* State of Washington v. Yasir Darraji

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
YASIR DARRAJI,
Appellant.
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No. 39421-2-III
OPINION PUBLISHED IN PART
STAAB, J. — Prosecutors are prohibited from injecting improper bias into a trial by
playing into religious or cultural prejudices. But not all references to religion or culture
play into improper bias. When relevant and grounded in the evidence, it is not improper
for a prosecutor to present testimony or argument related to religion and culture. Indeed,
such evidence may be necessary to prove a fact at issue, such as motive. That is what
happened in this case.
The State charged Yasir Darraji with second degree felony murder and felony
harassment. The State’s evidence was that Yasir,1 an Iraqi immigrant, was upset that his
former wife, Ibtihal Darraji, had changed her behavior and beliefs in ways that did not
1 Because Ibtihal and Yasir have the same last name, we refer to Ibtihal and Yasir
using their first names to avoid confusion. No disrespect is intended.
FILED
MAY 22, 2025
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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conform to Iraqi culture. Yasir himself framed his concerns about Ibtihal in terms of his
Iraqi culture and Islamic beliefs. After police found Ibtihal’s murdered body inside a
burning vehicle, the investigation focused on Yasir, largely due to evidence of his
admitted disapproval of Ibtihal’s behavior, which he described as culturally and
religiously motivated. Given this specific factual circumstance, Yasir’s religious beliefs
and cultural affiliation were relevant to the State’s case. It therefore was not improper for
the State to present evidence and arguments pertaining to religion and culture to the jury.
We affirm Yasir’s conviction for second degree murder but reverse his conviction
for felony harassment based on insufficient evidence. Otherwise, we find no error and
remand with instructions to dismiss the harassment charge with prejudice and resentence
Yasir on the remaining conviction. On remand, Yasir can raise any remaining sentencing
issues.
BACKGROUND
In February 2020, the State charged Yasir with second degree murder against an
intimate partner, committed during the course of a second degree assault by strangulation.
Approximately one month before trial, the State moved to amend the information by
adding one count of felony harassment based on a threat to kill with a domestic violence
enhancement. The prosecutor argued that the State’s witnesses would testify that Yasir
made several threats to kill Ibtihal. The court granted the motion and permitted the State
to file an amended information.
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At trial, the State’s theory was that Ibtihal’s rejection of traditional Iraqi culture
and Islamic beliefs, and her embrace of American culture and Christianity, was the
source of conflict between the former spouses. Their fighting and insults escalated until
Yasir strangled Ibtihal to death in her car, drove the vehicle to a different location, and lit
the car on fire with Ibtihal’s body inside.
On appeal, Yasir argues that the State committed prosecutorial misconduct by
introducing irrelevant and inflammatory evidence of Islamic beliefs to invoke anti-
Muslim bias with jurors. He asserts that the State’s theory of conflict between the couple
was manufactured when the couple simply disrespected each other. Yasir maintains that
the State’s evidence of Iraqi culture, Islamic beliefs, and Ibtihal’s non-conforming
behavior was irrelevant. He points to specific evidence and comments as particularly
inflammatory, including evidence of Ibtihal’s decision to convert to Christianity and stop
wearing a hijab, and evidence of their daughter wearing traditional Islamic attire and
praying. Along with the prosecutor’s use of the term “Americanized,” he contends these
comments and evidence amounted to prosecutorial misconduct. While acknowledging
that he failed to raise this issue at trial, Yasir argues that we should apply the standard for
race-based misconduct to his arguments based on culture and religious bias.
With this background in mind, we turn to the evidence produced at trial.
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Yasir and Ibtihal Darraji married in Iraq in 2006 and had two children, a daughter,
T.D., and a son, D.D. The family immigrated to Spokane in 2014. The couple separated
in 2015 and divorced around two years later.
Initially, Yasir and Ibtihal shared custody of their children. Several years after
their separation, their oldest child, T.D., chose to live with Yasir full time because she did
not get along with her mother. D.D. continued to split time between his parents.
On January 30, 2020, firefighters pulled Ibtihal’s body from her burning vehicle
on the South Hill in Spokane. An autopsy determined that the cause of death was manual
strangulation and that Ibtihal was not alive when the fire began.
The State’s theory at trial was that Yasir killed Ibtihal because he felt disrespected
by Ibtihal’s nonconforming behavior after the divorce—both true and rumored—as well
as the insults she directed toward him. During opening statements, the prosecutor began
by explaining that the Darrajis immigrated to America from Iraq as refugees, seeking a
good life, but divorced a few years later. The prosecutor then told the jury that the
Darrajis began to fight over Ibtihal’s behavior:
You’re also going to hear that starting in late 2019, trouble began to
emerge between the two of them. Fights started happening again and
rumors were being spread about Ibtihal Darraji that this good life she’d
come here to live suddenly wasn’t looking right anymore. There were a lot
of disputes about how she was becoming more Americanized. She’d spend
time with friends and go dancing. She’d go drinking sometimes. These are
things that were seen as unacceptable in her culture.
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You’re going to hear that rumors spread that she was having sex
outside of wedlock, that she was pregnant with somebody’s child. And,
ultimately, this came to a head in late 2019, and she confronted one of
[Yasir’s] friends who had been spreading rumors about her being pregnant.
Rep. of Proc. (RP) (Nov. 2, 2022) at 705.
Yasir’s Interview
The State introduced evidence of Yasir’s interview with police the day after
Ibtihal’s body was found. Yasir was provided an interpreter and agreed to waive his
Miranda2 rights and answer questions.
Detectives began the interview by asking Yasir why he and Ibtihal had divorced.
