State v. Slater

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MAY 20, 2021
SUPREME COURT, STATE OF WASHINGTON
May 20, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)
STATE OF WASHINGTON, )
) No. 98795-5
Respondent, )
v. ) En Banc
)
SAMUEL DAVID OBERT SLATER, )
) Filed:____________
May 20, 2021
Petitioner.
)
)

WHITENER, J.—After attending multiple court hearings in his case for

violating a domestic violence no contact order (DVNCO), Samuel Slater missed

court the day his case was called for trial (trial call).1 The judge issued a warrant

for his arrest, and Slater came to court to quash the warrant just over one month

later. The State added a charge of bail jumping for his failure to appear (FTA).

Slater moved to sever the charges, alleging that the charges were not cross

1
“Trial call” in Snohomish County is the equivalent of a trial readiness hearing and not the first
day of trial. See Wash. Supreme Court oral argument, State v. Slater, No. 98795-5 (Feb. 16,
2021), at 37 min., 55 sec., video recording by TVW, Washington State’s Public Affairs Network,
http://www.tvw.org (discussing trial call procedure in Snohomish County).
State v. Slater (Samuel David Obert), No. 98795-5

admissible under an ER 403 and ER 404(b) analysis and that trying the charges

together would cause him unfair prejudice and allow for improper propensity

arguments as both charges included violation of a court order. Two different judges

concluded that the FTA was admissible as flight evidence. This allowed the State

to argue the inference that Slater’s FTA for trial call showed that he was conscious

of his guilt on the underlying DVNCO charge. The State capitalized on this

admission and during closing arguments made multiple comments regarding

Slater’s guilt flowing from the FTA. Slater appealed, alleging that the trial court

abused its discretion in not severing the charges as an FTA is not automatically

admissible to infer consciousness of guilt and that the prosecutor committed

misconduct during closing. The Court of Appeals affirmed.

We reverse the Court of Appeals, reverse the convictions, and remand for

the two charges to be severed. Missing one court hearing does not rise to the level

of flight evidence from which one can infer consciousness of guilt on the

underlying crime. The judges in this case abused their discretion when they

repeatedly denied Slater’s motion to sever the charges because the charges are not

cross admissible. Further, although we need not reach this issue, the admission of

the FTA as evidence of consciousness of guilt allowed the prosecutor to capitalize

on the admission and to make improper comments regarding Slater’s alleged guilt

and propensity to violate court orders. This impropriety could not have been cured

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by a jury instruction and the pretrial rulings effectively allowed the improper

arguments during the State’s closing arguments.

FACTS AND PROCEDURAL HISTORY

In 2016, Slater stood outside the window of a woman he had previously

dated and “tr[ied] to . . . get [her] attention . . . by any means,” while there was a

no contact order in place. 1 Verbatim Report of Proceedings (VRP) (Nov. 14, 2018)

at 143-44, 149-50. The State charged Slater with felony violation of a DVNCO

because of the incident.

On September 8, 2017, the case was set for trial call but Slater failed to

appear, and the trial court issued a bench warrant. On October 16, 2017, Slater

appeared in court to quash the warrant. The State subsequently added the charge of

bail jumping for his FTA at trial call.

Slater filed a motion to sever the bail jumping charge from the DVNCO

violation charge. In his motion he alleged that joinder of felony violation of a

DVNCO and bail jumping was prejudicial and that the charges are not cross

admissible under ER 404(b) because it would amount to improper propensity

evidence. The pretrial judge denied the motion, reasoning that the charges were

cross admissible under case law that allowed for a bail jumping charge to be joined

with the underlying charge and, therefore, that prejudice would exist whether the

charges were severed or not. The pretrial judge did not assess cross admissibility

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State v. Slater (Samuel David Obert), No. 98795-5

under the ER 404(b) framework other than mentioning related case law in the “ER

404(b) arena.” VRP (Nov. 9, 2018) at 12.

During motions in limine, Slater renewed his motion to sever the charges

and moved to exclude the FTA as evidence of flight or evidence of consciousness

of guilt. The trial judge denied the renewed motion, reasoning that the probative

value outweighed the prejudice. Slater again renewed the motion at the end of the

state’s case, but the judge again denied the motion.

During his closing argument, the prosecutor made multiple comments that

explicitly referred to Slater’s missed court appearance as evidence that Slater was

guilty. Some of these comments will be recounted in the prosecutorial misconduct

section, infra, so for brevity we do not recount them here. Slater objected to only

one comment.

