¶59 (dissenting) — One morning in February 2005, Dr. James Classen stabbed his estranged wife, Eveann, about 100 times with a pair of sewing scissors. Thereafter, the State charged Classen with first degree premeditated murder. Classen admitted to stabbing Eveann, but he argued that because he suffered from bipolar disorder, a recognized mental disease or defect, his mental condition reduced his criminal culpability from premeditated first degree murder to manslaughter. After a 17-day trial, the jury found Classen guilty of first degree premeditated murder.
Quinn-Brintnall, J.¶60 Classen claims three errors deprived him of a fair trial: (1) the trial court refused to allow him to fully cross-examine Dr. Barry Ward, who testified that Classen did not suffer from bipolar disorder and had the requisite mental capacity to commit first degree murder; (2) the trial court improperly allowed jail personnel to relate Classen’s behavior during the 14 months he was incarcerated awaiting trial; and (3) during closing argument, the deputy prosecutor misrepresented the law by improperly characterizing manslaughter as an accidental crime. While I agree with the majority that the record is sufficient to allow *66Classen to raise these issues, I believe the record is insufficient to conclude that any error was harmless. Accordingly, I respectfully dissent.
¶61 First, the record does not allow a full and fair review of whether the trial court erred when it limited Classen’s cross-examination of Dr. Ward. Classen’s defense counsel sought to impeach Ward’s rebuttal testimony with inconsistent statements he allegedly made to Classen’s son, Maurice, a deputy prosecutor in another county. In response to the State’s motion in limine to exclude the alleged statements, Classen’s defense counsel explained,
What I believe [Ward] said to Maurice Classen runs contrary to the opinions he’s gonna offer this jury, where he said he believes this is more appropriately a murder two, which in shorthand is his way of telling someone that he thinks there’s grave questions about whether he had the capacity to premeditate.
7-A Report of Proceedings (RP) at 609 (emphasis added). Classen’s counsel further argued, “[F]or [Ward] to say it’s more appropriately Murder in the Second Degree is his way of saying that I believe that there’s serious questions about his ability to premeditate. That’s the only thing he could have meant in context.” 7-A RP at 611 (emphasis added). Unable to determine whether Dr. Ward was stating his opinion regarding an appropriate charging policy or, as defense counsel contended, using shorthand with regard to Classen’s mental state, the trial court reserved its ruling on admissibility until it could review the phrasing of the parties’ questions and the witnesses’ answers at trial.14
*67¶62 Unfortunately, the record as presented does not facilitate a review of the trial court’s ruling with respect to the admissibility of the alleged statements. A significant portion of Dr. Ward’s testimony, including the State’s direct examination, is missing. While a partial, reconstructed record did include a portion of the defense offer of proof, Ward both denied making the “murder two” statement to Maurice Classen and acknowledged that, from such a statement, one could infer the speaker questioned the defendant’s capacity to premeditate.15
¶63 Although parties may agree to present a narrative report of the trial proceedings sufficient to permit appellate review in lieu of a transcript,16 there is little precedent supporting the idea that the court may direct them to do so. Moreover, the parties did not agree here. Classen’s defense counsel clearly stated that, despite their best efforts, they could not attest to the accuracy or completeness of the narrative report. Given that the trial court was unable to resolve the critical issue of the intended meaning of Dr. Ward’s “murder two” reference without reviewing the phrasing of the parties’ questions and the witnesses’ answers, and given that the portions of the record on this critical issue do not contain this necessary information, I cannot say that the record is sufficiently complete to establish that Ward was making a charging policy comment and *68not speaking in shorthand as Classen’s defense counsel argued. Ward denied making the statement, but he acknowledged that such a statement, if made, called into question the elements of first degree murder and, in this context, the particular element of premeditation. Accordingly, the record is insufficient to allow a full and fair review of this issue and insufficient for me to confidently declare that Classen received a fair trial.17
¶64 Second, although I agree with the majority that the jail guards’ testimony regarding Classen’s behavior while in custody pending trial is relevant evidence, presenting this evidence could be more prejudicial than probative if the questioners or the witnesses placed undue emphasis on the fact that they observed Classen’s behavior while he was in custody, unable to make bail, and awaiting trial. This area of inquiry is a particularly delicate one, and the trial court must carefully examine the precise phrasing of questions and answers. Unfortunately, the verbatim record did not preserve the jail guards’ testimony for review.