Yasir described how the couple had argued one evening and then explained to detectives
that Ibtihal believed she would be free if she divorced Yasir. According to Yasir, an
unnamed person had told Ibtihal that if she divorced Yasir, “you [are] gonna be free and
you[are] gonna be [a] free woman and nobody [is] gonna be in judge of you, and you
[are] gonna have a full custody of kids and he gonna pay you, and you [are] gonna have
[a] free house, and he [is] gonna pay you child support.” Ex. P121 at 18 min. 39 sec. to
19 min. 17 sec. Yasir told the detectives that Ibtihal was “like [a] child,” and did not
understand what she was being told. Ex. P122 at 16.
Yasir continued by saying that another day after the initial argument, when he
returned home, Ibtihal continued the fight, telling Yasir, “your father [is] gay,” and “your
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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sister [is a] bitch.’” Yasir then explained to the detectives that “we” did not accept that,
and by “we” he meant his culture, clarifying that “our culture is different.” Ex. P122 at
17. Yasir then told detectives that he believed Ibtihal was insulting his family because
“she want me [to] hit her, . . . to punish her, to piss me off,” but he did not retaliate
because he did not want to go to jail. P121 at 21 min., 38 sec. to 21 min., 45 sec.
The interview then shifted to questions about Yasir’s last contact with Ibtihal on
the preceding evening (the night she was murdered). Yasir told detectives that Ibtihal
arrived outside his apartment just before 6:00 p.m. to pick up their son, D.D. Once there,
she sent him rude messages and told him to send D.D. out wearing nicer clothes because
Yasir was not homeless.
Yasir went down to the parking lot to speak with Ibtihal in her car. She opened
her window, and asked Yasir if he thought he was a “real man.” Ex. P121 at 33 min.
Yasir smelled marijuana smoke coming from the vehicle and began to argue with Ibtihal.
Yasir told detectives that when Ibtihal was married to him, she did not drink or smoke
cigarettes, hookah, or marijuana. At one point, he described her as “an amazing wife
before the divorce.” P122 at 36 min., 24 sec. “But after me, she do[es] everything, I
don’t know what she do[es].” P122 at 33 min., 51 sec. to 33 min., 55 sec.
When detectives asked Yasir what Ibtihal was doing after the divorce, he said he
knew about her use of alcohol and marijuana and having sex with people. While Yasir
indicated that Ibtihal’s family would not like her behavior, he denied that her actions
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brought him shame or embarrassed him. He admitted, however, that Ibtihal had hurt him
a lot. When a detective asked whether Yasir thought Ibtihal moving to the U.S. was good
or bad for her, Yasir replied that “she takes the freedoms wrong” and used her freedom to
hurt or fight people “because she know[s] the law[s] with the woman.” Ex. P121 at 39
min., 31 sec. to 39 min., 34 sec.
Yasir explained that as he and Ibtihal began to argue about Ibtihal’s use of
marijuana, she opened the car door, and when D.D. came outside, Yasir and Ibtihal both
told him to go back inside. Ibtihal then asked Yasir if he was gossiping about her. Yasir
said that she was upset and began to cry and hit the steering wheel twice causing the horn
to honk. T.D. then came outside curious about her “mama drama.” Ex. P121 at 43 min.
But Yasir told her to go back inside and close the door.
Yasir said that as Ibtihal sat in the car, she tried to push Yasir as he got close to
her. At first Yasir said he did not touch her but later indicated that he touched her very
softly to stop her from leaving. Ibtihal became upset and drove away crying without
D.D.
Yasir told detectives that he went inside his apartment and told D.D. to message
Ibtihal to return and pick up D.D., who would be waiting outside for her. Ibtihal did not
respond to those messages, and they never saw her again.
Yasir gave different answers when asked about what he did the rest of that
evening. At first, he told detectives that he stayed home that night and went to bed early.
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Later, he explained that after checking his mail, he drove around Spokane Valley,
returning home about 7:30 p.m. While acknowledging that Yasir’s friend who lived on
the South Hill had called and told Yasir a package arrived for him, Yasir denied driving
on the South Hill that night, but did mention that he drove downtown and returned home
at 9:30 p.m. When the detective continued to press Yasir on whether he drove near his
friend’s house the prior night, Yasir said he could not recall.
Forensic Evidence
Forensic testing of Ibtihal’s car turned up Yasir’s DNA on the non-melted side of
her steering wheel and on the driver’s side interior door control panel buttons.
Law enforcement obtained and analyzed the cell phone data for Yasir and Ibtihal’s
cell phones. Contrary to Yasir’s explanation during his interview, data from his cell
phone placed it on Spokane’s South Hill several times the night Ibtihal was murdered.
Cellular data showed that Yasir’s phone and Ibtihal’s phone traveled together, back and
forth, around Spokane and Spokane Valley.
Evidence of Ibtihal’s Non-Conforming Behavior
The State produced evidence that following the couples’ divorce, friends and
family members in the local Iraqi community began to notice and gossip about changes in
Ibtihal’s behavior and lifestyle.
Several witnesses testified that prior to her divorce, Ibtihal’s behavior reflected
traditional Iraqi culture. She was covering her hair, and was not driving, working,
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drinking, smoking, going to bars, or dating. After her divorce, there were rumors that she
was doing all of these things, which witnesses described as not comporting with their
traditions as Muslims and customs, not common things for a woman in their community,
and a big deal in their culture. There was evidence that Yasir was aware of the rumors
and did not approve.
Two friends of Ibtihal, Zainab Jameel and Sajida Nelson both testified that part of
Ibtihal’s changing behavior included attending a Christian church. Both witnesses were
also asked if Ibtihal was becoming more “Americanized.”