The jury found Slater guilty of both charges. Slater appealed, alleging that

the trial court abused its discretion in admitting evidence of the FTA as evidence

of consciousness of guilt and erred when it denied his motion to sever. Further,

Slater alleged that the prosecutor committed reversible misconduct during closing

argument. The Court of Appeals disagreed and affirmed the convictions. State v.

Slater, No. 79335-7-I (Wash. Ct. App. June 15, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/793357.pdf. Slater then appealed to this

court, and we granted review. State v. Slater, 196 Wn.2d 1017 (2020).

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The Washington Association of Criminal Defense Lawyers, the American

Civil Liberties Union of Washington, the Washington Defender Association,

Columbia Legal Services, and the King County Department of Public Defense

(WACDL et al.) have filed a joint amicus curiae brief in support of Slater.

ANALYSIS

I. FTA as flight evidence and the motion to sever charges

This court reviews a trial court’s evidentiary rulings and its ruling on a

motion to sever charges for abuse of discretion. State v. Stenson, 132 Wn.2d 668,

701, 940 P.2d 1239 (1997); State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747

(1994). “Discretion is abused when the trial court’s decision is manifestly

unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State

v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).

A. A single FTA is not flight evidence from which to infer
consciousness of guilt
Evidence of flight from which to infer a defendant’s consciousness of guilt

has been admissible evidence since the English common law. See Hickory v. United

States, 160 U.S. 408, 420, 16 S. Ct. 327, 40 L. Ed. 474 (1896). As the old adage

says, “‘The wicked flee when no man pursueth, but the innocent are as bold as a

lion.’” Id. at 416 (quoting the trial court). The United States Supreme Court rejected

this general proposition and has warned for over a century that flight is not limited

to those who are guilty, it also includes some who are innocent. Id. at 421. In doing

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so, the Court opined that instructing the jury that only the guilty conceal a crime

“ignor[ed] the fundamental truth, evolved from the experience of mankind, that the

innocent do often conceal through fear or other emotion.” Id. Therefore, while

flight evidence may be considered by the jury, the court must not instruct the jury

that flight evidence is conclusive proof of guilt. Id. at 422.

In State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965), this court

examined the concept of flight evidence. We opined, “It is an accepted rule that

evidence of the flight of a person, following the commission of a crime, is

admissible and may be considered by the jury as a circumstance, along with other

circumstances of the case, in determining guilt or innocence.” Id. While the manner

or mode of flight may include a range of circumstances,

the circumstance or inference of flight must be substantial and real. It
may not be speculative, conjectural, or fanciful. In other words, the
evidence or circumstances introduced and giving rise to the contention
of flight must be substantial and sufficient to create a reasonable and
substantive inference that the defendant’s departure from the scene of
difficulty was an instinctive or impulsive reaction to a consciousness
of guilt or was a deliberate effort to evade arrest and prosecution.
Pyramiding vague inference upon vague inference will not supplant
the absence of basic facts or circumstances from which the essential
inference of an actual flight must be drawn.

Id. at 112-13 (emphasis added).

When flight evidence is admissible to show an inference of consciousness of

guilt, “it tends to be only marginally probative as to the ultimate issue of guilt or

innocence.” State v. Freeburg, 105 Wn. App. 492, 498, 20 P.3d 984 (2001). The

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Court of Appeals has looked to the Fifth Circuit Court of Appeals’s test for the

probative value of flight evidence in which the Fifth Circuit examines

the degree of confidence with which four inferences can be drawn: (1)
from the defendant’s behavior to flight; (2) from flight to
consciousness of guilt; (3) from consciousness of guilt to
consciousness of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to actual guilt of
the crime charged.

Id. (citing United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)); see also

United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000) (using the same test).

In Bruton, the defendants were stopped by a store detective and accused of

shoplifting, and while the detective went to call the police, the defendants left the

store. 66 Wn.2d at 111-12. Police apprehended them later a few blocks away. Id.

at 112. On appeal, the remaining defendant (one was acquitted at trial) alleged that

the trial court erred in instructing the jury “it could consider, as a circumstance

bearing upon guilt or innocence, whether appellant fled from the scene.” 2 Id. In

reversing, this court held that the defendants’ leaving the scene of the crime was

not evidence of flight because it was mere speculation at the time they were initially

stopped whether they possessed the stolen items in question, and the store detective

left the women alone with his assistant to go back into the store to call police. Id.

2
The Washington Pattern Jury Instructions no longer recommend a jury instruction on evidence
of flight and no such instruction was given in this case. See 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6.21, at 201 (4th ed. 2016).

