its unfair prejudice." Id.
-3-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
at 936. The Court of Appeals argued and concluded that the grooming testimony should
have been excluded because it had "virtually no probative value under ER 401" and
was unfairly prejudicial.^ Id. at 938-39. The court explained that grooming testimony
had little probative value because, contrary to what the prosecutor told the trial court,
it was not needed to show that Braham had a greater opportunity to commit the crime:
Indeed, we are unable to conceive of any basis for [the] admission [of
grooming testimony] in this case. Surely, expert opinion is not necessary
to explain that an adult in a "close relationship" with a child will have
greater opportunity to engage in the alleged sexual misconduct. Under the
facts presented here, we see no other value to this evidence.
Id. at 937-38. The court held that the "prosecutor exhorted the jury to infer guilt based
on [the expert's] testimony," id. at 937, and that the testimony was particularly
prejudicial because it establishes the profile ofa typical perpetrator rather than a typical
victim:
The unwarranted implication of guilt is particularly prejudicial
where, as here, the expert testimony establishes a profile of the typical
perpetrator rather than the typical victim. Perpetrator profile testimony
clearly carries with it the implied opinion that the defendant is the sort of
person who would engage in the alleged act, and therefore did it in this
case too.
'The court refrained from holding that such evidence will always be inadmissible, explaining
that expert testimony on grooming may be more probative under different circumstances. For
example, grooming evidence may be admissible if offered as rebuttal evidence after the defense
claims a perpetrator's conduct is inconsistent with those who commit abuse or rape. Braham,67 Wn.
App. at 938. It may also be admissible to explain a victim's behavior, such as delayed reporting. Id.
at 938 n.5.
-4-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
Id. at 939 n.6. The court held that the erroneous admission of grooming evidence could
have affected jury deliberations and reversed and remanded for a new trial. Id. at 940.
In the instant case, the prosecutor used the term "grooming" or "groomed" in
front of the jury more than 30 times without introducing lay or expert testimony.
During voir dire, the prosecutor explicitly introduced the concept of grooming in the
context of rape and child molestation and discussed grooming at length with nine
potential jurors:
[PROSECUTOR]: Now, has anyone here heard in the realm of
sexual assault, rape, child molestation, anything like that, has anyone
heard of the word grooming? Raise your hand, please.
Number 10, grooming, what does that mean to you?
JUROR NO. 10: Grooming,the context I'm thinking ofis grooming
of a victim to be assaulted.
[PROSECUTOR]: Okay. Can you elaborate a little bit for me?
JUROR NO. 10: Well, yeah. Spending time with the child or with
the ~ you know, with the victim, gaining trust of the victim, basically
preparing the victim to make the next move.
[PROSECUTOR]: Okay. Did eveiybody hear that? Anybody not
hear it?
[PROSECUTOR]: Right. Okay. So is that part of the process, the
perpetrator when they're grooming not just the victim but other folks
around the victim maybe? Just what you said ~
JUROR NO.9: Well, I suppose it could be. I don't know.
-5-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
[PROSECUTOR]: Okay. Now,but what about isolating them from
their other friends? Is that something that. .. I'm just throwing these out
here, I mean, if you're not familiar with any ofthese. But please speak up
if you are.
Number 21, is that a ~ if you're grooming someone and you're
trying to gain a trust relationship to groom them, is it possible that you're
going to try to isolate that victim from the other people that victim trusts
in their life?
JUROR NO.21: Yeah.
1 Verbatim Report of Proceedings (VRP) Voir Dire (Apr. 17, 2012) at 113-16
(emphasis added)(last alteration in original).
During the State's redirect of a witness, the prosecutor asked the witness if she
"kn[e]w anything about grooming." 2 VRP (Apr. 18, 2012) at 211. Phelps objected,
arguing relevance. The trial court sustained the objection, stating,"That's an issue that
is for expert testimony. She is not an expert. She's already stated she's not an expert.
So I'm sustaining the objection." Id. Despite this declaration from the judge, the State
proceeded to discuss grooming without introducing any expert testimony on the
grooming process.
In closing, the prosecutor discussed different ways that a perpetrator can groom
a victim and those around a victim. He referenced the discussion in voir dire:
Then we talked about grooming. We talked about the process of
grooming. And some people came up with examples ofhow someone who
is g'ooming is going to be nice. They are going to try to get the trust of
-6-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
someone. They are going to try and isolate that person so that they can do
an act against this person who is being groomed. And it's not just the
person who is being groomed, but it's other people that are around as well
that are being groomed.