Jameel testified that Ibtihal was attending her church in 2017 with her children but
stopped attending in 2018. When asked if attending a Christian church was “frowned
upon” in Iraq, Jameel said, “I can’t answer this.” RP (Nov. 2, 2022) at 732. She also
indicated that Yasir was aware that Ibtihal was attending church.
Jameel recalled that, prior to the divorce, Ibtihal generally covered her hair and did
not smoke, drink alcohol, go to nightclubs, go to a Christian church, have a job, or drive a
car. After the divorce, Ibtihal’s behavior changed dramatically. Ibtihal began drinking,
smoking, driving, and working. When asked if she ever went to a nightclub with Ibtihal,
Jameel said, “I cannot answer this question,” but acknowledged that Ibtihal was going to
bars after the divorce. RP (Nov. 2, 2022) at 734. Jameel also acknowledged that there
were rumors in the local Iraqi community that Ibtihal was pregnant, and such rumors
would impact the reputations of both Ibtihal and Yasir. When asked if Ibtihal was
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becoming more “Americanized,” Jameel responded, “[n]ot Americanized, but became
aware, yeah.” RP (Nov. 2, 2022) at 734.
Sajida Nelson testified that the reason for the Darrajis’ divorce was Yasir’s new
girlfriend. Like other witnesses, she testified that Ibtihal’s behavior changed after the
couple separated, including Ibtihal’s decision to attend a Christian church, stop covering
her hair, and driving a car. Nelson confirmed that the Darrajis were the subject of gossip
in the local Iraqi community. Specifically, she heard gossip about Ibtihal’s behavioral
changes, “about her drinking, smoking more, and even, like, going to nightclubs and—
and also having boyfriends as well.” RP (Nov. 7, 2022) at 1146-47.
At one point the prosecutor asked Nelson:
Q You mentioned she kind of had stopped covering her hair and some
other things. Was that part of the—the gossip that you were hearing,
that she was becoming Americanized?
A No.
Q What was it—so specifically to the drinking, smoking, and boyfriends?
A Correct.
RP (Nov. 7, 2022) at 1147.
The State introduced evidence of Iraqi culture in general and as it related to
Ibtihal’s behavior. Hamid Nahi was a fellow immigrant from Iraq and met the Darrajis in
2014. He testified that he would see them occasionally. He testified that when he first
met Ibtihal she was covering her hair, but when he last saw her in January 2020, she did
not have her hair covered.
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During his last contact with Ibtihal shortly before her murder, Ibtihal mentioned to
Nahi that she was concerned about rumors that she had converted to Christianity, and that
she was smoking methamphetamine, dancing in nightclubs, drinking alcohol, and dating.3
Nahi testified that the nature of these rumors caused Ibtihal to fear for her safety,
explaining that in Iraq:
It will be—basically will be a death penalty. In Iraq, that—it’s a law. Law
goes on females only, and basically you—you can murder your wife, your
daughter, whoever, if they went and dated somebody or if they had alcohol
or something. They call it wash of shame, and it—you can—you don’t
even go to jail for it. You probably will go for like maybe one or six
months if you did it in public.
RP (Nov. 9, 2022) at 1536.
Nahi continued to testify that his conversation with Ibtihal turned to her
conversion to Christianity. He testified that he explained to Ibtihal that since she was
separated from Yasir, and was living in the United States, she had the right to convert.
Nahi then told Ibtihal that if she felt threatened, she should call “Crime Check” and make
a report.
3 Yasir accurately points out in his reply brief that Ibtihal’s hearsay statements that
certain rumors were making her fearful were introduced for the limited purpose of
proving her state of mind for the harassment charge and could not be used for other
purposes. Nahi’s testimony on Iraqi culture and law were not part of this limitation.
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Events Leading Up to Ibtihal’s Murder
The State introduced evidence of several events in the months leading up to
Ibtihal’s murder to show why tensions between the two were escalating. In late October
2019, Ibtihal began working for the Union Gospel Mission (UGM), a Christin-based
thrift store. Lorie Skillman, one of the assistant managers at this store, testified that
Ibtihal participated with other employees in daily devotionals and prayers and described
her as a Christian.
Khulood Ameri testified that following Yasir and Ibtihal’s divorce, she tried to
reunite the couple. In November 2019, the couple’s mutual friend, Galbahar “Gabby”
Suwaed arranged a meeting between Yasir and Ibtihal at a hookah bar. Suwaed went
with Ibtihal to the meeting. Yasir testified that he set up the meeting because Ibtihal
insisted on seeing him, so he asked Suwaed “to be a witness in case something happened”
between Yasir and Ibtihal. RP (Nov. 16, 2022) at 2065. However, shortly after they
arrived, Ibtihal and Yasir began arguing.
After the meeting, Yasir was happy that Suwaed heard the information he wanted
her to hear, pointing out that Ibtihal had become an “unbeliever of God.” RP (Nov. 16,
2022) at 2066. Later that month, Yasir told Suwaed to tell Ibtihal to respect him, that she
had no reason to be mad at him, and that he gets “really mad” when someone ignores him
or disrespects him.
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In December 2019, Yasir met with Zinah Shaker, one of Ibtihal’s friends and a
fellow Iraqi refugee. Shaker mentioned to Yasir that Ibtihal was drinking because she
was sad over the situation. Yasir responded that her changes did not “fit with his rituals
and culture.” RP (Nov. 14, 2022) at 165-66.
