(dissenting) — The majority holds that the prosecutor's arguments were misconduct, but that the errors are not reversible. I disagree with its conclusion that reversal is not required. When, as here, a defendant preserves error relating to prosecutorial misconduct, reversal is required if the defendant shows that there was a substantial likelihood the misconduct affected the jury's verdict. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). I believe Barrow has satisfied this burden.
As Barrow points out, this is not a case in which there is abundant evidence of guilt; indeed, no physical evidence linked Barrow to the purported cocaine sale. The absence of any money or marketable quantities of drugs on his person at the time of arrest gave Barrow's mistaken identity defense plausibility. Thus, the primary question for the jury was whether it was satisfied beyond a reasonable doubt that the officers accurately identified Barrow as the seller. The prosecutor's improper arguments turned the jury's attention away from this issue, and instead called for it to decide Barrow's guilt or innocence on the basis of who was lying: Barrow or the officers. Unfortunately, this is not a question a jury is likely to decide in a defendant's favor, particularly when the defendant is a young male arrested at 2nd and Pike with a narcotics pipe in his possession. It is, therefore, all too likely that the improper argument affected the verdict.
*880The prosecutor argues that reversal is not required because Barrow's lawyer provoked the prosecutor's liar arguments. Prosecutorial misconduct does not require reversal if the improper remarks were provoked hy defense counsel and were in reply to defense counsel's statements. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984); State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961). The majority did not reach this issue because it concluded that the misconduct did not deprive Barrow of a fair trial. Because I disagree with the majority's conclusion, I must consider the prosecutor's provocation argument.
Nothing in Barrow's examination of the State's witnesses in any way called the officers' integrity into question. There simply was no provocation occurring during presentation of the State's case. Nevertheless, during her cross examination of Barrow, the prosecutor tried repeatedly, albeit unsuccessfully, to force him to declare that the police witnesses were liars.8 Then, in her first closing argument, the prosecutor returned to the liar theme and repeatedly characterized Barrow's testimony as "calling the officers liars". This initial improper argument clearly was unprovoked.
After the State's argument, Barrow's lawyer did question the reliability of parts of the police officers' testimony. He explained that police officers can be mistaken when they identify a particular person as the individual who committed a crime. Then, in explaining the presumption of innocence and the beyond a reasonable doubt standard, defense counsel argued:
Individuals can be mistakenly charged for crimes. . . . People can be just mistaken. They can be mistaken about the identity of a person. They can be mistaken in exactly what they observed. Sometimes folks can be so emotionally involved in a situation or have an interest because of their job . . . that they can even convince themselves of something that's just not true. And, obviously, also, people can lie.
*881And police officers are no different than anyone else. You are to utilize the same criteria in evaluating their testimony. Police officers can be mistaken. They can be overzealous. They can feel pressures ... to make arrests.
Defense counsel later addressed weaknesses in the State's case, questioning whether the evidence was strong enough to overcome the presumption of innocence:
Start with Officer O'Neal's testimony. . . . Back in March, she would have been an officer for about nine months. She was obviously very frustrated that night because she's been made by some other Hispanics as a police officer. She was made by other black males as a police officer. She's discouraged. She's not doing her job for making buys. . . . And maybe she did buy this bindle from somebody, and maybe when she got up to that observation post she couldn't find that person with those binoculars. And maybe she thinks Floyd Barrow should be in jail because he's hanging around at First and Pike or Second and Pike. But that's not the question. The question is this: Is there sufficient evidence to overcome the presumption of innocence? Have they proven to you beyond a reasonable doubt that Mr. Barrow was the man?
The State contends that these comments provoked its rebuttal argument that in order for the jury to acquit, it had to believe the officers were lying. Although in other circumstances I might find Barrow's argument sufficiently provocative to excuse subsequent improper argument by the State, I would not do so here.
The scope of the provocation rule is limited. It does not excuse remarks that "go beyond a pertinent reply and bring before the jury extraneous matters not in the record, or are so prejudicial that an instruction would not cure them." La Porte, 58 Wn.2d at 822. It also does not excuse an incorrect statement of the law of the case. Davenport, 100 Wn.2d at 760-61 (holding that State's response clearly exceeded scope of defendant's "invitation" and was an incorrect legal statement). Here, the State's rebuttal argument went beyond a simple response to the defense argument quoted above. Instead of replying to that argument, the prosecutor misrepresented the issues, the applicable burden of proof, and the factual bases for an acquittal. Her argument is, therefore, beyond the scope of the provocation rule. In any *882event, it would be incongruous to invoke the provocation rule on behalf of the State, when it was the State's improper cross examination and initial improper closing argument that prompted the allegedly provoking defense argument. For these reasons, I would hold that the provocation rule does not excuse the State's improper rebuttal argument.
This is not a case in which there was abundant evidence of guilt. We cannot properly rule out the likelihood the prosecutor's improper conduct affected the jury's verdict. I would, therefore, reverse.
Judge Robert W. Winsor was a member of the Court of Appeals at the time oral argument was heard on this matter. He is now serving as a judge pro tempore of the court pursuant to CAR 21(c).
Barrow objected to the prosecutor's liar questions. His objections were, for the most part, sustained before Barrow could reply. The one time Barrow did answer, he said that he was not saying Officer O'Neal was lying.