8 VRP (Apr. 26, 2012) at 1493 (emphasis added). The prosecutor then proceeded to
tell the jury that Phelps' behavior was "called grooming." Id. at 1549."The iPod texts
deleted, again, by[A.A.]to protect him. So where are we at? So now we're in a position
where [A.A.] has to pay because she tried to protect him. Do you know what this is
called? It's called grooming. And she was groomed well." Id. (emphasis added).^ In
summing up his argument, the prosecutor implied that the case is actually about
grooming:
So why are we here? We're here because ofgrooming, we're here
because of deceit, concealment, half-truths, misrepresentations. And
there's only one adult in this entire case who had control over everything
that happened in this case. One person who had the control and the
authority to control the flow ofinformation and the people involved. And
that's that guy right there.
Id. at 1548 (emphasis added). During rebuttal, the prosecutor argued that grooming
explains why Phelps did not call Child Protective Services(CPS):
As concerned as the defendant was for [A.A.], not one time, we
haven't heard any information that he ever called CPS,that he ever called
law enforcement, nothing. That's how concerned he was. He was
grooming everybody else. Remember, he was the one that was putting out
the severe information that she was going to commit suicide. Everybody
^The prosecutor even claimed,repeatedly,that Phelps was grooming the other adults in A.A.'s
life—hut there is no support in the expert testimony provided in other published cases in Washington
that the concept of grooming applies to anyone other than the victim. See Quigg,72 Wn. App. 828.
-7-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
else was familiar with it. And he was the one telling his family, hey, this
is a real big deal. Think it was played up quite a bit.
Id. at 1591. During closing argument and rebuttal, the prosecutor used the term
"grooming" or "groomed" a total of 26 times and displayed the word "grooming" or
"groomed" on 8 different PowerPoint slides. Id. at 1493-1553, 1580-91 (closing and
rebuttal); Pers. Restraint Pet., App. 1.
The majority suggests that grooming is a concept within the common knowledge
of jurors and argues that grooming evidence need not be introduced through expert
testimony.^ I respectfully disagree. The dictionary defines the verb "groom" as
a : to attend to the cleaning of(as an animal); esp : to maintain the
health and condition of the coat of(as a horse) by brushing, combing,
currying, or similar attention . . . b : to bring about or increase the
acceptability or attractiveness of(as one's physical appearance)esp. by
carefully attending to details of cleanliness and neatness ; freshen up :
spruce up . . . make neat... d : to get into readiness for some specific
objective.
Webster's Third New International Dictionary 1001 (2002).
"Grooming," in the sexual assault context, refers to a calculated pattern of
psychological behaviors used by sex offenders to gain the trust of potential victims
before assaulting them. Marjorie A. Shields, Annotation, Admissibility of Expert
^The majority does not explain what the definition of"grooming" is or whether that definition
is within the common knowledge ofjurors. The majority simply says that "[w]e have never held that
jurors need expert testimony to establish that a defendant manipulated or controlled someone;jurors
can understand these concepts based on common sense and experience." Majority at 15. The majority
goes on to say that "grooming" can he used interchangeably with "manipulating" and suggests that
the concept of"grooming" is related to the concepts of"developing trust" and "isolation." Id.
-8-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
Testimony on Grooming Behavior Involving Sexual Conduct with Child, 13 A.L.R.7th,
Art. 9, §§ 1-2 (2016). The court in Quigg explained that grooming was "a process by
which child molesters gradually introduce their victims to more and more explicit
sexual conduct." Quigg, 72 Wn. App. at 833. The fact that the prosecutor specifically
said that he was interested in discussing grooming'"in the realm ofsexual assault,rape,
[and] child molestation'" strongly suggests that the prosecutor intended to invoke the
psychological, rather than the ordinary, definition of"grooming."In re Pers. Restraint
ofPhelps, 197 Wn. App. 653, 663, 389 P.3d 758 (2017)(quoting 1 VRP Voir Dire at
113).