¶65 Additionally, the narrative report of proceedings demonstrates that the witnesses placed significant emphasis on the jail setting:
The State called Chris Anderson on April 19, 2006. This witness testified from 5:03 pm to 5:14 pm. Mr. Anderson testified to the following:
Mr. Anderson is employed as a custody officer in the Clark County jail. Anderson was the officer assigned to the jail pod in which [Classen] was housed for ten months in the year 2005. Officer Anderson worked a day shift in the jail during that time. Each day during the ten month period Anderson was assigned to the pod in which [Classen] was housed, [Classen] entered the day room from 8:00AM to 11:30AM. When [Classen] was in the *69day room, there were generally nine inmates in the day room including [Classen]. When [Classen] was in the day room, he was twelve to fourteen feet away from Anderson. Anderson could hear [Classen] speak if Anderson keyed his microphone in his area. Anderson keyed his microphone often. Anderson’s desk faces the day room area. When [Classen] was not in the day room, Anderson could not see [Classen] any better than he could see the other inmates in the pod. Inmates are housed in cells 360 degrees around Anderson’s desk. Anderson never observed [Classen] acting out, having problems with other inmates, or having any type of behavioral problems of any sort during the ten month period he was in the same pod with [Classen].
2 Clerk’s Papers (CP) at 234-35.
The State called Mr. Ashworth on April 19, 2006. Mr. Ashworth testified from 5:14PM to 5:19PM. Mr. Ashworth testified to the following:
Mr. Ashworth is employed as a custody officer at the Clark County Jail. When [Classen] was initially incarcerated after his arrest in this case, he was placed in suicide watch at the jail. [Classen] remained in the suicide watch area for less than one week. Mr. Ashworth was one of the guards in the suicide watch area for two of the days that [Classen] was in the suicide watch area. There were a total of eight inmates in the suicide watch area when Ashworth was in that part of the jail with [Classen]. Ashworth’s job was to watch the eight inmates closely during that time. Ashworth worked twelve hour shifts for the two days he was in the suicide watch area with [Classen]. Ashworth did not observe [Classen] exhibit any type of behavioral problems of any sort during the time he observed [Classen] in the suicide watch area of the jail.
Mr. Ashworth was assigned to the pod in the jail where [Classen] was housed for the last month prior to the trial in this matter. This is the same pod officer Anderson was assigned to for ten months in the year 2005. Ashworth did not observe [Classen] have any type of behavioral problems while he was assigned to the pod in which [Classen] was housed.
*702 CP at 235-36.
The State called Victoria McKenzie on April 19, 2006. Ms. McKenzie testified from 5:20PM to 5:22 PM. Ms. McKenzie testified to the following:
Mrs. McKenzie is a sergeant in the Clark County jail. Sergeant McKenzie explained inmates receive infractions in the jail if they have behavior problems. She stated inmates receive minor infractions for behavior such as saving food at meals or not making their beds, and they receive major infractions for behavior such as fighting. Sergeant McKenzie testified that during the fourteen months [Classen] was in custody pending trial in this matter, he received no infractions.
2 CP at 236.
¶66 I agree that Sergeant McKenzie’s, as well as other jail guards’, personal observations of Classen’s behavior and interactions during the preceding 14 months may have been relevant evidence of his state of mind. But it appears that McKenzie was testifying to jail infraction records as if under the business records exception to the hearsay rule.18 I question the relevance of such lack of infraction testimony. ER 401. Even if relevant, the agreed report of proceedings does not contain sufficient foundation to establish admissibility under the business records exception to the hearsay rule. See ch. 5.45 RCW; see also State v. Hopkins, 134 Wn. App. 780, 789, 142 P.3d 1104 (2006) (holding the State is not excused from establishing the prerequisites for the business records exception to apply), review denied, 160 Wn.2d 1020 (2007).
¶67 Here, we have only an uncorroborated narrative report of proceedings that Classen’s defense counsel was unable to attest is sufficiently accurate or complete. Based on this deficient record, I cannot say that the jail guards’ testimony did not unduly emphasize the prejudicial fact of *71Classen’s incarceration. To the contrary, in my opinion, Sergeant McKenzie’s testimony was based entirely on the fact of his incarceration and, thus, was improper.
