State Of Washington, V. William Earl Talbott, Ii

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 80334-4-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
WILLIAM EARL TALBOTT II,

Appellant.

HAZELRIGG, A.C.J. — William Earl Talbott II appealed from a guilty verdict

on two counts of aggravated murder in the first degree, asserting numerous

evidentiary and constitutional errors. On remand from the Supreme Court, we hold

that Talbott fails to demonstrate a basis for reversal and affirm his convictions.

However, we remand for the trial court to strike the erroneous firearm

enhancement on Talbott’s judgment and sentence.

FACTS

This case comes to us on remand from our Supreme Court. State v. Talbott

(Talbott II), 200 Wn.2d 731, 733, 521 P.3d 948 (2022). The underlying facts are

set out in detail in this court’s unpublished opinion and only briefly summarized

here. See State v. Talbott (Talbott I), No. 80334-4-I, slip op. at 1-3 (Wash. Ct. App.

Dec. 6, 2021) (unpublished) https://www.courts.wa.gov/opinions/pdf/803344.pdf.

In November 1987, the bodies of Jay Cook and Tanya Van Cuylenborg were found

in rural Snohomish and Skagit counties, respectively. Id. at 2. A DNA profile was
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developed from semen collected from Van Cuylenborg’s pants and vaginal swab;

this profile was matched to Talbott through genealogy mapping nearly three

decades later. Id. at 2-3. After a jury trial, Talbott was found guilty of two counts

of aggravated murder in the first degree. Id. at 3. Talbott appealed, and this court

reversed, holding that the seating of a juror who expressed actual bias

necessitated reversal. Id. at 12-13. The State of Washington petitioned for review

by our State Supreme Court, which was granted. Talbott II, 200 Wn.2d at 737.

The Supreme Court reversed and held that “Talbott is not entitled to have his for-

cause challenge to juror 40 considered on appeal” because he “did not attempt to

strike juror 40 with an available peremptory challenge, he did not exhaust his

peremptory challenges on other jurors, and he affirmatively accepted the jury panel

as presented.” Id. at 748. The Supreme Court reversed and remanded to this

court “to address the claims it did not reach in its prior opinion.” Id. We reach

those issues here.

ANALYSIS

I. Sufficiency of Evidence

Under the due process clause of the federal constitution, the State must

prove every element of a crime beyond a reasonable doubt. State v. Chacon, 192

Wn.2d 545, 549, 431 P.3d 477 (2018) (citing U.S. CONST. amend. XIV). When

analyzing whether evidence is sufficient to uphold a jury’s verdict, this court applies

a deferential standard of review. In re Pers. Restraint of Martinez, 171 Wn.2d 354,

364, 256 P.3d 277 (2011). We view “the evidence in the light most favorable to

the State,” to determine whether “any rational trier of fact could have found guilt

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beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). “[A]ll reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the defendant.” Id. We defer to

the jury to make determinations on the credibility of witnesses, resolve conflicting

evidence, and evaluate the persuasiveness of the evidence. State v. Francisco,

148 Wn. App. 168, 175, 199 P.3d 478 (2009). Both direct and circumstantial

evidence may be considered to support the jury’s verdict and “[a] trier of fact may

rely exclusively upon circumstantial evidence to support its decision.” State v.

Jackson, 145 Wn. App. 814, 818, 187 P.3d 321 (2008).

Here, Talbott was convicted of two counts of aggravated murder, one count

for Van Cuylenborg and a second for Cook. The State was required to prove the

following elements:

(1) That on or about the 18th day of November, 1987, through the
24th[1] day of November, 1987, the defendant acted with intent to
cause the death of [Van Cuylenborg and Cook];
(2) That the intent to cause the death was premeditated;
(3) That [Van Cuylenborg and Cook] died as a result of the
defendant’s acts; and
(4) That any of these acts occurred in the State of Washington.

In addition to finding these elements were met, the jury found the following

aggravating circumstances:

a. There was more than one person murdered and the murders
were part of a common scheme or plan or the result of a single
act of the person; or

b. The murder was committed in the course of, in furtherance of, or
in immediate flight from robbery in the first degree or second
degree, rape in the first or second degree, or kidnapping in the
first degree.

1 The date range charged by the State as to Cook’s murder was set out in the charging

document and jury instructions as on or about November 18 through 26.

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Talbott asserts the State failed to prove that he caused the deaths of Van

Cuylenborg and Cook beyond a reasonable doubt. He concedes that he had

sexual contact with Van Cuylenborg and made physical contact with the van the

couple was driving, as demonstrated by the presence of his DNA on Van

Cuylenborg’s pants and body and his palm print found on the van’s back window,

but he argues this evidence is insufficient to meet the State’s burden of proof as to

the aggravated murder of both victims.

At trial, much of the State’s case rested upon circumstantial evidence. First,

the State relied on the particulars of Van Cuylenborg and Cook’s trip to

Washington. The couple left their homes in Victoria, B.C., on November 18 to

retrieve furnace parts for Cook’s father. They planned to drive to Seattle, sleep in

the van overnight, purchase the parts from Gensco Inc. the next morning, and then

return home to Victoria later that day, November 19. The pair took the ferry from

Victoria to Port Angeles. They were seen together in two different locations as

they made their way to the Bremerton ferry terminal, where they arrived at around

10:00 p.m. on November 18. Van Cuylenborg and Cook were unfamiliar with the

area; they got lost on their way to the Bremerton ferry and were redirected by a

store clerk in Hoodsport. Van Cuylenborg’s and Cook’s bodies were found in

separate counties, each in a remote area, while their van was located in a third

county.