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at 113. It was, thus, unclear how the defendants left the scene and if they resisted

some effort to stop them. Id. Therefore, any evidence of “flight” was purely

speculative.

While we did not find the evidence in Bruton to rise to the level of flight

evidence sufficient to infer consciousness of guilt, Washington courts have opined

that flight evidence is admissible as evidence of consciousness of guilt in other

cases. Examples include cases in which the defendant flees the scene of the crime,

escapes police contact, travels to a different state, or evades arrest for a significant

period of time, among others. See, e.g., State v. Wilson, 26 Wn.2d 468, 174 P.2d

553 (1946) (flight instruction was proper when, after the murder, the defendant

cleaned the murder weapons, did not contact police though he claimed self-defense,

destroyed his clothing, and went to Idaho for four days); State v. Hebert, 33 Wn.

App. 512, 513, 656 P.2d 1106 (1982) (flight evidence admissible when defendant

“was rapidly apprehended but, during a ‘pat-down’ search, broke away and fled”);

State v. Reed, 25 Wn. App. 46, 50, 604 P.2d 1330 (1979) (unexplained absence

following a murder at defendant’s place of employment and allegedly planning to

escape from jail sufficient to support an inference of flight); State v. Nichols, 5 Wn.

App. 657, 659, 491 P.2d 677 (1971) (flight instruction proper when “shortly after

the robbery and prior to the arrest [police and the victim] spotted the defendant

running along the shoulder of the freeway”); see also State v. Cobb, 22 Wn. App.

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221, 589 P.2d 297 (1978); State v. Jefferson, 11 Wn. App. 566, 524 P.2d 248 (1974)

(discussed in detail below).

It is undoubted that acts of concealment by an accused are
competent to go to the jury as tending to establish guilt, yet they are
not to be considered as alone conclusive, or as creating a legal
presumption of guilt; they are mere circumstances to be considered
and weighed in connection with other proof with that caution and
circumspection which their inconclusiveness when standing alone
require[s].

Hickory, 160 U.S. at 416-17. A trial court when faced with proposed flight evidence

must decide whether or not the alleged evidence amounts to flight that supports a

consciousness of guilt inference. If it does amount to flight evidence that supports

a consciousness of guilt inference, the judge may allow the evidence to be

considered by the jury.

However, in this case we are faced with what may be the most tenuous and

speculative form of alleged flight evidence: the single FTA accompanied by a

motion to quash just over one month later. We hold that evidence of a single FTA

accompanied by a prompt motion to quash the issued warrant is not sufficient

evidence of flight and, therefore, cannot be used as evidence from which to infer

consciousness of guilt on the underlying crime.

The State relies on two Court of Appeals cases for the proposition that an

FTA is admissible as evidence of flight and consciousness of guilt: Jefferson and

Cobb. In Jefferson, the defendant failed to appear on his trial date, and the court

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issued a bench warrant. 11 Wn. App. at 568. Jefferson himself testified that “he

was ‘nervous and was afraid and decided to leave’ and that he went to California

‘to find a house, find work, because [he] had no intention of showing up for this

court.’” Id. The trial court instructed the jury that it could consider flight in

determining guilt or innocence. Id. On appeal, Jefferson contended that it was an

error to equate the FTA with flight. Relying on Bruton, the Court of Appeals

disagreed and found that the flight was properly submitted to the jury. Id. at 571. It

reasoned, “A decision to avoid trial, although not an impulsive reaction, is

nevertheless a circumstance which, if unexplained, might reasonably be considered

to be the act of one who is conscious of his guilt.” Id. at 570 (emphasis added).

Similarly, in Cobb, the Court of Appeals again addressed the admission of

an FTA that resulted in forfeiture of bail and the issuance of a bench warrant. 22

Wn. App. at 224. Cobb failed to appear at trial and was not apprehended until about

one year later. Id. Relying on Jefferson, the Court of Appeals again held that the

FTA for trial is admissible as circumstantial evidence of guilt. Id. at 224-25. The

court declined to limit evidence of flight to that flight intended to avoid immediate

arrest and implied that it would have weighed the explanation of the absence in

determining whether it was in fact evidence of guilt if Cobb had provided one. Id.

at 225.