¶68 Third, although I disagree with the majority’s analysis regarding the deputy prosecutor’s characterization of manslaughter as an accident, I do agree that defense counsel’s failure to object may preclude appellate review. See State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). But in light of the nature of Classen’s defense, I believe that characterizing manslaughter as an accident is misleading and improper. A defendant who claims that he did not intentionally do an act that resulted in the death of another may be arguing he acted negligently or recklessly and without intent to kill. In such circumstances, referring to manslaughter as an unintentional or accidental killing is neither misleading nor improper. But the analysis differs where, as here, a defendant claims that his physical conduct may have been intentional (stabbing 100 times), but that he lacked the capacity to act intentionally or premeditate an intent to kill because he suffers from a mental disease or defect. In such cases, the law directs that a jury may find him guilty of a lesser charge. See State v. Bottrell, 103 Wn. App. 706, 712, 14 P.3d 164 (2000), review denied, 143 Wn.2d 1020 (2001); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.20, at 224 (2d ed. 1994). When the defendant raises a legal defense of diminished capacity, it is misleading for a deputy prosecutor to argue to the jury that it must be able to characterize the victim’s death as an accident in order to find that the defendant committed only the lesser charge of manslaughter. Because that is the gist of the deputy prosecutor’s argument, I believe it was improper.
¶69 Because the record in this case is insufficient to analyze fully the errors alleged and their impact on the jury’s verdict, in my view due process requires that Classen receive a new trial. Therefore, I respectfully dissent.
Review denied at 164 Wn.2d 1016 (2008).
*72APPENDIX
¶70 Many parts of the record in this case (and many other cases in which transcripts are prepared from electronically recorded proceedings) are less than satisfactory. Sometimes defective microphones cause the deficiencies:
The Court: Second item is the problem with the microphone at counsel table, at the Defense microphone. I’ve asked the attorneys to speak up. I’ve just left our court administrator’s office and he assures me that [Jefferson Audio Video Systems, Inc.,] will be here at noon and hopefully will solve our problem for us.
I am monitoring from up here the sound levels, as is Rhonda back in chambers area. That’s my judicial assistant. We will inform you if there is a problem. Or we’ll do our best to inform you if there’s a problem. I just remind you if you could speak up. Certainly if you wish to approach the — to get to another microphone or you have — are at liberty to do that.
6 RP at 383-84. The record here also contains discussions about the microphone not picking up defense counsel, who practices in a county where the courts use live reporters and is accustomed to being told when he cannot be heard.
¶71 In addition, deficiencies occurred because background noise interferes with the recording:
The Court: (Pause; reviewing exhibits.)
[Defense Counsel]: (Counsel making inaudible comments while the Court is flipping photographs against microphone) - we’re not objecting, Your Honor, to the hand photos —
4 RP at 249. And deficiencies occurred, most frequently, by the court and parties rudely talking over one another at the same time.
The Court: Is that what you’re gonna offer, a statement of that type, where the doctor passes judgment on the law?
[Defense Counsel]: Your Honor, that’s a tricky — I — I have to tell you that’s a tricky piece. I — the fact is it’s kind of unique fact pattern. You know, Dr. Ward presented his opinion, his expert opinion that there — that — that Dr. Classen had the capacity to do both.
And then while interviewing Maurice Classen for his — to finish his evaluation, and Maurice was at his desk taking notes at the time, you know, he basically makes a statement that would certainly sound like he really doesn’t think that Dr. Classen would have the capacity to premeditate.
And that’s the essence of what he’s saying if he’s saying it should have been a murder two and not a murder one.
So I think that the —
*73The Court: Is that what he — is that the verbiage that he’s supposed to have said, it should have —
[Defense Counsel]: Essentially that is —
The Court: - been (inaudible).
[Defense Counsel]: — what he said, Your Honor.
The Court: Well, I’m gonna — I’m gonna give you a knee-jerk reaction, gentlemen. I’m gonna let you brief it, okay, I’m gonna let you both brief it.
My first reaction is, okay, what’s his expertise to pass judgment on a legal?
[Defense Counsel]: Your Honor —
The Court: Okay?
[Defense Counsel]: — it was a — I apologize to the Court. Matter of fact, Mr. Maybrown just hit me and sort of reminded me. I just didn’t get a chance.
The Court: That’s right, he was a lawyer, wasn’t he?
[Defense Counsel]: Nine years.
The Court: Okay.
[Defense Counsel]: And —
The Court: Second problem.
[Defense Counsel]: Yep.