Second, the State relied on the condition of the bodies when they were

found. When Van Cuylenborg’s body was discovered, she was nude from the

waist down, wearing socks but no shoes, with her bra pushed above her breasts.

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She had been shot in the back of the head, suffering “a very close contact wound.”

The medical examiner determined Cook’s cause of death was asphyxia due to

ligature strangulation. Officers found zip ties connected together at each location

where Van Cuylenborg and Cook’s bodies were found, as well as in the van,

though neither of the victims appeared to have been bound by zip ties or any other

item.

Third, the State relied on Talbott’s familiarity with the general area where

Cook’s body was found. Talbott had previously lived seven miles from the scene

and had spent time with a friend photographing the area near the Skykomish River

and Monroe Correctional Complex (a state prison), several miles from the location

where Cook’s body was found.

Talbott correctly identifies conflicting evidence and gaps in the State’s case.

The only physical injury identified as to Van Cuylenborg was the gunshot wound;

there was no evidence presented of vaginal trauma or ligature marks indicating

she had been bound. Talbott also notes that there was no testimony that Van

Cuylenborg would not have consented to sexual activity and there was an

unidentified non-sperm DNA profile resulting from the vaginal swab “indicat[ing] a

third person there.” Van Cuylenborg was killed by a gunshot wound and Cook was

strangled with a dog collar and found with a pack of cigarettes shoved down his

throat; Talbott was never known to possess firearms, smoke cigarettes, or own a

dog.

Throughout trial and on appeal, the State relied on the foundational

argument that, because Van Cuylenborg and Cook traveled together, Van

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Cuylenborg would not have had consensual sexual intercourse with Talbott and

therefore Talbott must have raped Van Cuylenborg. The State’s theory rested on

the inference that Talbott killed both either in furtherance of, flight from, or to cover

up the rape. This argument rests on a number of presumptions about the

relationship between the couple which simply cannot be known and is undercut by

testimony that reflects the pair had been dating only four months and “had been

having some problems lately.” The State also maintains Van Cuylenborg was

unlikely to have sexual intercourse with a stranger because she was menstruating.

However, the only evidence presented that Van Cuylenborg was menstruating was

the discovery of a used tampon in the van that was never tested for DNA and

therefore never conclusively determined to be hers; the autopsy report did not

indicate that she was menstruating at the time of her death. Ultimately, there was

no evidence regarding Van Cuylenborg’s sexual interests, proclivities, practices,

or desires.

“‘Circumstantial evidence is evidence of facts or circumstances from which

the existence or nonexistence of other facts may be reasonably inferred from

common experience.’” Jackson, 145 Wn. App. at 818 (internal quotation marks

omitted) (quoting 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 5.01, at 124 (2d ed. 1994). Our case law permits the jury

to rely entirely on this type of evidence in reaching its verdict. Id. Further, under

our well-established jurisprudence, we must “defer to the trier of fact on issues of

conflicting testimony, witness credibility and persuasiveness of the evidence.”

State v. Higgs, 177 Wn. App. 414, 436, 311 P.3d 1266 (2013); see also, e.g., State

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v. Merritt, 200 Wn. App. 398, 408, 402 P.3d 862 (2017), State v. Bryant, 142 Wash.

417, 418-19, 253 P. 450 (1927). Accordingly, we defer to the jury here to navigate

the conflicting evidence and evaluate its overall persuasiveness.

Under our deferential standard of review, there is sufficient evidence in the

record for a rational juror to find the State met its burden of proof. A reasonable

juror could have agreed with the State’s theory of the case that, based on the DNA

evidence, condition of Van Cuylenborg’s body, and details of her trip with Cook,

Talbott raped Van Cuylenborg and subsequently shot and killed her. A rational

trier of fact could have likewise found Talbott committed the murder in the course

of, furtherance of, or in immediate flight from the rape of Van Cuylenborg. Further,

a reasonable juror could have agreed with the State’s theory that Talbott killed

Cook based on the connection between the victims and scenes. A rational juror

could have found Talbott committed both murders as part of a common scheme or

plan or as the result of a single act. Viewing all evidence and reasonable

inferences in the light most favorable to the State, a reasonable juror could have

found the State met its burden to prove the elements of the crimes as well as the

aggravators.

II. Exclusion of Evidence of Other Suspects

Talbott next alleges the trial court erred by excluding other suspect

evidence, infringing on his right to present a defense. The United States

Constitution and our state constitution guarantee all defendants the right to present

testimony in their own defense. State v. Broussard, 25 Wn. App. 2d. 781, 785,

525 P.3d 615 (2023). However, this right “is not absolute” and “does not extend

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to irrelevant or inadmissible evidence.” State v. Strizheus, 163 Wn. App. 820, 830,

262 P.3d 100 (2011). Generally, irrelevant evidence is inadmissible. ER 402.

Evidence is relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” ER 401.

We apply “a two-step standard of review when considering whether an

evidentiary decision violated a defendant’s due process ‘right to present a

defense.’” Broussard, 25 Wn. App. 2d at 786 (quoting State v. Arndt, 194 Wn.2d

784, 797, 453 P.3d 696 (2019)). First, we “review the trial court’s individual

evidentiary rulings for an abuse of discretion” and then “consider de novo the

constitutional question” of whether those rulings deprived the accused of their right

to present a defense. Arndt, 194 Wn.2d at 797-98. This court only reaches step

two, the constitutional question, “if the ruling was either within the trial court’s

discretion, or an abuse of discretion but harmless.” Broussard, 25 Wn. App. 2d at

786.