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The State, and the trial court judges below, treat these factually

distinguishable cases as definitive evidence that a charge of bail jumping premised

on one FTA is admissible evidence of flight that can be admitted as evidence of

consciousness of guilt. However, under Jefferson and Cobb, FTA evidence is not

automatically admissible evidence of flight but, rather,

“[t]he rationale which justifies the admission of evidence of
‘flight’ is that, when unexplained, it is a circumstance which indicates
a reaction to a consciousness of guilt. . . . A decision to avoid trial,
although not an impulsive reaction, is nevertheless a circumstance
which, if unexplained, might reasonably be considered to be the act of
one who is conscious of his guilt.”

Cobb, 22 Wn. App. at 225 (most emphasis added) (quoting Jefferson, 11 Wn. App.

at 570 (citing 29 AM. JUR. 2D Evidence § 280 (1967); 1 CHARLES E. TORCIA,

WHARTON’S CRIMINAL EVIDENCE § 214, at 450 (13th ed. 1972)).

Jefferson and Cobb both contain scenarios that would likely be considered

flight evidence under the Bruton framework. In both cases, there is a reasonable

inference of flight that is more than mere speculation as both defendants missed

trial, and then proceeded to remain hidden from prosecution for an extended period

of time. In contrast, Slater attended all his prior court dates, had a single FTA, and

just over a month later returned to court to quash the warrant. Under Bruton, a

single FTA is speculative evidence of flight. That circumstance coupled with a

prompt warrant quash negates any reasonable inference that the FTA was for the

purpose of avoiding prosecution. Under the circumstances of the present case, the

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FTA is not admissible as flight evidence and, therefore, cannot be used for the

purpose of inferring guilt. 3

In addition, under the Fifth Circuit’s four-part inference framework, first

there must be an inference from the defendant’s behavior to flight. Slater’s

appearance for all of his prior court hearings and the timely quashing of the warrant

certainly negates any reasonable inference that his behavior rises to the level of

flight. The defendant’s behavior of missing court, without more, provides a

speculative inference of flight from prosecution and does not rise to the level of

flight necessary to reach the next step of this framework.

Accordingly, we choose to follow the approach of the Superior Court of

Pennsylvania4 and distinguish between a single FTA, which is not considered flight

evidence, and an FTA accompanied by additional evidence of avoiding

prosecution, which does amount to flight evidence. In Commonwealth v. Babbs,

499 A.2d 1111, 1114 (Pa. Super. Ct. 1985), the defendant appeared in court “on

several occasions” but missed the trial date. However, he “did not flee or conceal

himself . . . and was found shortly thereafter at his known residence.” Id. The

3
In addition, both Jefferson and Cobb predate the adoption of the rules of evidence (adopted in
1979) and, therefore, do not contain any reference to ER 404(b) or ER 403, which govern the
introduction of evidence of prior misconduct. ER 404(b) and ER 403 are discussed in detail in
Section I.C.
4
The Superior Court of Pennsylvania is an intermediate appellate court for the commonwealth.

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State v. Slater (Samuel David Obert), No. 98795-5

defendant had not shown at court because of an argument with his attorney. Id. The

Superior Court of Pennsylvania opined, “A[n FTA] on the day set for trial does not

have the same connotation as pre-arrest flight or concealment and cannot be said

to point unerringly to consciousness of guilt.” Id. at 1113. Further, the defendant’s

circumstances had “no basis for drawing an inference that [his FTA] on the

continued trial date was attributable to a consciousness of guilt.” Id. at 1114.

In contrast, in Commonwealth v. Carter, 597 A.2d 1156, 1160 (Pa. Super.

Ct. 1991), the defendant failed to appear for trial and was not apprehended for an

entire year. Upon his arrest, he also gave police a fake name. Id. The Superior

Court of Pennsylvania specifically distinguished the case from Babbs and

concluded that the evidence was sufficient to conclude that Carter “had fled,

and/or concealed his whereabouts to avoid prosecution.” Id. The court

distinguished the two cases, in the same way that we now distinguish the present

case from Jefferson and Cobb. In the present case the State provided evidence

that Slater missed trial call and, with no additional facts, inferred that his FTA

was flight to flee prosecution that showed consciousness of guilt. This was pure

speculation.

Bail jumping predicated on a single FTA and nothing more is not flight

evidence from which to infer consciousness of guilt on an underlying charge. A

trial court must not automatically allow this type of evidence but must first decide

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whether or not the proposed evidence amounts to a reasonable inference of flight

that is more than mere speculation and supports a consciousness of guilt inference.

Because the evidence here does not, the trial court judges abused their discretion

when they admitted the FTA as flight evidence from which to infer consciousness

of guilt.

