The majority concludes the trial court erred not only by allowing testimony that witnesses feared retaliation but also by allowing the prosecutor to continue a closing argument that relentlessly dwelled on such testimony. I agree the trial court erred; however, I do not agree these errors were "harmless." Such errors went to the heart of the case and the Court of Appeals thus correctly reversed, concluding "Bourgeois did not have a fair trial." State v. Bourgeois, 82 Wn. App. 314, 324,917 P.2d 1101, review granted, 130 Wn.2d 1008, 928 P.2d 412 (1996).
From the outset the State presented its case as one of intimidation and retaliation against the victim as evidenced by ongoing intimidation of the States witnesses. The State opened its case by asking the first witness the *Page 412 first question: "[D]o you want to be here today?" Verbatim Report of Proceedings (RP) at 111 (Mar. 25, 1993). Nearly ever y state witness was asked whether he or she felt intimidated, and at least five indicated they did.3 One witness even elaborated explaining how she had been pushed at a party and threatened for agreeing to testify. The State further aggravated the prejudice by beginning its closing argument:
Ladies and gentlemen of the jury, the essence of this case on which you have heard evidence for approximately three weeks can be distilled to just a few words: deadly retaliation and reasonable fear of more of it. If you doubt whether or not that's an accurate distillation, consider the following: . . . .
. . . .
[Whereupon the prosecutor devoted much of closing argument to cataloging the various witness's current fears of intimidation].
RP at 1322-24 (Apr. 9, 1993) (emphasis added). Indeed, witness intimidation testimony ran throughout the State's case like a main circuit cable, plugged straight into Bourgeois.
The State also used the improper testimony to bolster the credibility of its witnesses. In fact because its key witnesses often had less than ideal recollection of events, the State pressed its point in closing argument that the alleged intimidation was "the whole point" and helped explain why the intimidated witnesses may have appeared "not [to] be as certain as they once were as to everything they had observed." RP at 1325 (Apr. 9, 1993).
The majority concludes the trial court erred in admitting much of this intimidation testimony. Majority at 402. *Page 413 The majority acknowledges that such testimony would impermissibly lead the jury to infer guilt in the present case. Majority at 400 ("In that sense, the testimony would have to be viewed as substantive evidence of the defendants guilt. . . ."). Additionally, as the Court of Appeals pointed out, because credibility had not been attacked, evidence otherwise admissible to bolster witness credibility is inadmissible. Bourgeois,82 Wn. App. at 321 (improper bolstering of witnesses is "at best distracting and at worst, as in the present case, prejudicial.").
The majority claims evidence admitted erroneously may be harmless if it is of minor significance to the overall case. Majority at 403. But this evidence was not minor. It was inflammatory and it pertained to credibility. Credibility was central because this case involved little physical evidence and was essentially a credibility match between the State's witnesses and Bourgeois' alibi witness.
While the evidence against Bourgeois was strong, the defense raised doubts in the State's case and conviction was not a certainty. Bourgeois presented an alibi defense and the identification of Bourgeois was at times problematic. We cannot place ourselves in the jury's shoes by concluding it would still have found defendant guilty beyond a reasonable doubt. See, e.g.,State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946) ("[I]t is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors. The state attempts to safeguard the life and liberty of its citizens by securing to them certain legal rights. These rights should be impartially preserved. They cannot be impartially preserved if the appellate courts make of themselves a second jury and then pass upon the facts."); Bourgeois, 82 Wn. App. at 323-24 ("It is not our function to reweigh the remaining evidence. . . .") (citing Kotteakos v. United States, 328 U.S. 750, 763,66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
Ours is a system where an accused may be convicted only if given a fair trial and found guilty beyond all reasonable *Page 414 doubt as determined by a jury of peers.4 In this case only a jury can say whether it would still convict beyond a reasonable doubt without the erroneous evidence, and a new trial is the only place the jury may speak.
Reconsideration denied December 3, 1997.