The right to present a defense is not absolute; the evidence the accused

seeks to admit must be at least minimally relevant. State v. Jones, 168 Wn.2d

713, 720, 230 P.3d 576 (2010). “The standard for relevance of other suspect

evidence is whether there is evidence ‘tending to connect’ someone other than the

defendant with the crime.” State v. DeJesus, 7 Wn. App. 2d 849, 866, 436 P.3d

834 (2019) (internal quotation marks omitted) (quoting State v. Franklin, 180

Wn.2d 371, 381, 325 P.3d 159 (2014)). Essentially, this requires “a nonspeculative

link between the other suspect and the charged crime.” Franklin, 180 Wn.2d at

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381. “This inquiry, properly conducted, focuses on whether the evidence offered

tends to create a reasonable doubt as to the defendant’s guilt, not whether it

establishes the guilt of the third party beyond a reasonable doubt.” DeJesus, 7

Wn. App. 2d at 866. The defendant bears the burden to establish other suspect

evidence is admissible. Strizheus, 163 Wn. App. at 830.

During Talbott’s cross-examination of former Snohomish County Sheriff’s

Department (SCSD) Detective Gregg Rinta, counsel sought to elicit testimony

about two brothers who had been suspects early in the investigation, but whom

the police ultimately ruled out because they did not match the DNA profiles. An

informant had reported to his parole officer that a friend told him an individual had

confessed that he and his brother “killed the two kids.” Talbott’s counsel argued

that tips about “two brothers . . . who one of them had supposedly made some sort

of confessional statement” and an informant who apparently indicated they heard

a confession when they met one of the brothers in prison in 1990, provided an

adequate foundation from which to elicit the other suspect evidence from Rinta.

Counsel explained:

Then there was an interview with the informant. . . . He’s the one that
was at the Honor Farm.[2] His parole officer stated that [the informant]
might have information about the murders. [The informant] denied
involvement or knowledge of the murders. Sometime later [the
informant] called Johnson, who was his parole officer. [The
informant] said that when Johnson had left the trailer, a friend of his
. . . came over to visit. The two of them started talking, and the subject
of the murders came up. [The friend] began telling [the informant] the
details of the murder, including the fact that a pack of cigarettes had
been stuffed down the throat of the male victim. [The friend] told [the
informant] that [a pair of brothers] killed the two kids, and that [one
of the brothers] had told him about it.

2 This appears to be a reference to a now-defunct program run by the Department of
Corrections which was formally titled “Washington State Reformatory Farm.”

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The Court: When is the time frame for all of this?

[Defense counsel]: Well, the interview that the DOC [Department of
Corrections] officer has with [the informant] was October 10, 1994.
That was the date Detective Rinta spoke with Johnson, who is the
DOC officer, the parole officer. And this is said to him during a visit
some time—it says during a visit to [the informant]’s trailer in
Snohomish some time that year, referring to 19—probably 1988. So
some time after he was released June 22, 1988.

The court ruled that this offer of proof was insufficient to tie the specific individuals

to the case and determined that the fact that someone had escaped from Honor

Farm near the time of the murder was too tenuous a connection between the

brothers and the present case. However, the court did allow defense counsel to

question Rinta about how many other suspects were excluded solely on the basis

of DNA.

The offer of proof by the defense as to this matter is lacking in that the

connections are too attenuated and do not meet the baseline standard of

admissibility. An offer of proof for other suspect evidence requires a more direct

and admissible connection. See State v. Ortuno-Perez, 196 Wn. App. 771,

786-88, 385 P.3d 218 (2016). Talbott’s offer of proof to the court lacked the

requisite foundation to properly introduce this other suspect evidence and, as such,

the trial court did not abuse its discretion in its evidentiary ruling. Without the

necessary foundation to properly raise the other suspect evidence, Talbott failed

to establish the relevance of the proffered testimony. Exclusion of evidence which

is not minimally relevant under ER 401 does not violate the right to present a

defense, and as such there was no constitutional error here.

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III. Improper Opinion Testimony

Talbott next argues SCSD Deputy James Scharf improperly opined on his

guilt, invading the province of the jury. This court reviews a trial court’s ruling to

admit or exclude evidence for an abuse of discretion. State v. Demery, 133 Wn.2d

753, 758, 30 P.3d 1278 (2001). “Generally, no witness may offer testimony in the

form of an opinion regarding the guilt or veracity of the defendant; such testimony

is unfairly prejudicial to the defendant ‘because it invades the exclusive province

of the jury.’” Id. at 759 (internal quotation marks omitted) (quoting City of Seattle

v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993)). Both experts and lay

witnesses may offer opinion testimony in certain instances. See ER 701; ER 702.

However, “[b]efore opinion testimony is offered, the trial court must determine its

admissibility.” State v. Montgomery, 162 Wn.2d 577, 591, 183 P.3d 267 (2008).

To determine whether statements constitute impermissible opinion testimony, the

court should consider the circumstances of the case, including the following: “(1)

‘the type of witness involved,’ (2) ‘the specific nature of the testimony,’ (3) ‘the

nature of the charges,’ (4) ‘the type of defense, and’ (5) ‘the other evidence before

the trier of fact.’” Demery, 144 Wn.2d at 759 (quoting State v. Heatley, 70 Wn.

App. 573, 579, 854 P.2d 658 (1993)).

As a general rule, this court will not consider issues raised for the first time

on appeal. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). However,

a party may raise a manifest error of constitutional dimension even where there

was no objection at trial. RAP 2.5(a)(3). “The defendant must identify a

constitutional error and show how the alleged error actually affected the

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defendant’s rights at trial.” Kirkman, 159 Wn.2d at 926-27. “It is a showing of

actual prejudice that establishes the error as ‘manifest,’ allowing appellate review.”

Id. at 927 (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251

(1995)).