B. Other considerations for assessing FTA flight evidence

Not all FTAs are flight evidence and not all flight evidence infers a

consciousness of guilt. There are many innocent reasons people fail to appear for

court, and courts must consider these circumstances. This includes the

disproportionate effect that criminalizing FTAs has on persons of lower

socioeconomic classes and the legislature’s shift away from the criminalization of

FTAs accompanied by motions to quash.

Criminalizing FTAs, and using an FTA to infer consciousness of guilt, fails

to consider a crucial factorwhy people miss court. See Aleksandrea E.

Johnson, Decriminalizing Non-Appearance in Washington State: The Problem and

Solutions for Washington’s Bail Jumping Statute and Court Nonappearance, 18

SEATTLE J. FOR SOC. JUST. 433, 446 (2020). Some of the reasons may include lack

of reliable transportation: competing responsibilities, such as child care or work;

disorganization; and forgetting court dates. Id. at 441-42. Frequently, defendants

miss court because of issues of indigency rather than a desire to disobey the legal

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system. Id. at 466. Although whether to criminalize an FTA is not within the

purview of this court or this case, what follows from these observations is that many

people miss court for reasons unrelated to consciousness of guilt. As WACDL et

al. observe in their amicus brief, “The inference that an FTA shows consciousness

of guilt is frequently unreasonable.” Joint Amicus Curiae Br. of WACDL et al. at

2.

Further, criminalizing FTAs disproportionately impacts indigent people and

people of color. See Johnson, supra, at 442 (“Research . . . suggests that people of

color tend to have higher failure to appear rates.”); see Haley R. Zettler & Robert

G. Morris, An Exploratory Assessment of Race and Gender-Specific Predictors of

Failure to Appear in Court Among Defendants Released via a Pretrial Services

Agency, 40 CRIM. JUST. REV. 417, 426 (2015) (“indigence had a positive,

significant impact on FTA (i.e., indigent defendants were more likely to FTA)”).

In addition, Black and Latinx defendants are more likely to fail to appear than their

white counterparts. See Johnson, supra, at 442 n.43 (citing Zettler & Morris, supra,

at 419 n.38). People miss court for many reasons, not all nefarious.

The bail jumping statute provides “uncontrollable circumstances” as an

affirmative defense. RCW 9A.76.170(2).5 While this somewhat mitigates the use

5
“Uncontrollable circumstance[]” is defined as “an act of nature, such as a flood, earthquake, or
fire, or a medical condition that requires immediate hospitalization or treatment, or an act of a
human being such as an automobile accident or threats of death, forcible sexual attack, or

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of a bail jumping charge predicated on an FTA as evidence of consciousness of

guilt, the defense does not consider the most common reasons why defendants, who

are often indigent, would miss court. While the act of missing court itself may

amount to a violation of the bail jumping statute, it does not, without more, amount

to a reasonable inference of flight or evading prosecution required to show

consciousness of guilt. Using an FTA to infer consciousness of guilt negatively

interprets homelessness, an inability to stay organized, transportation issues, the

choice between coming to court or keeping a job or caring for a child, and other

real-life reasons why one may be unable to attend court on a particular date. In no

other context would these circumstances be construed as a rational inference of

guilt.

The legislature has recognized that a defendant can miss a court date because

of unfortunate, but not “uncontrollable,” circumstances. See LAWS OF 2020, ch. 19

(effective June 11, 2020). The recent amendments to the bail jumping statute,

though not applicable to Slater’s bail jumping charge, require under one prong

proof of the additional element that within 30 days of the issuance of a warrant for

the FTA, the defendant “does not make a motion with the court to quash the

warrant, and if a motion is made under this subsection, he or she does not appear

substantial bodily injury in the immediate future for which there is no time for a complaint to the
authorities and no time or opportunity to resort to the courts.” RCW 9A.76.010(4).

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before the court with respect to the motion.” RCW 9A.76.170(1)(b)(ii)(A). This

change provides more persuasive evidence that an FTA is frequently not indicative

of consciousness of guilt.

C. Motion to sever and cross admissibility

The judges in this case concluded that the facts surrounding Slater’s charge

of bail jumping are flight evidence admissible to prove consciousness of guilt as to

the underlying offense. Because we hold that the FTA in this case is not evidence

of flight, we now examine the motion to sever in light of that change in

circumstance.

A defendant “seeking severance ha[s] the burden of demonstrating that a trial

involving [all] counts would be so manifestly prejudicial as to outweigh the concern

for judicial economy.” State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).