Suwaed testified that on January 3, 2020, Yasir drove her to a hookah bar. On the
way there, they began to discuss Ibtihal and Yasir’s relationship, and Yasir told Suwaed,
“[b]elieve me, she’s the one who cheated on me, and I will kill her, even if it takes me ten
years.” RP (Nov. 15, 2022) at 1777. As Yasir said this, he got “really mad” and drove so
fast that he almost rear ended a truck.4
The rumors about Ibtihal continued. Several friends testified that they heard that
Ibtihal was having extramarital sex and was pregnant, which were serious accusations in
Iraqi culture that would negatively impact her reputation. These rumors got back to
Ibtihal and made her very upset. She thought that one of Yasir’s friends, Saad al-Karawi,
was behind the rumors.
Ibtihal contacted al-Karawi and asked to meet him. On January 9, 2020, Ibtihal
and Suwaed met al-Karawi in a parking lot. As he pulled into the parking lot, al-Karawi
called Yasir and Yasir remained on the phone line during al-Karawi’s interaction with
4 This threat formed the basis for the felony harassment charge. The State
believed that Suwaed would testify that she conveyed this threat to Ibtihal. However,
when Suwaed testified, she indicated that she did not tell Ibtihal about Yasir’s threat
because she said Ibtihal “already knew” he was threatening her. RP at 1847.
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Ibtihal and Suwaed. When Ibtihal approached al-Karawi, she slapped him and insulted
him while accusing him of spreading rumors about her. Suwaed and Ibtihal proceeded to
hit al-Karawi in the face and kick him. Ibtihal also hit al-Karawi with her slippers. He
did not hit them back.
Unbeknownst to Ibtihal, Yasir was listening and recording her interaction with al-
Karawi. As al-Karawi drove home, Yasir called the police. Al-Karawi then filed a police
report with Yasir’s assistance and recording. The police later contacted Suwaed and
Ibtihal but did not arrest them.
After the police left al-Karawi’s apartment, Yasir offered to “hire two sheikhs
back in Iraq” to hold a “tribal trial” and teach Ibtihal a lesson, however al-Karawi
declined the offer. RP (Nov. 10, 2022) at 1718-19. Al-Karawi testified that he thought
that Yasir was the one who wanted to teach Ibtihal a lesson and was trying to use the
incident as an excuse to do so.
Almost immediately after the parking lot incident, Yasir and Suwaed began
exchanging accusations and insults through recorded voice messages. Yasir accused
Suwaed of trying to set al-Karawi up, and Suwaed accused Yasir of calling the police to
get Ibtihal in trouble. Within 14 minutes of the incident in the parking lot, Yasir started
forwarding Suwaed’s recorded voice messages to her mother in Iraq. At one point,
Suwaed accused Yasir of becoming “Americanized” for calling the police.
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A few days later, Yasir sent two voice messages5 to Ibtihal’s parents in Iraq. The
first message warned Ibtihal’s parents to call their daughter off or “I am going to do
things and she is going to lose things she doesn’t know she’ll lose.” Ex. P95, 96. In the
second message, Yasir warned them that “[Ibtihal] shouldn’t play with the lion’s tail,
because she’ll lose a lot of things that she doesn’t know she’ll lose. She’ll lose a lot of
things and she doesn’t know yet. So, warn her not to play with me.” Ex. P97, 98.
On Monday, January 27, after Ibtihal learned that her family in Iraq heard rumors
about her, she sent Yasir an insulting voice message:6
From your nose—I will draw you from your nose. (Unintelligible) you’ll
get back to Iraq and I won’t. I’m not leaving here. I will be a heavy load
on your chest—a load on your chest because I have nothing else better to
do. I’ll just sit here. Right, what was about (unintelligible) in America? I
will destroy you, and you’ll say nothing. I will humiliate you, and you’ll
say nothing. I will shove my shoe down your throat, and you’ll say
nothing. This is what you deserve, okay? I used to not shame you. Not
say anything wrong in front of anyone; your friends and mine. No. Now I
will control when you can stand up and when you can sit down. Humiliate
you in front of anyone. I will emasculate you with my shoe and not say
(unintelligible). With my shoe, you trash. My old shoe is worth your life
when I divorce you. Worth your life—worth your life. There’s no one
(unintelligible) divorced by his wife. What I did—Your wife
(unintelligible). Not a single woman paid attention to you after me, and no
one took you in. You used to go to her and feed each other trash. That
bitch. My shoe is worth your life—worth your life and I’ll humiliate you
(unintelligible) and you’ll say nothing, and you should be grateful. My
dear, I will burden you. (Unintelligible), I will burden you, and I will break
5 The original voice messages are in Arabic, so the State had them translated and
transcribed.
6 Again, the original voice message was in Arabic, so the State had it translated
into English.
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your dignity. You were broken before, so why say anything else? Okay? I
will break your dignity and have you walking with your tail tucked in,
(unintelligible). You’re the one who benefitted. Walking while
(unintelligible). Just wait—you just wait.
Ex. P101
Ibtihal’s message was particularly insulting because her reference to a shoe in
Arabic is considered “the ultimate insult” in Iraq. RP (Nov. 15, 2022) at 1922. Ibtihal
forwarded her message to a friend, along with laughing emojis and stated “[t]his is not
even enough.” RP (Nov. 14, 2022) at 169; Ex. P104
Yasir later testified that he was not upset by Ibtihal’s message because she had
sent similar messages to him before. After Yasir received Ibtihal’s message, he
forwarded the insult to a friend and then called the friend crying.
The following day, Tuesday, January 28, Ibtihal showed the message to Jameel.