Scharf testified that he told his sergeant “that the case was solved.” While

the State contends this statement merely conveys the next steps taken by Scharf

in his investigation, rather than an opinion on guilt, this is plainly incorrect. In State

v. Fleeks, the trial court played a recorded interview between a detective and the

defendant, wherein the detective stated “‘this is probably your last chance to try to

make yourself not look so cold-hearted and stuff like that.’” 25 Wn. App. 2d 341,

369, 523 P.3d 220 (2023). Our court held this statement “improperly commented

on Fleeks’s intent and effectually directed the jury to not believe Fleeks’s self-

defense theory,” because the opinion “could easily appear to the jury as a belief

that Fleeks was guilty of murder, not acting in self-defense” which “could interfere

with the jury’s ability to determine every fact beyond a reasonable doubt.” Id. at

370. Similarly, here, Scharf’s statement that “the case was solved,” though

perhaps made in the context of explaining what he said to his sergeant after

receiving DNA results, effectively communicated to the jury that he believed Talbott

committed the crime, interfering with the jury’s ability to determine every fact

beyond a reasonable doubt. “[A]n opinion as to the defendant’s guilt is particularly

prejudicial when it is expressed by a government official, such as a police officer.”

State v. Thompson, 90 Wn. App. 41, 46, 950 P.2d 977 (1998). Critically, Scharf

was not just any law enforcement officer; he was the lead cold case detective and

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was given leave by the court to sit with the prosecuting attorneys at counsel table

throughout the trial. Scharf’s prominent role in the investigation of the case and

presence alongside prosecutors for the duration of the trial, which necessarily

signaled his importance to the State in Talbott’s apprehension and prosecution,

greatly impacts the weight jurors likely gave to his conclusion that the “case was

solved.”

However, counsel for Talbott not only failed to object, but affirmatively used

this comment to bolster their case theory in closing argument. The defense theory

was that the DNA evidence that linked Talbott to Van Cuylenborg was insufficient

to establish criminal activity, however law enforcement developed “tunnel vision”

as to the recovered DNA and later match to Talbott. This improper comment by

Scharf supported the defense theory of the case and, rather than object, counsel

strategically utilized the comment in their final argument to the jury. Because it

appears counsel’s failure to object was a strategic one, there is no prejudice

sufficient to establish a manifest error under RAP 2.5(a)(3). See Kirkman, 159

Wn.2d at 937. Talbott has failed to demonstrate entitlement to relief on this issue.

IV. Evidence of Arrest

Talbott next contends the trial court abused its discretion when it admitted

Scharf’s prolonged description of his arrest. A trial court’s ruling “to admit or

exclude evidence is reviewed for an abuse of discretion.” State v. Scherner, 153

Wn. App. 621, 656, 225 P.3d 248 (2009). As a preliminary matter, in its response

brief, the State argues Talbott did not preserve this issue because counsel’s

objection was based on relevance, rather than objecting that “this evidence was

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not relevant as evidence of flight.” (Emphasis added.) The State is incorrect. “The

propriety of an evidence ruling will be examined on appeal if the specific basis for

the objection is ‘apparent from the context.’” State v. Braham, 67 Wn. App. 930,

935, 841 P.2d 785 (1992) (quoting State v. Pittman, 54 Wn. App. 58, 66, 772 P.2d

516 (1989)). Trial counsel need not “cite a particular rule of evidence,” so long as

the legal basis for the objection “can be inferred from the context of the objection

made below.” Id. Here, counsel for Talbott objected “as to relevance.” The court

overruled the objection, and Scharf continued detailing his arrest of Talbott,

drawing another objection, again based on relevance. Counsel then explained

that “there is no relevance to doing a second-by-second recap of my client being

handcuffed and arrested,” and “[t]his is just a way to make Mr. Talbott look like a

villain and a criminal by describing the manner in which he is arrested.” The

precise basis for the defense objection is abundantly clear from the record.

Evidence must be relevant to be admissible. ER 402. “Evidence of flight is

admissible if it creates ‘a reasonable and substantive inference that defendant’s

departure from the scene was an instinctive or impulsive reaction to a

consciousness of guilt or was a deliberate effort to evade arrest and prosecution.’”

State v. McDaniel, 155 Wn. App. 829, 853-54, 230 P.3d 245 (2010) (internal

quotation marks omitted) (quoting State v. Freeburg, 105 Wn. App. 492, 497, 20

P.3d 984 (2001)). This court will not accept “[p]yramiding vague inference upon

vague inference [to] supplant the absence of basic facts or circumstances from

which the essential inference of an actual flight must be drawn.” State v. Bruton,

66 Wn.2d 111, 113, 401 P.2d 340 (1965). Further, even admissible evidence of

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

innocence.” Freeburg, 105 Wn. App. at 498. The Court of Appeals has analyzed

the admissibility of evidence of flight under both ER 403 and ER 404(b). See Id.

at 497-98 (ER 404(b)); McDaniel, 155 Wn. App. at 853-54 (ER 403). Both appear

in our state rules of evidence underneath the title “Relevancy and Its Limits.”

Counsel’s objection that the evidence was not relevant was sufficient to preserve

this issue; the basis for the objection is both clear from the record and sufficient for

this court’s review.

The State failed to demonstrate a “reasonable and substantive inference”

between Talbott’s actions and consciousness of guilt. Though Talbott initially

refused to provide identification and failed to immediately turn around and put his

hands behind his back, 3 Talbott did not flee and complied with commands after

Scharf moved to physically engage him. Further, the significant passage of time

between the murders and Talbott’s arrest undercuts any relevance with regard to

consciousness of guilt. In McDaniel, the court held evidence that a defendant

resisted an arrest which took place nine months after the crimes had occurred

made any inference as to consciousness of guilt too speculative. 155 Wn. App. at

855. Here, Talbott was arrested 30 years after the crimes took place. There is so

little probative value in the evidence of Talbott’s arrest that the court abused its

discretion in admitting the testimony.