Joinder of offenses carries the potential for prejudice if (1) the defendant may have

to present separate, possibly conflicting, defenses, (2) the jury may infer guilt on

one charge from evidence of another charge, or (3) the cumulative evidence may

lead to a guilty verdict on all charges when, if considered separately, the evidence

would not support every charge. Id. at 718. “Prejudice may result from joinder if

the defendant is embarrassed in the presentation of separate defenses, or if use of a

single trial invites the jury to cumulate evidence to find guilt or infer a criminal

disposition.” Russell, 125 Wn.2d at 62-63.

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In determining whether the potential for prejudice requires severance,
a trial court must consider (1) the strength of the State's evidence on
each count; (2) the clarity of defenses as to each count; (3) court
instructions to the jury to consider each count separately; and (4) the
admissibility of evidence of the other charges even if not joined for
trial.
Id. at 63. Prejudice must also be weighed against the need for judicial economy. Id.

Slater challenges only the fourth factor. This factor considers, under an ER

404(b) analysis, whether evidence of each charge would be cross admissible in the

separate trials as proof of the other if severance were granted. Id. at 66.

Under ER 404(b), “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” However, ER 404(b) permits evidence of prior bad acts for other,

limited purposes. ER 404(b) is read in conjunction with ER 403 which allows a

trial court to exercise its discretion to exclude otherwise relevant evidence “if its

probative value is substantially outweighed by the danger of unfair prejudice.” See

also State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009).

Prior to the admission of misconduct evidence, the court must (1) find
by a preponderance of the evidence the misconduct actually occurred,
(2) identify the purpose of admitting the evidence, (3) determine the
relevance of the evidence to prove an element of the crime, and (4)
weigh the probative value against the prejudicial effect of the
evidence.

Id.

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In the pretrial ruling, the judge went through all four severance factors one

by one on the record. See VRP (Nov. 9, 2018) at 10-13. However, with the cross

admissibility factor, the judge did not engage in an ER 404(b) and ER 403 analysis

to determine whether the charges were cross admissible. The judge indicated that

the case law (Jefferson and Cobb) states that bail jumping is cross admissible for

evidence of guilt. The judge then looked to prejudice and described a case in the

“ER 404(b) arena” that also looked at the prejudice of propensity evidence. Id. at

12. After acknowledging the prejudice in the present case, the judge concluded

“prejudice is going to exist essentially whether it’s severed or not” because the

charges are likely cross admissible. Id. at 13. This discussion of prejudice appears

to be in relation to the prejudice analysis contained within the test for a motion to

sever, but not the additional prejudice analysis under the ER 404(b) and ER 403

test for misconduct evidence. The judge did not determine whether the prejudice of

the bail jumping charge predicated on the FTA in this specific case substantially

outweighed the probative value of the charge as required under ER 404(b) and ER

403. Instead, the judge concluded that the charges likely were cross admissible

without that analysis, and then analyzed the prejudice of severance assuming the

charges were cross admissible.

At trial, Slater had a different judge when he renewed his motion to sever.

He argued that the bail jumping charge was inadmissible under ER 404(b) because

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of the “strong prejudice” caused by not severing the charges. 1 VRP (Nov. 14,

2018) at 29. The judge responded, “Well, I think the test is not prejudice. It’s unfair

prejudice. And in balancing this, I do not believe that there is―that the danger of

unfair prejudice outweighs the probative value. So I will―I don’t find any reason

to disturb Judge Farris’s ruling.” Id. at 29-30. In doing so, the trial judge engaged

in the ER 404(b) and ER 403 balancing of the probative value and the alleged

prejudice of the bail jumping charge that was missing from the pretrial judge’s

determination on cross admissibility. However, even assuming that the trial judge’s

weighing of prejudice and probative value corrected the pretrial judge’s error, both

judges were examining the proposed evidence under the mistaken conclusion that

the FTA and bail jumping charge amounted to flight evidence with the purpose of

inferring consciousness of guilt.

However, as we conclude above, the FTA in the present case does not

amount to flight evidence and cannot be used for the purpose of inferring guilt.

Under the ER 404(b) test, prior to admission of misconduct evidence, the court

must identify the purpose for which the evidence is presented. In the pretrial

motions the purpose was to use the FTA as flight evidence from which to infer

consciousness of guilt. However, because we hold that purpose is not applicable to

the facts of this case, any remaining purpose for the admission of misconduct

evidence would be (as was stated during closing arguments) to show that Slater is

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the type of person who violates court orders, among any other improper and

negative connotations of missing a required court date. This propensity evidence is

explicitly prohibited under ER 404(b). Without a permissible purpose for the

admission of the misconduct evidence, it would not be admissible. Therefore, under

ER 404(b) and ER 403 the evidence of the FTA would not be cross admissible to

prove the DVNCO charge, and therefore, the fourth factor of the severance test is

not met.