Ibtihal told Jameel that she was afraid of Yasir because he had not responded to the
message, which was unusual for him. Ibtihal also showed the message to Suwaed, who
noticed that Ibtihal was scared. Jameel saw Ibtihal one day later and noticed that Ibtihal
looked pale and was scared because of the message she sent to Yasir.
The Day of the Murder
Three days after sending Yasir the insulting message, Ibtihal had contact with him.
On Thursday, January 30, Jameel and Suwaed had planned to have dinner with Ibtihal
after she finished work. Ibtihal was supposed to pick up her son, D.D., from Yasir’s
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apartment, then pick up Suwaed, who lived close to Yasir in the same apartment
complex.
Ibtihal left work at 5:34 p.m. She confirmed to Jameel and Shaker her plan to pick
up D.D. and Suwaed at Yasir’s apartment complex, then drive to Jameel’s house.
At 5:40 p.m., Ibtihal exchanged messages with Suwaed, who was still at work.
Since Suwaed was not home yet, Ibtihal told her that she would leave a hookah at
Suwaed’s door after picking up D.D. from Yasir. While driving to Yasir’s apartment
complex, Ibtihal called Jameel from her car at 5:45 p.m.
Suwaed, Jameel, and Shaker did not hear from Ibtihal again. Ibtihal also never left
the hookah outside Suwaed’s door as she had promised.
At 9:19 p.m., a person noticed a car filled with smoke on 27th Avenue, near a park
on Spokane’s South Hill, and called 911. When firefighters arrived, they saw a white
Prius, full of smoke, with the doors shut and rear windows opened slightly. When the
firefighters opened the car’s door, the fire flared up and they saw a severely burned body,
which was later identified as Ibtihal.
Forensic Analysis of Yasir’s Phone and Social Media
As part of the investigation, Detective Cory Turman reviewed Yasir’s phone and
social media records. Detective Turman concluded that Yasir saved a substantial number
of screenshots that seemed to center around his problems with Ibtihal.
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No. 39421-2-III
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In preparation for trial, Detective Turman created a timeline of events as a slide
presentation. When questioned about the phone records from January 9, the day of the
parking lot incident with Ibtihal and al-Karawi, Detective Turman included a photograph
taken from Yasir’s phone that showed his daughter, T.D., dressed in a black robe and
head scarf on her knees on a rug. When asked why he documented this photograph,
Detective Turman testified:
A Well, it appeared out of [the] ordinary from all the photos that I had seen
prior that were saved of [T.D.]. [T.D.] was—what she wore in court
yesterday was very consistent with her dress and style on social media.
There was one time in one interview, I believe the very first interview,
she was wearing—had her head covered. But those are all the only two
times in all of her pictures that—and I—I thought it was unusual.
Q So you documented this because it stood out to you and its abnormality,
I suppose?
A Yes.
Q Okay.
And that—remind me, when was that photo taken, as far as you
could tell, from the iCloud count?
A On the 9th and 8:14 p.m.
RP (Nov. 16, 2022) at 1954.
Yasir’s Testimony
Yasir testified in his defense. Yasir first explained that he was a member of the
Darraji tribe in Iraq, which is governed by a leader similar to a president of a country or
governor of a state. He testified that he bought Ibtihal a car and taught her to drive.
Yasir acknowledged that although Ibtihal had a permit before they separated, “[s]he
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No. 39421-2-III
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wasn’t really driving” and that “she didn’t know how.” RP (Nov. 16, 2022) at 2063-64.
When asked about why he and Ibtihal divorced, he explained, “Ibtihal understood the
freedom here incorrectly. Why would she need freedom if I didn’t even put boundaries
around her. We go out. She has her own car. Even her family back home, I would spend
on them.” RP (Nov. 16, 2022) at 2040. He claimed the reason they divorced was
because she was upset that he came home late after going to a bar. He claimed he met
another woman 15 days after this argument, while he and Ibtihal were separated but had
not yet finalized the divorce. He denied spreading rumors about Ibtihal and denied
hearing rumors in the local Iraqi community. He acknowledged crying to his friend,
Khulood Ameri after receiving Ibtihal’s voice message, and he “told her that [Ibtihal’s]
acts weren’t good.” RP (Nov. 16, 2022) at 2060-61.
When asked if it bothered him that Ibtihal went to nightclubs, Yasir said no.
When asked if it bothered him that Ibtihal was looking into becoming a Christian, Yasir
replied, “It didn’t bother me for her. But when she took the kids to the church I told her,
[d]o not take the kids with you to church.” RP (Nov. 16, 2022) at 2063. Yasir denied
telling Suwaed that he would kill Ibtihal. Yasir also denied strangling and killing Ibtihal.
Verdict and Sentencing
Following trial, the jury found Yasir guilty of second degree murder and felony
harassment. The jury also entered a special verdict finding the aggravating circumstance
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that the murder involved a destructive and foreseeable impact on persons other than the
victim.
The trial court sentenced Yasir to an exceptional sentence of 300 months (56
months above the top of the standard range of 244 months) for the murder conviction
based on aggravating circumstance found by the jury and entered written findings in
support of the sentence. The court also imposed the mandatory victim penalty
assessment (VPA) and DNA collection fee.
Yasir timely appeals.
ANALYSIS
1. PROSECUTORIAL MISCONDUCT
Yasir contends that the prosecutor committed misconduct by introducing
irrelevant and inflammatory evidence of Iraqi culture and Islamic beliefs based on a
“manufactured” theory of the dispute between Yasir and Ibtihal. The State maintains that
there was significant evidence supporting its theory that Yasir considered Ibtihal’s
changing behaviors to be non-conforming and disrespectful toward him. The tensions
between the couple culminated when Ibtihal left Yasir a message that could only be fully
appreciated by understanding the former couple’s cultural and religious differences.