3 Scharf testified that, upon approaching Talbott at his place of employment, he had

identified himself as “Detective Scharf from the Sheriff’s Office, but [] didn’t tell him which sheriff’s
office,” nor did he explain the reason for his contact prior to asking for Talbott’s identification. This
context is significant in light of the State’s argument that Talbott’s initial noncompliance
demonstrated consciousness of guilt.

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However, an evidentiary error only requires reversal where, within

reasonable probabilities, it materially affected the outcome of the trial. State v.

Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001). Because the probative value of

the testimony was so low, the likelihood that it affected the outcome of the trial is

also low. Talbott failed to meet his burden to demonstrate prejudice given that his

conduct as described by Scharf was innocuous to the point that it was not relevant,

which renders it unlikely to have materially affected the outcome of the trial.

V. Prosecutorial Misconduct

Talbott asserts that repeated prosecutorial misconduct during closing

argument and rebuttal deprived him of a fair trial. A prosecutor is required to “seek

convictions based only on probative evidence and sound reason.” State v.

Castañeda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74 (1991). The State “‘should

not use arguments calculated to inflame the passions or prejudices of the jury.’” In

re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012) (quoting

AM. BAR ASS’N, STANDARDS FOR CRIMINAL JUSTICE std. 3-5.8(c) (2d ed. 1980)).

While the prosecutor has “wide latitude to argue reasonable inferences from the

evidence, it is misconduct for a prosecutor to urge the jury to decide a case based

on evidence outside the record.” State v. Teas, 10 Wn. App. 2d 111, 126, 447

P.3d 606 (2019). It is also misconduct for a prosecutor to suggest a defendant has

a duty to present evidence or otherwise shift “the State’s burden to prove guilt

beyond a reasonable doubt.” State v. Osman, 192 Wn. App. 355, 366, 366 P.3d

956 (2016). “However, a prosecutor is entitled to point out the improbability or lack

of evidentiary support for the defense theory of the case.” Id. at 367. A prosecutor

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may not take any “action which will unnecessarily ‘chill’ or penalize the assertion

of a constitutional right and the State may not draw adverse inferences from the

exercise of a constitutional right.” State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d

571 (1984) (quoting United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209,

20 L. Ed. 2d 138 (1968)).

Talbott assigns error to a number of remarks by the State. First, he

challenges the prosecutor’s statements at the beginning of closing argument that

asked the jury what Van Cuylenborg and Cook’s lives might have looked like had

they not died. He further argues this misconduct was repeated on rebuttal, where

the prosecutor asserted the decision the jury made would have a significant impact

on the lives of the defendant, the victims’ families, and the victims’ friends. Talbott

contends these arguments were made solely to trigger an emotional response and

appeal to the sympathy of the jurors. Talbott next challenges the prosecutor’s

reference to the AIDS 4 epidemic in the 1980s as not based on evidence contained

within the trial record. Talbott finally avers the prosecutor made several statements

that shifted the burden of proof, and improperly commented on Talbott’s exercise

of his rights to silence and to present a defense.

A. Preservation

In a prosecutorial misconduct claim, the burden is on the defendant to

establish that the challenged conduct was improper and prejudicial in the context

of the entire record. State v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43

(2011). To demonstrate prejudice, Talbott must show that there exists a

4 Acquired immunodeficiency syndrome.

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substantial likelihood that the misconduct affected the jury’s verdict. Id. “Defense

counsel’s failure to object to the misconduct at trial constitutes waiver on appeal

unless the misconduct is ‘so flagrant and ill-intentioned that it evinces an enduring

and resulting prejudice’ incurable by a jury instruction.” State v. Fisher, 165 Wn.2d

727, 747, 202 P.3d 937 (2009) (internal quotation marks omitted) (quoting State v.

Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006), overruled on other grounds

by State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014)).

While Talbott concedes that he did not make contemporaneous objections

to many of the arguments he now challenges on appeal, he avers that defense

counsel’s postverdict motion for a new trial under CrR 7.5, based in part on those

statements, preserved the errors for appellate review. However, defense counsel

did timely object to the prosecutor’s comment that the jury’s decision would

significantly impact the friends and family of the victims on the basis that it was not

rebuttal. Talbott did not challenge the prosecutor’s comment about the AIDS

epidemic in his CrR 7.5 motion.

Talbott cites State v. Lindsay to argue a contemporaneous objection is not

the only way to preserve an issue for the lower standard on review, the analysis

does apply here. 180 Wn.2d 423, 430-31, 326 P.3d 125 (2014). In Lindsay, our

Supreme Court determined that the defense motion for mistrial directly following

the prosecutor’s closing argument, but prior to deliberation, had the same

functional effect as a contemporaneous objection. Id. at 430-31. However, the

trial court in Lindsay still had an opportunity to cure via instruction. See Id.

Talbott’s motion for arrest from judgment and a new trial under CrR 7.4 and 7.5 is

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No. 80334-4-I/19

distinct from an objection at trial or a motion prior to the jury’s deliberation in that it

was brought postverdict, and provided the trial court no opportunity to give a

curative instruction before the jury determined its verdict.

Accordingly, only the prosecutor’s comment during rebuttal closing, that the

jury’s decision would significantly impact the friends and family of the victims, was

preserved such that the lower standard of review applies.