A lack of cross admissibility does not automatically mean that the charges

must be severed. See State v. Bluford, 188 Wn.2d 298, 315, 393 P.3d 1219 (2017).

The defendant must still show that the prejudicial effect of trying the charges

together outweighs the need for judicial economy. Id.

In the present case, we hold that the prejudice to the defendant does outweigh

the need for judicial economy. The pretrial judge acknowledged in this case that

both of the charges involve violations of court orders, and therefore there is higher

than normal prejudice in trying these two charges together. But it is important to

note that is the only similarity between the two charges as they are not connected

or related in any way. As to judicial economy, while two trials are certainly more

time and effort than one trial, the witnesses as to each charge in this case were

different. Witnesses would not be tasked with showing up to both trials. Further, as

we held in Bluford, “because the evidence was not cross admissible, the interest in

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judicial economy loses much of its force because the State would not have been

required (or allowed) to call all of its witnesses in each separate trial.” Id. at 315-

16; see also State v. Ramirez, 46 Wn. App. 223, 226, 730 P.2d 98 (1986) (abuse of

discretion when the trial court denied the motion to sever when proof of each crime

was inadmissible to prove the other crime). Here, the need for judicial economy is

outweighed by the prejudice to the defendant because the FTA is not admissible as

to the DVNCO charge, the witnesses for the charges do not overlap, and trying the

charges together presents a risk of improper propensity inferences. Accordingly,

the pretrial and the trial judges abused their discretion when they allowed the FTA

in as flight evidence to infer consciousness of guilt and denied the motions to sever

the charges. We reverse the convictions and remand for separate trials on the two

charges.

II. Prosecutorial misconduct during closing argument

We need not decide whether the prosecutor’s comments were ill intentioned

and amounted to prosecutorial misconduct because these comments were made in

light of the trial court’s rulings and we have already held reversal is required based

on these rulings. However, we address the prosecutor’s conduct to highlight the

problematic commentary of the prosecutor caused by the admission of the FTA to

infer consciousness of guilt evidence.

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Prosecutors have “wide latitude to argue reasonable inferences from the

evidence” to the jury during closing argument. In re Pers. Restraint of Glasmann,

175 Wn.2d 696, 704, 286 P.3d 673 (2012) (plurality opinion). However, the

prosecutor must not refer to evidence that has not been admitted and must not

express a personal opinion on the guilt of the accused. Id. at 705-07. This court

considers the prosecutor’s arguments in the context of the case, the arguments as a

whole, the evidence presented, and the jury instructions. State v. Magers, 164

Wn.2d 174, 192, 189 P.3d 126 (2008) (plurality opinion).

“In order to establish prosecutorial misconduct, a defendant must show ‘that

the prosecutor’s conduct was both improper and prejudicial in the context of the

entire record and the circumstances at trial.’” Id. at 191 (quoting State v.

Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003)). If the defendant objected to

the offending statement at trial, he must establish that the “misconduct resulted in

prejudice that had a substantial likelihood of affecting the jury's verdict.” State v.

Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). However, “failure to object to

an improper remark constitutes a waiver of error unless the remark is so flagrant

and ill intentioned that it causes an enduring and resulting prejudice that could not

have been neutralized by an admonition to the jury.” Russell, 125 Wn.2d at 86.

“When evaluating whether misconduct is flagrant and ill intentioned, we ‘focus

less on whether the prosecutor's misconduct was flagrant or ill intentioned

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and more on whether the resulting prejudice could have been cured.’” In re Pers.

Restraint of Phelps, 190 Wn.2d 155, 165-66, 410 P.3d 1142 (2018) (quoting Emery,

174 Wn.2d at 762).

Slater alleges that the prosecutor committed misconduct during closing

argument and rebuttal. Slater argues that the prosecutor’s comments in this case

fall into three general areas. First, “instructing the jury that Mr. Slater was guilty.”