A. Prosecutorial Misconduct Standards
As a preliminary matter, we must determine the standard of review. Yasir
contends that the prosecutor committed race-based misconduct by introducing irrelevant
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and inflammatory evidence of Islamic beliefs and Iraqi culture, and argues that we should
apply the heightened scrutiny for race-based misconduct to his claims.
A criminal defendant is guaranteed the right to a fair trial by an impartial jury
under the Sixth and Fourteenth Amendments to the United States Constitution as well as
article I, section 22 of the Washington Constitution. State v. Zamora, 199 Wn.2d 698,
708, 512 P.3d 512 (2022). The promise of an impartial jury requires that the jury be
unbiased and unprejudiced. State v. Berhe, 193 Wn.2d 647, 658, 444 P.3d 1172 (2019).
“A defendant’s right to an impartial jury under article I, section 22 of the Washington
State Constitution is ‘gravely violate[d] . . . when the prosecutor resorts to racist
argument and appeals to racial stereotypes or racial bias to achieve convictions’—such
convictions undermine the integrity of our entire criminal justice system.” State v.
Bagby, 200 Wn.2d 777, 788, 522 P.3d 982 (2023) (alteration in original) (quoting State v.
Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011)). The scrutiny of race-based
prosecutorial misconduct is heightened to ensure against such a constitutional violation.
See Monday, 171 Wn.2d at 680.
While the Supreme Court has applied the heightened scrutiny of race-based
misconduct to allegations of nationality and ethnicity-based misconduct, it has not
expanded the heightened scrutiny to cultural or religion-based stereotypes. See Zamora,
199 Wn.2d at 715; Bagby, 200 Wn.2d at 790. While religion and culture are closely tied
to ethnicity, they are not the same and there may be reasons to apply a different standard.
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See State v. Kovalenko, 30 Wn. App. 2d 729, 546 P.3d 514 (2024) (applying non-race-
based standard to claim of religion-based prosecutorial misconduct). On the other hand,
there are valid reasons to expand the heightened scrutiny to these areas. See Cyra Akila
Choudhury, Racecraft and Identity in the Emergence of Islam as a Race, 91 U. CIN. L.
REV. 1 (2022). In this case, the State does not contest application of the heightened
standard. We therefore apply it without foreclosing further debate on the issue.
“[T]o prevail on a claim of race-based prosecutorial misconduct, the defendant
must demonstrate that the prosecutor’s conduct was both improper and prejudicial by
showing that [the prosecutor] flagrantly or apparently intentionally appealed to racial bias
in a manner that undermined the defendant’s credibility or the presumption of innocence.”
Bagby, 200 Wn.2d at 790 (emphasis in original). If the prosecutor’s conduct flagrantly or
apparently intentionally appealed to racial or ethnic bias, then their improper conduct is
considered per se prejudicial and reversal is required. Zamora, 199 Wn.2d at 715.
We analyze race-based misconduct using an objective observer standard and do
not consider the prosecutor’s subjective intent. Id. at 717, 716. “[W]e ask whether an
objective observer could view the prosecutor’s questions and comments as an appeal to
jurors’ potential prejudice, bias, or stereotypes in a manner that undermined the
defendant’s credibility or the presumption of innocence.” Bagby, 200 Wn.2d at 793
(footnote omitted). The “‘objective observer’ is an individual who is aware of the history
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of race and ethnic discrimination in the United States and [aware of] implicit,
institutional, and unconscious biases, in addition to purposeful discrimination.” Id. at n.7.
When applying this objective observer standard to the prosecutor’s remarks, “we
consider (1) the content and subject of the questions and comments, (2) the frequency of
the remarks, (3) the apparent purpose of the statements, and (4) whether the comments
were based on evidence or reasonable inferences in the record.” Bagby, 200 Wn.2d at
794.
Despite the heightened scrutiny applied to allegations of race-based misconduct,
not every mention of race or ethnicity will be viewed as an effort to appeal to implicit
racial bias. Zamora, 199 Wn.2d at 715. “In some cases, race or ethnicity may be
relevant or even necessary to discuss within the context of trial, e.g., to discuss motive for
committing race-based hate crime.” Id. But even when race and ethnicity are relevant to
the criminal charges, a prosecutor can cross the line by making assertions based on
stereotypes instead of evidence. See In re Pers. Restraint of Sandoval, 189 Wn.2d 811,
834, 408 P.3d 675 (2018). In addition, irrelevant comments or coded language that play
on stereotypes can trigger unconscious biases. Bagby, 200 Wn.2d at 794. “Coded
language often involves themes or euphemisms that evoke a conception of ‘us’ versus
‘them.’” Id.
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B. Application
With respect to the first two Bagby factors, there is no question that Iraqi culture
and religion, both Islamic and Christianity, were frequently discussed during trial. If
these comments were not based on evidence that Yasir adhered to these customs and
beliefs, then the comments would be improper and prejudicial. Similarly, if the
comments and evidence were introduced to discredit Yasir then they would likewise be
inadmissible.7
Yasir contends that application of the next two Bagby factors support his claim of
misconduct. He focuses on evidence of the couple’s religious differences and asserts that
Ibtihal’s conversion to Christianity and her decision to stop covering her hair were not
points of tension between the couple but were nevertheless interjected by the prosecutor
to play into anti-Muslim bias. We disagree.