B. Specific Claims of Prosecutorial Misconduct

“Defendants are among the people the prosecutor represents. The

prosecutor owes a duty to defendants to see that their rights to a constitutionally

fair trial are not violated.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551

(2011). Having determined which test applies for each instance of alleged

prosecutorial misconduct, we now turn to Talbott’s specific challenges to determine

if he is entitled to appellate relief on these bases.

i. Impact of Verdict on Friends and Family of Victims

The only comment by the State to which Talbott contemporaneously

objected was the prosecutor stating to the jury that

you are all experienced and intelligent enough to know that the
decision you are about to make will have a significant impact on
people’s lives. On Mr. Talbott’s life. On his friends and family. On the
lives of the friends and family of Tanya Van Cuylenborg and Jay
Cook, who have been waiting for justice for 30-something years. You
know this.

Defense counsel objected that the statement was “not rebuttal.” The trial court

agreed, but stated, “I’m going to allow a little leeway here.” This argument worked

to appeal to the emotions of the jurors, rather than reminding them of their duty to

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No. 80334-4-I/20

weigh the evidence and the law and come to a logical conclusion as to the State’s

burden. However, Talbott fails to establish prejudice from this argument as the

members of the jury were surely aware that their deliberation and verdict would

have an impact on the lives of the numerous parties involved in this case.

ii. Speculating on Victims’ Hypothetical Futures

The prosecutor began his closing argument by asking the jury to imagine

what the lives of Van Cuylenborg and Cook would have been like had the crimes

not occurred:

Tanya was 18, and Jay was 20 in November of 1987. Today,
Tanya would be 50, Jay would be 52. What would their lives have
looked like?
At this young age, all of life’s important decisions were still in
front of them. Would they go to college? Or University? They were
Canadian, after all. What would they choose as a career? What
friends would they make along the way? Would they travel the world?
Would they marry? Would they have children? If so, how many?
Boys? Girls? These are all questions that their family and friends
have asked more than once in the softer moments. But there are also
questions that they have asked over and over again over the past 31
years, questions that frame their grief and loss.

This argument improperly appealed to the jury’s passion and prejudice in

addition to inviting the jury to speculate on evidence outside the record. See State

v. Pierce, 169 Wn. App. 533, 553, 280 P.3d 1168 (2012). However, any prejudice

could have been cured by an instruction from the court in response to a timely

objection by the defense. The court instructed the jury that “the lawyers’

statements are not evidence,” and they “must disregard any remark, statement, or

argument that is not supported by the evidence or the law.” The jury was also

instructed to “not let your emotions overcome your rational thought process,” and

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No. 80334-4-I/21

instead to “reach your decision based on the facts proved to you and on the law

given to you.” A curative instruction from the court would have adequately

addressed any prejudice from the prosecutor’s improper comment.

iii. Reference to AIDS Crisis

Talbott also points this court to the prosecutor’s reference to the impact of

AIDS and, in particular, fear around the disease which was prevalent in the 1980s:

We also know, this is 1987. And the presence of semen would
suggest, especially on her vaginal swab, that this sexual encounter
occurred without a condom. At the height of the AIDS crisis in 1987.
Under what circumstances, again, how plausible is it that she would
have a consensual sexual encounter with a stranger that night under
those circumstances?

This comment plainly refers to facts outside of the evidence. There was no

evidence presented during trial regarding the AIDS crisis generally, or any

evidence that Van Cuylenborg was fearful of HIV 5 or AIDS, or that the global health

crisis surrounding the virus impacted her sexual decision-making. However, any

prejudice could have been cured by an instruction or admonition by the court,

reminding the jury it could only consider the evidence presented and to disregard

the prosecutor’s reference to matters outside the record.

iv. Burden Shifting and Evidence of Consent

Talbott argues the prosecutor improperly shifted the burden of proof when

he commented that there was no evidence of a consensual sexual encounter. The

prosecutor argued:

5 Human immunodeficiency virus. If left untreated, HIV can lead to the development of
AIDS.

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No. 80334-4-I/22

[Defense counsel] mentioned again and again in her closing
argument this innocent explanation, this innocent alternative
explanation for why Mr. Talbott’s DNA, his semen, would be on
Tanya. Where is it? What is it? Have you heard it? Because there is
no evidence of anything but rape. To suggest, again, that there was
a consensual encounter between the defendant and Tanya runs
contrary to all of the evidence.

The prosecutor reinforced this by stating, “There is simply no evidence to suggest

a consensual sexual encounter.”

Again, the accused “has no duty to present evidence, and it is error for the

prosecutor to suggest otherwise.” Osman, 192 Wn. App. at 366. A prosecutor’s

actions constitute misconduct where they “shift[] the State’s burden to prove guilt

beyond a reasonable doubt.” Id. Generally, the prosecutor may not “‘comment on

the lack of defense evidence because the defense has no duty to present

evidence.’” State v. Fedoruk, 184 Wn. App. 866, 887, 339 P.3d 233 (2014)

(quoting State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003)). A

prosecutor may, however, “point out the improbability” of the defense’s theory of

the case, Osman, 192 Wn. App. at 367, or “argue that the evidence does not

support the defense theory.” State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747

(1994).