Suppl. Br. of Pet’r at 16. This included making comments such as “If he didn’t do

it, why didn’t he show up for trial call a year ago? Why didn’t he show? . . . The

day that we find out whether this case is going out or not, he’s gone. If he didn’t do

it, why didn’t he show?” 2 VRP (Nov. 15, 2018) at 215-16; see also id. at 219 (“He

didn’t show, because he got cold feet. He didn’t show . . . because he didn’t want

to be there.”), 220 (“If he didn’t do it, why didn’t he show? . . . He just didn’t show

on the day that mattered, because he’s guilty.”), 231 (“He didn’t show because he

didn’t want to face the facts.”), 236 (“He didn’t show because he was there on

August 6th and that’s why he’s guilty and I’m asking you to find him so on both.”).

Slater objected only to the “cold feet” comment, to which the judge stated, “I’ll just

note it’s argument.” Id. at 219.

Second, Slater contends the prosecutor “argu[ed] an impermissible inference

from the evidence.” Suppl. Br. of Pet’r at 16. This included an impermissible

propensity argument, that Slater is one to sign court documents and not adhere to

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them. See 2 VRP (Nov. 15, 2018) at 222 (“[Y]ou don’t sign documents if you’re

not going to adhere to them. And if you do, you do so at your own peril whether it

be a no-contact order, an omnibus order or your conditions of release. This man is

guilty of both crimes.”).

And third, Slater argues the prosecutor was “appealing to the jury’s passion

to secure a conviction based on emotion, while also skirting the areas of burden-

shifting and denigrating defense counsel’s argument.” Suppl. Br. of Pet’r at 16.

This included comments such as “There’s no evidence that he mistook his date.

There’s no evidence that the court was notified he wasn’t going to be able to make

it.” 2 VRP (Nov. 15, 2018) at 220; see also id. at 222 (“He’s banking on the fact

nobody else saw it and he’s banking on the fact you’re not going to take into

consideration he didn’t show for the second time. Don’t give it to him.”), 231

(“Man, if my case was that weak, I think I’d show up for trial call. I think I’d be

there if there were all those contradictions. I think I’d get this thing out of the way

and move on with my life. I’d show up. He didn’t.”), 235 (“If this case was as weak

as defense counsel says it is, I would have showed up on September 8th.”).

In Glasmann, this court held that the prosecutor committed misconduct when

“[d]uring closing argument, the prosecuting attorney made an electronic

presentation to the jury that graphically displayed his personal opinion that

Glasmann was ‘guilty, guilty, guilty’ of the crimes charged by the State.” 175

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Wn.2d at 699. The court further held that the repeated use of this imagery

throughout closing “was so pervasive that it could not have been cured by an

instruction.” Id. at 707. The court found the prosecutor’s misconduct was flagrant

and ill intentioned, and that the cumulative effect of the improper comments and

imagery did meet the high bar of being so flagrant and ill intentioned that it required

reversal. Id.

The Court of Appeals, in comparing Glasmann with the present case,

concluded that the prosecutor’s comments were not improper because the

comments on Slater’s guilt “were offered in the context of the prosecutor’s

discussion of flight and consciousness of guilt.” Slater, No. 79335-7-I, slip op. at

12-13. Further, it reasoned that “a timely objection would have allowed for an

instruction that would have cured any prejudice.” Id. at 13.

The Court of Appeals is incorrect. Slater correctly contends, “The

misconduct here stemmed directly from the court’s errors in admitting Mr. Slater’s

missed court date as evidence of consciousness of guilt and denying the severance

motion.” Suppl. Br. of Pet’r at 16. The court’s erroneous ruling gave the prosecutor

permission to repeatedly emphasize the FTA and to improperly equate the FTA

with consciousness of guilt. The repeated focus on Slater’s guilt and propensity to

violate court orders highlighted the exact prejudice that Slater argued in his motion

to sever. This is akin to the inflammatory comments presented in Glasmann.

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State v. Slater (Samuel David Obert), No. 98795-5

Similarly, it is unlikely that an instruction to the jury would have cured this

line of argument because when Slater did object, the judge stated, “I’ll just note it’s

argument.” 2 VRP (Nov. 15, 2018) at 219. The trial judge’s comment did not and

could not cure the impropriety of the prosecutor’s argument.

CONCLUSION

We reverse the Court of Appeals and hold that the FTA was not flight

evidence and, therefore, should not have been admitted for the purpose of inferring

consciousness of guilt. Accordingly, the trial court erred when it denied the motion

to sever as the charges would not be cross admissible under an ER 404(b) and ER

403 analysis, and the prejudice to Slater outweighed any judicial economy. Further,

failing to sever the charges allowed the prosecutor to make otherwise improper

comments regarding the FTA as consciousness of guilt during closing arguments.

We reverse and remand for separate trials.

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WE CONCUR.

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