The comments and questions by the prosecutor were based on evidence and
introduced to show motive. The State maintained that Yasir believed Ibtihal’s changing
behaviors failed to conform to Iraqi culture and Islamic beliefs and were disrespectful,
insulting, and reflected poorly on him. The prosecutor’s comments and questions
throughout the trial about Iraqi culture were based on evidence that Ibtihal’s behaviors
7 Under ER 610, “[e]vidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by reason of their nature the
witness’ credibility is impaired or enhanced.”
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were viewed by Yasir and others close to him as failing to conform to Iraqi culture. These
behaviors became the topic of rumors and gossip. The non-conforming behavior included
drinking, smoking, going to bars, dating, driving, working, not covering her hair, and
attending a Christian church. While Yasir’s appeal focuses primarily on evidence of the
couples’ religious differences, the State maintained that Ibtihal’s conversion to
Christianity and decision to wear her hair uncovered was part of the larger picture.
Yasir himself made it clear that his beliefs and actions were influenced by his
culture and religion. The day after Ibtihal’s murder, Yasir explained to police that
Ibtihal’s outburst and name calling was unacceptable because “our culture is different.”
Ex. P122 at 17. He further explained both in his interview and while testifying at trial
that Ibtihal’s perception of freedom following divorce was incorrect and childlike,
testifying rhetorically “Why would she need freedom if I didn’t even put boundaries
around her?” RP (Nov. 16, 2022) at 2040.
Yasir was aware of and disapproved of Ibtihal’s changing behavior, including her
conversion to Christianity. He told Ibtihal’s friend, Shaker, that Ibtihal’s changes did not
“fit with his rituals and culture.” RP (Nov. 14, 2022) at 165-66. He exclaimed to his
friend, Suwaed, that Ibtihal had become an “unbeliever of God.” RP (Nov. 16, 2022) at
2066. Jameel testified that Ibtihal was attending church with her in 2017 but stopped
attending in 2018. She explained that Yasir knew Ibtihal was attending a Christian
church. Yasir testified that he told Ibtihal to stop taking their children to church.
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Despite this evidence, Yasir contends that the prosecutor’s theory was not based
on the evidence but instead was manufactured. He argues that the prosecutor took
Yasir’s comments to police out of context to support its theory, pointing to Yasir’s
testimony at trial that his comments about Ibtihal’s childlike understanding of freedoms
was a reference to her misconception of financial freedoms, not religious or cultural
freedom. We disagree. While Yasir provided this explanation during trial, the State’s
interpretation of his comments to police, as a reference to more than economic freedom,
was objectively reasonable.
Next, Yasir argues that the prosecutor over-emphasized the couple’s religious
differences, improperly used the term “Americanized” when referring to Ibtihal’s
behavior, made improper references to Iraqi law, and introduced irrelevant evidence. We
consider these arguments in turn.
Yasir argues that the prosecutor’s focus on Ibtihal’s employment at UGM was
irrelevant and the subsequent argument in closing that this job was “the beginning of the
end” was inflammatory. RP at 2174. In closing, the prosecutor began by summarizing a
timeline of events. She referenced Yasir’s statements during his interview and argued that
Ibtihal misunderstood her freedoms by drinking, driving, working, and wearing the clothes
she wanted to wear. The prosecutor then summarized evidence that Ibtihal began working
in late October at a “religious organization” and participated in daily prayers and
devotions at work. The prosecutor characterized Ibtihal’s new job as “the beginning of
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the end,” noting that tensions between Ibtihal and Yasir began to escalate quickly
thereafter. RP at 2174. She pointed out that within weeks of Ibtihal’s new job, the couple
fought at a hookah bar and Yasir declared to Suwaed that Ibtihal “no longer followed
God.” RP at 2175. The evidence of Ibtihal’s employment was relevant and the inference
during closing argument was reasonable and based on the evidence. An objective
observer could not view the prosecutor’s focus on Ibtihal’s employment with a Christian
organization as an appeal to bias or prejudice against Muslims or persons from Iraq.
Next, Yasir contends that the prosecutor’s use of the term “Americanized” was
improper. Throughout the course of the trial, the prosecutor used the term three times.
Once during opening argument when describing the evidence of motive and twice during
questioning of witnesses. When the witnesses were asked if they would characterize
Ibtihal as becoming more “Americanized,” both witnesses disagreed, although one
witness suggested that Ibtihal was “becoming more aware.” On both occasions, the
prosecutor moved on with questioning.8 The term was not used in closing argument. We
agree that under different circumstances, the term “Americanized” could be used
8 While the term “Americanized” has recognized dictionary definitions as “to
make American,” “to cause to acquire traits or characteristics distinctively or conceived
as distinctively American,” and “to bring into close conformity with American national
customs and institutions” (Webster’s Third New International Dictionary 69 (1993)), it
may have different meaning for different people. At one point during Suwaed’s
disagreement with Yasir, she insulted him by telling him that he is becoming more
Americanized for calling the police.
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improperly to interject an “‘us’ versus ‘them’” bias. See Bagby, 200 Wn.2d at 794. In
this case, however, the term was used to summarize relevant evidence of motive, and
particularly whether the couple disagreed on the freedoms available to Ibtihal in the
United States. An objective observer could not view the use of this term as an appeal to
bias or prejudice against Muslims or persons from Iraq.
Yasir contends that evidence that Ibtihal’s nonconforming behavior would have
serious consequences in Iraq was irrelevant. Several of the couple’s friends testified that
Ibtihal’s actions could have consequences based on Iraqi culture. Nahi testified that
daughters and wives could be murdered in Iraq for dating and drinking alcohol. Zainab
testified that the pregnancy rumor would impact Ibtihal’s reputation. Suwaed testified
that the rumors were serious in her culture. Husamuldeen Suwaed testified that the
rumors would be a big deal in his culture and in Iraq and could result in tribal
consequences in Iraq.