The majority concludes that the prosecutor did not need to introduce grooming
evidence through an expert witness here because the prosecutor did not use grooming
as a fact in evidence."[The prosecutor] used grooming to paint a picture ofthe evidence
for the jury. Grooming is descriptive of how Phelps's and A.A.'s relationship began,
developed, and expanded and in reality has or adds little value to what the State needed
to prove: that Phelps committed the crimes." Majority at 13. The record suggests that
the prosecutor provided the jury with his own definition of"grooming" and told the
jury that Phelps met that definition. In closing argument he presented the jury with
PowerPoint slides that said, "GROOMING - NICE, TRUST, ISOLATE" and
"GROOMING - NEVER IN THE OPEN," then showed a list of Phelps' behaviors
with the word "GROOMING" in bold at the top. Pers. Restraint Pet., App. 1, at 14,
-9-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
34,81. The prosecutor then proceeded to tell the jury, repeatedly, that Phelps' behavior
constituted grooming:
What is all this stuff that's going on? What is all this physical
contact between a coach and a student athlete? It's grooming', it's okay,
every time I touch you, it's okay, it's okay. Eventually, it becomes the
norm. The grooming isn't in the open, folks. When people groom, they
don't do it so everybody can see. That's not the way it works. It wouldn't
be called grooming. It would be called a crime because he'd be caught all
the time.
8 VRP at 1506-07(emphasis added). "He leans into the seat, and it's dark out, and he
takes his hand and puts it between her legs. Again, grooming. He already knows she's
not going to respond." /J. at 1513(emphasis added)."What I am suggesting is he was
grooming her just like he was grooming everybody else, that these issues are [A.A.'s],
and he's not a bad guy." Id. at 1517-18 (emphasis added). "These are the things that
are going on that she's being told and groomed with throughout their contacts." Id. at
1522 (emphasis added). "She's a prime candidate for grooming, to be manipulated.
And that's exactly what happened in this case." Id. at 1540 (emphasis added). "She
says [A.A.'s] obsessed with her dad. Maybe that might be true. Maybe she was. But
she's being groomed." Id. at 1542(emphasis added).
When the prosecutor gave the jury his own definition of"grooming behavior"
and asserted that Phelps' behavior falls within that definition, the prosecutor was, in
essence, saying that Phelps' behavior is consistent with a specific set of calculated
- 10-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
psychological behaviors. The prosecutor does not get to provide, through argument,
facts not in evidence.
The Court of Appeals correctly determined that "[t]he psychological
complexities in understanding and evaluating the grooming process demand expert
testimony to aid the jury." Phelps, 197 Wn. App at 619.^ Courts in other states and
federal circuits recognize that grooming testimony requires specialized knowledge and
falls within the scope ofER 702, governing the admissibility of expert testimony. See,
e.g.. State v. Berosik,2009 MT 260,352 Mont. 16,23,214 P.3d 776;State v. Sorabella,
111 Conn. 155, 211-14, 891 A.2d 897 (2006); Morris v. State, 361 S.W.3d 649, 659-
62(Tex. Crim. App. 2011);State v. Akins,298 Kan. 592,315 P.3d 868(2014); Shields,
supra, 13 A.L.R.7th, § 4(explaining that expert testimony on grooming has been ruled
admissible by the Third, Fifth, Seventh, Ninth, and Tenth United States Circuit Courts
of Appeals and the courts of 15 different states plus the District of Columbia). Because
grooming testimony requires specialized knowledge and falls within the scope of ER
702,it necessarily falls outside the scope ofER 701,precluding its introduction through
■♦Whether grooming evidence requires expert testimony is an issue of first impression in
Washington, but our case law strongly suggests that evidence of a specific psychological profile is
properly introduced through expert testimony. See, e.g., Quigg, 72 Wn. App. at 837 (holding that an
expert was qualified to testify about the grooming process); State v. Allery, 101 Wn.2d 591, 682 P.2d
312 (1984) (evidence of battered women's syndrome introduced through expert testimony); State v.
Ciskie, 110 Wn.2d 263, 751 P.2d 1165 (1988) (same); State v. Janes, 121 Wn.2d 220, 850 P.2d 495
(1993) (evidence of battered child syndrome introduced through expert testimony).
- 11 -
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
lay testimony. See ER 701. Thus, grooming testimony, if admissible under ER 403,
may only be introduced through an expert witness. See ER 701, 702.
Even when grooming evidence is introduced through expert testimony, the trial
court must be careful to ensure it does not constitute improper profiling evidence. The
majority holds that the State's use of grooming here does not constitute improper
profiling evidence because Braham is factually distinguishable. Specifically, the
majority distinguishes Braham on the grounds that the prosecutor in this case did not
use grooming behavior as circumstantial evidence of the defendant's guilt. I
respectfully disagree. Just like in this case, the prosecutor in Braham charged the
defendant with child molestation—a crime that does not require proof of grooming
behavior. RCW 9A.44.083. And just like in this case, the prosecutor's closing
arguments in Braham focused on characterizing the defendant's actions as grooming:
"[The expert] told you that it is typical in grooming, the offender is
going to have a relationship of some kind with the victim. In this case it
was almost a father-daughter relationship....[A.H.] likes Uncle Craigie.