The prosecutor’s comments here respond to defense counsel’s argument

that “there is an innocent explanation for [Talbott’s] DNA,” and “there are innocent

explanations to why that DNA is present on [Van Cuylenborg], associated with

[Van Cuylenborg].” Considering the evidence and closing arguments as a whole,

the prosecutor’s comments on this issue are directed at undercutting the

explanation provided in Talbott’s closing argument which purported to demonstrate

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No. 80334-4-I/23

consensual sexual activity. More critically, even if the statements were improper,

an instruction from the court as to the State’s burden of proof could have cured

any prejudice.

v. Comment on Cross-Examination of Print Analyst

Finally, the prosecutor questioned why Talbott would cross-examine the

fingerprint analyst at length during the presentation of evidence if the sexual

encounter with Van Cuylenborg had indeed been consensual. The prosecutor

stated:

That the defense responds, both in the course of the trial and
in closing argument, to the fingerprint or palm print evidence is
interesting. Because if the theory that the defense wants you to
accept is that at some point, under some circumstances, beyond
comprehension, Mr. Talbott and [Van Cuylenborg] met and had a
consensual sexual encounter, then why are we so worried about his
palm print on the van? If there is this innocent alternative explanation
for why his semen is here, which again, we haven’t heard, then why
are we so worried about the palm print? Why expend so much energy
attacking the witness on the stand, and trying to discredit the
evidence in closing argument if it’s just part of this innocent
alternative explanation for their encounter?

This argument by the State was an improper comment on Talbott’s

constitutional right to confront and cross-examine witnesses. See Rupe, 101

Wn.2d at 705 (“[T]he State may not draw adverse inferences from the exercise of

a constitutional right.”). Offering an innocent explanation for certain evidence is

not a waiver of the right to vigorously challenge the State’s witnesses and

evidence. “Cross-examination is the principal means by which the believability of

a witness and the truth of [their] testimony are tested.” Davis v. Alaska, 415 U.S.

308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The confrontation of witnesses

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No. 80334-4-I/24

“‘helps assure the accuracy of the fact-finding process.’” State v. Chicas Carballo,

17 Wn. App. 2d 337, 346, 486 P.3d 142 (2021) (quoting State v. Darden, 145

Wn.2d 612, 620, 41 P.3d 1189 (2002)). This misconduct by the State, however,

could have been cured by an instruction from the court which directed the jury to

disregard the comment and reminded jurors that they may not draw an adverse

conclusion from Talbott’s exercise of his constitutional rights.

Ultimately, Talbott fails to meet his heightened burden of demonstrating that

the prosecutor’s improper conduct in closing argument had a substantial likelihood

of affecting the verdict and that such prejudice could not have been cured with an

instruction had counsel timely objected. State v. Emery, 174 Wn.2d 741, 760-761,

278 P.3d 653 (2012). However, we take this opportunity to remind the State of its

duty to the accused under the law to refrain from improper arguments. A

prosecutor is “the representative of the people in a quasijudicial capacity in a

search for justice,” and as such “owes a duty to defendants to see that their rights

to a constitutionally fair trial are not violated.” Monday, 171 Wn.2d at 676.

VI. Ineffective Assistance of Counsel

In a related assignment of error, Talbott asserts counsel was ineffective for

failing to object to those comments he identifies as prosecutorial misconduct. In a

claim of ineffective assistance of counsel, the defendant must demonstrate that

counsel’s performance was deficient and that the deficient performance resulted

in prejudice. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). Performance is considered deficient if it falls “below an

objective standard of reasonableness based on the consideration of all the

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No. 80334-4-I/25

circumstances.” McFarland, 127 Wn.2d. at 334-35. “Specifically, ‘the defendant

must show in the record the absence of legitimate strategic or tactical reasons

supporting the challenged conduct by counsel.’” State v. Vazquez, 198 Wn.2d

239, 248, 494 P.3d 424 (2021) (quoting McFarland, 127 Wn.2d at 336). Trial

counsel’s decision about when, and how, to object is a “classic example of trial

tactics.” Id. The defendant must demonstrate that, had counsel made the

proposed objection, it would have succeeded. Id. A showing of prejudice requires

a reasonable “probability that, ‘but for counsel’s deficient performance, the

outcome of the proceedings would have been different.’” State v. Estes, 188

Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting State v. Kyllo, 166 Wn.2d 856,

862, 215 P.3d 177 (2009). “Courts engage in a strong presumption counsel’s

representation was effective.” McFarland, 127 Wn.2d at 335.

Here, counsel affirmatively stated the decision not to object was a strategic

one. In Talbott’s postverdict motion for a new trial, defense counsel explained that

he “was faced with a Hobson’s choice of risking alienation of the [jury] by

objecting,” particularly where the court had given wide latitude to the prosecutor

and, as such, did not object to other instances of misconduct. 6 The decision to

forego an objection due to the risk of it being overruled, therefore calling further

attention to the matter at the heart of the objection, is a classic strategic choice.

Given the risk of alienating the jury, the choice not to object during closing and

then pursue relief through a postverdict motion, while unsuccessful, was a

6 For example, the court agreed the prosecutor’s argument that the jury’s decision would

impact the victims’ family and friends was “not technically rebuttal” but had expressly ruled to “allow
a little leeway” to the prosecutor.

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No. 80334-4-I/26

reasonable tactical decision. Because he fails to demonstrate deficient

performance, Talbott has not met his burden under Strickland to establish

ineffective assistance of counsel.

VII. Firearm Enhancement

Talbott next asserts the trial court erroneously included a firearm

enhancement in the sentence it imposed, as recorded in the judgment and

sentence. The jury found Talbott was armed with a firearm during the commission

of the crimes. However, a firearm enhancement only applies to “felony crimes

committed after July 23, 1995.” RCW 9.94A.533(3). The jury expressly found both

crimes were committed in November 1987. Accordingly, the statutory firearm

enhancement does not apply to the crimes at issue here as a matter of law. The

State properly concedes this was error. We remand for the trial court to strike the

firearm enhancement and correct the judgment and sentence.