The Court: Passing on —
[Defense Counsel]: Yep.
The Court: — the ultimate conclusion, which is the question for the jury. I’m just giving you a heads-up of one of those things -
[Defense Counsel]: (Inaudible.)
The Court: — that my knee-jerk reaction is telling me, there’s something a little uncomfortable there, and I’m giving you that out of the box, you’re gonna have to work on briefing to convince me —
[Prosecutor]: I could call lawyers that would say it’s a first degree.
[Defense Counsel]: Your Honor —
The Court: I don’t want to get into that.
[Prosecutor]: So just what I’m saying, it’s -
The Court: I don’t want to —
[Prosecutor]: — (inaudible; voices overlapping) — a question of law —
The Court: Yeah.
[Prosecutor]: — (inaudible) for a witness.
[Defense Counsel]: Your Honor, the tricky part of this is, I — I just -just, again, to mention to the Court and for [the prosecutor’s] benefit, I guess, for the purposes of briefing, is that, you know, the suggestion here would not be that it is, you know, that he’s making a statement *74which was - is within the obvious realm of - of the jury conclusion, but rather that he’s making a - a statement based on his role as the evaluating psychologist.
The Court: It’s the use of the phrase murder one and murder two.
[Defense Counsel]: It’s the capacity to ~
The Court: Which —
[Defense Counsel]: — premeditate. That’s the tricky part.
The Court: Well, if you keep your questioning within bounds of what his profession is now -
[Defense Counsel]: Right, right. Right.
The Court: — okay and —
[Defense Counsel]: Right.
The Court: ~ why he reached the conclusions he reached, that’s fine, because you - if you’re offering that to impeach, what are you impeaching? Okay. You’re impeaching the State’s case, not a witness, okay, and you’re asking for an ultimate conclusion. Those are the two problems [sic] areas I see coming out of the box.
And I’m just pointing out what I see —
[Defense Counsel]: I understand —
The Court: - not ruling, I’m just saying those are the things I see as potential problems with the Defense raising this issue.
I would prefer to have it briefed.
[Defense Counsel]: Oh, it will, Your Honor, and I think that was —
The Court: (Inaudible; voices overlapping.)
[Defense Counsel]: — (inaudible; voices overlapping) —
The Court: And, Mr. Maybrown, it is my custom and practice to give heads-up. This is what I’m thinking knee-jerk, now go convince me of something else. Okay. I did it to you once already, and now this is the second time, I just want to do it — make sure you were clear on that.
3 RP at 195-200.
¶72 These deficiencies make transcripts of the electronically recorded proceedings difficult to read. This author sometimes must color code the speakers in order to complete the speaker’s intended sentence. The overlapping voices also increase the litigant’s transcription costs by increasing the number of pages transcribed. Each time a new voice enters the fray, the reporter transcribes a new line, even if it is only to add a single word or to indicate that the record is inaudible at that point.
The trial court explained its reasoning as follows:
The Court: I’ll give you initial reaction, gentlemen, without argument, is that a lot of these questions will turn on the manner in which you ask witnesses questions.
For instance, Mr. Maybrown, when you’re talking about Dr. Ward, you know, if Dr. Ward offers an opinion about the state of mind of the defendant which in some way is contrary to a — a lesser included, murder one, murder two, that might be something that you could probe on cross-examination.
*67But to come out as a straight-up impeachment that you reached this conclusion but you said this other thing on a legal conclusion, I think you’re gonna be a little bit tougher on that road.
So I — the problem I’m facing is a lot of the questions that you have raised with me in these motions really will turn on how you —■ you do direct and cross-examination of these various witnesses.
7-A BP at 605-06.
Classen’s defense counsel asked Dr. Ward, “During the course of that conversation, do you recall telling Maurice Classen that the more appropriate charge in this case was murder two rather than murder one?” 9-B BP at 842. Ward answered, “I do not.” 9-B BP at 842. Again, Classen’s defense counsel asked Ward, “Okay. So hypothetically if, in fact, it was reported that you said that, the meaning would be that a question about the capacity to premeditate; true?” 9-B BP at 844. Ward answered, “I — you could infer that.” 9-B BP at 844.
See BAP 9.3, 9.4.
Although the technological failure of the recording equipment is by far the greatest impediment to a record sufficient for review in this case, it is not the only one. See App., infra.
See ER 803(a)(6), (7).