He is her daddy at a time when she doesn't have her own dad there.. ..
"[T]he elements or characteristics of... grooming that [the expert]
explained to you this morning [are here]."
67 Wn. App. at 934(some alterations in original).
The court in Braham held that the State's grooming arguments were unduly
prejudicial because they implied guilt based on the characteristics ofknown offenders.
- 12-
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
"Expert testimony implying guilt based on the characteristics ofknown offenders is the
sort of testimony deemed unduly prejudicial and therefore inadmissible. This was
exactly how the State used Ms. Berliner's testimony in this case." Id. at 937 (citations
omitted). I think the prosecutor's grooming arguments in this case are just as prejudicial
as the arguments in Braham. By referencing grooming behavior 30 times over the
course of the trial, the prosecutor implicitly invited the jury to associate the defendant
with a group ofpeople more likely to commit the crime.See id. at 939 n.6("Perpetrator
profile testimony clearly carries with it the implied opinion that the defendant is the
sort of person who would engage in the alleged act, and therefore did it in this case
too."). Under these facts, the risk of unfair prejudice associated with the concept of
grooming is substantially outweighed by the probative value of the evidence.^ Thus,
even if the prosecutor had attempted to introduce expert testimony on grooming, that
testimony would be inadmissible under BR 403.
The main difference between this case and Braham is that the prosecutor in this
case did not introduce any expert testimony to establish a foundation for his grooming
arguments. In my view, this error compounds the seriousness of his misconduct—^not
^Grooming evidence is no more probative here than it was in Braham. The eourt in Braham
explained that grooming evidence is irrelevant because it is not necessary to explain that an adult in
a close relationship with a child will have a greater opportunity to engage in sexual misconduet. 67
Wn. App. at 937-38. The same reasoning applies here—grooming evidenee is not necessary to explain
that a Softball coach with a close relationship to a young player will have a greater opportunity for
misconduct. Furthermore, arguing that Phelps was grooming others around A.A. is certainly not
necessary to prove that Phelps was guilty of molesting A.A.
- 13 -
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
only did the prosecutor introduce improper profiling testimony but the prosecutor
introduced it himself without an expert witness. However, because Phelps failed to
object at trial, these errors are waived unless he establishes that the misconduct was so
flagrant and ill intentioned that no instruction could have cured the resulting prejudice.
See Glasmann, 175 Wn.2d at 704. Repeated references to inadmissible and
inflammatory evidence constitute serious misconduct, but in my view, the resulting
prejudice could have been neutralized by a curative instruction. Reluctantly, I agree
with the majority that reversal is unwarranted because Phelps cannot establish a
substantial likelihood that the misconduct affected the jury's verdict. Majority at 20;
Glasmann, 175 Wn.2d at 711.
- 14
In re Pers. Restraint ofPhelps, No. 94185-8
Fairhurst, C.J., concurring
hMM\ , Ci
-15 -
In re Pers. Restraint ofPhelps
No. 94185-8
GonzAlez, J.(concurring)—I fully join the majority but write separately to
discuss the term of art "prosecutorial misconduct." The State makes a convincing
argument for us to stop using "misconduct" to describe mistakes made by
prosecutors because of how harsh the label is and because ofthe consequences for
individual prosecutors who commit error. Mot. for Discr. Review at 13("When
courts use the word 'misconduct' ... it perpetuates a confusion to the general
public that every instance of'prosecutorial misconduct' is the equivalent of
professional misconduct.").
The same observation applies to similarly harsh labels describing the
erroneous conduct ofjudges and criminal defense lawyers. We use equally
unforgiving labels to describe trial judge errors as an "abuse of discretion" and
mistakes by criminal defense lawyers as "ineffective assistance of counsel." We
do not find easily, or take lightly, misconduct, abuses of discretion, or
ineffectiveness.
My worry is that if we replace these terms of art with softer labels, we may
make the findings more often. The labels themselves should give us pause before
reaching such conclusions. While I am open to reconsidering this view, I am not
there yet.
In re Pers. Restraint ofPhelps, No. 94185-8 (Gonzalez, J., concurring)
/