VIII. Youthfulness

In supplemental briefing, Talbott contends he is entitled to a new sentencing

hearing so the judge may consider his youthfulness 7 under In re Personal Restraint

of Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021). In Monschke, our State

Supreme Court held mandatory sentences of life without the possibility of parole

are unconstitutional when imposed on youthful offenders because sentencing

courts must retain discretion to consider the mitigating qualifies of youth. 197

Wn.2d at 325-26. However, Monschke dealt with 19- and 20-year-old defendants;

7 Talbott was 24 years old at the time the crimes were committed.

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No. 80334-4-I/27

the Supreme Court has not extended its application to include individuals up to 24

years of age, like Talbott was. As an intermediate appellate court, we decline to

extend the temporal bounds of our Supreme Court’s holding from Monschke to

include 24-year-olds.

IX. Statement of Additional Grounds for Review

Talbott raises a variety of issues in his pro se statement of additional

grounds for review (SAG). Under RAP 10.10(a), a defendant may file an additional

brief “and discuss those matters related to the decision under review that the

defendant believes have not been adequately addressed by the brief filed by the

defendant’s counsel.” We will “only consider arguments that are not repetitive of

briefing.” State v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496 (2013). A defendant

may not raise “issues that involve facts or evidence not in the record” in a SAG,

but must raise those issues in a personal restraint petition. Id. While “[r]eference

to the record and citation to authorities are not necessary or required,” a defendant

must “inform the court of the nature and occurrence of alleged errors.” RAP

10.10(c). We decline to reach Talbott’s argument regarding incomplete or

inaccurate verbatim reports of proceedings as it references evidence not in the

record. We also decline to reach Talbott’s pro se assignment of error regarding

the insufficiency of evidence as repetitive of his counsel’s briefing already analyzed

herein.

Talbott argues there was additional evidence of other suspects that should

have led to investigation pretrial and testimony at trial. The legal nature of this

assignment of error is ambiguous; it is not clear if Talbott is asserting the

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No. 80334-4-I/28

prosecutor committed misconduct by arguing that “tips were ruthlessly followed up

on” and that “[p]rints from the van were also compared to persons of interest over

the years” in light of Talbott’s assertion in his SAG that there were other suspects

whose prints were not compared to those on the van and other tips that were not

investigated, or if he is arguing defense counsel was ineffective for failing to point

out these purported contradictions. As we are unable to discern the nature and

occurrence of the alleged error from Talbott’s SAG, we do not consider this

challenge.

Talbott also argues his trial counsel was ineffective for failing to obtain

employment records for State’s witness Tim McPhearson and security camera

footage of his arrest, not adequately cross-examining witnesses, and failing to

object to prosecutorial misconduct. Talbott does not explain how McPhearson’s

employment records would have been used at trial or how they would have

undercut McPhearson’s testimony, which was, in turn, a small portion of the

lengthy trial. To the extent Talbott references facts outside the record to support

this assignment of error, we may not reach that challenge. See Calvin, 176 Wn.

App. at 26-27. As to the arrest footage, defense counsel’s decision to not obtain

or seek admission of arrest footage was a reasonable strategic decision given that

counsel sought to exclude Scharf’s testimony about Talbott’s arrest as irrelevant.

Talbott also contends counsel was ineffective for failing to question forensic

analyst Lisa Collins about another source of DNA found on Van Cuylenborg and

failing to argue that Van Cuylenborg had another recent sexual encounter which

produced the second DNA profile. However, the record represents that his

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No. 80334-4-I/29

defense attorney cross-examined Collins on the second DNA profile and elicited

testimony that the profile was consistent with bodily fluids such as saliva or vaginal

secretions. As such, counsel’s performance was not deficient.

Talbott next alleges counsel was ineffective for failing to object to the

prosecutor’s misconduct, namely the State’s use of the word “rape” over 25 times

in closing argument and the prosecutor’s final words in rebuttal that “Mr. Talbott

bound raped, then killed Tanya Van Cuylenborg.” As to the repetition of the word

rape, this was proper argument and counsel’s performance was therefore not

deficient for failing to object. Talbott’s challenge to the prosecutor’s final words

relies on facts outside the record and as such we may not consider it. See Id.

Talbott finally contends prosecutorial misconduct warrants reversal in this

case. He again challenges the prosecutor’s repeated use of the word “rape” and

the prosecutor’s final words in rebuttal, which he recalls as “Mr. Talbott bound

raped, then killed Tanya Van Cuylenborg.” Talbott does not argue that the number

of times the word rape was used was misconduct, but that since “there were no

charges of rape or forensic evidence of rape,” use of the word was improper. While

there was no separate charge of rape filed by the State, an aggravating

circumstance based on rape was alleged in the charging document and presented

to the jury. The State’s theory of the case was that Talbott raped Van Cuylenborg

and then killed her and Cook to cover up the rape. As such, the use of the word

“rape” was proper as it was a key aspect of the State’s theory of the case and

evidence presented at trial. Again, Talbott’s argument regarding the prosecutor’s

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No. 80334-4-I/30

final words relies on facts outside the record and as such we may not consider it.

See Id.

We remand for the trial court to strike the firearm enhancement from

Talbott’s judgment and sentence, but otherwise affirm. 8

WE CONCUR:

8 Talbott also asserts that cumulative error requires reversal of his convictions. However,

as we have determined that the court did not err with regard to the various challenges presented
herein, the cumulative error doctrine does not apply.
Additionally, after Talbott’s case was remanded to this court, he moved to file a
supplemental opening brief, raising additional issues. This court granted his motion and authorized
the State to file a response, which it did. Talbott then filed a reply brief. We exercise our discretion
to not reach the supplemental assignments of error and decline to consider these additional issues.

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