These consequences were tied directly to the escalating tensions between Ibtihal
and Yasir. After Ibtihal confronted Yasir’s friend, al-Karawi, in the parking lot and
slapped him with her slipper, Yasir offered to hire sheikhs in Iraq to hold a tribal trial and
teach Ibtihal a lesson. He then left two messages with Ibtihal’s parents in Iraq, telling
them to call off their daughter or else Yasir would “do things and she is going to lose
things she doesn’t know she’ll lose.” Ex. P96 at 2. When Ibtihal learned of these
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No. 39421-2-III
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messages, she left an angry message for Yasir, threatening to humiliate and emasculate
him with her shoe.
The foregoing questions and comments were based on relevant evidence and
reasonable inferences, were not generalized statements but rather tied directly to Yasir
and were introduced to show motive. An objective observer could not view these
questions and comments as an appeal to bias or prejudice against Muslims or persons
from Iraq.
Finally, Yasir contends that the prosecutor’s introduction of a picture from Yasir’s
phone, of the couple’s daughter, T.D., wearing a traditional Islamic dress and praying,
was irrelevant and introduced for improper purposes. We agree that the photograph was
irrelevant. The photograph was part of a demonstrative slide show created by Detective
Turman to show a timeline of events from the time Yasir and Ibtihal were married up to
Ibtihal’s death. The slide show consisted of 108 slides and included records gathered
from Yasir’s social media accounts, cell phone, and iCloud account. Eight slides
contained records from January 9, 2020, the day Ibtihal confronted al-Karawi in the
parking lot. The photograph of T.D. was taken on this date and pulled from Yasir’s
phone. When asked to explain the significance of the photograph, Detective Turman
indicated his opinion would be speculation which drew an objection from Yasir’s
attorney that was sustained. Otherwise, the State failed to tie this evidence to anything
relevant at the trial. Instead, the detective’s only explanation for the photo was that “it
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appeared out of [the] ordinary” from other pictures of T.D. and from the way she
presented herself in court. RP (Nov. 16, 2022) at 1954.
As we noted above, even when evidence of culture and religion is generally
relevant to show motive, a prosecutor can still cross the line by introducing evidence that
plays into stereotypes or biases. See Sandoval, 189 Wn.2d at 834. While the photograph
of T.D. was irrelevant, we do not find that it was an attempt to “appeal to [the] jurors’
potential prejudice, bias, or stereotypes in a manner that undermined [Yasir’s] credibility
or the presumption of innocence.” Bagby, 200 Wn.2d at 793. The introduction of the
photograph is more concerning than the other evidence of culture and religion because it
was irrelevant. Still the photograph was shown once, was based on evidence, and was
introduced as part of several other relevant records created on Yasir’s phone at the same
time.
After applying an objective observer standard to the comments and evidence, we
hold that Yasir did not meet his burden of showing that the prosecutor engaged in ethnic
or religious based misconduct.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
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In the unpublished portion of the opinion, we address Yasir’s remaining
arguments.
2. SPEEDY TRIAL
Yasir contends the trial court violated CrR 3.3 by granting two motions for
continuances brought by the State over his oral objections. He argues the State did not
make a sufficient record to support its requests and that reversal is required. We decline
to review this issue because Yasir did not preserve a rule-based speedy trial objection
below and fails to provide this court with calculations showing that his trial was set
beyond the speedy trial period.
A. Additional Background
Yasir was arraigned on March 2, 2020. On that day, the parties filed a stipulated
agreement setting trial for August 17, 2020. On July 31, 2020, the parties filed an agreed
motion to continue trial to January 25, 2021, citing COVID-19 and the parties’ needing
more time to prepare for trial.
In November 2020, the State moved for a continuance to April 2021. In support
of its motion, the State cited the fact that the prosecutor who had been assigned to the
case was on leave due to COVID-19 exposure, the complexity of the case, outstanding
additional investigation related to cell phone data and voice identification, pending work
to identify expert witnesses with cell phone data and Iraqi culture dynamics, the fact that
no witness list had been filed by either party, and the fact that no defense witness
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interviews had been requested or conducted. Defense counsel objected, arguing that he
had not provided a witness list because he was waiting for the State’s list and that the
State had ample time to conduct its investigation and find expert witnesses. Defense
counsel requested that trial start in January, or that Yasir be released from jail. The court
granted the State’s motion, but continued trial only to February 1, 2021 (a continuance of
11 days), based on its finding of good cause due to the reassignment of prosecutors and
the COVID-19 exposure.
On January 14, 2021, the court signed an agreed scheduling order continuing trial
to May 24, 2021, finding good cause based on the ongoing investigation of a homicide
case as well as exposure to COVID-19.
On April 8, 2021, the State again moved to continue trial from May 24 to July 12,
2021. In support of the request, the prosecutor cited a family funeral, an additional
search warrant that was recently served, the complexity of the ongoing investigation into
the cell phone data, and working with the FBI to translate the majority of the evidence,
which was in Arabic. Again, defense counsel objected on the record, arguing that the
State should have been ready by that time, the State’s additional discovery would likely
require more continuances, and a July trial date created a scheduling conflict for defense
counsel. Defense counsel asked the court to maintain the May trial date and to impose a
discovery deadline. The court granted the continuance, finding good cause based on the
complex nature of the case and the vast discovery in a foreign language. The court
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ordered the parties to confer on an agreeable trial date, which was ultimately continued to
September 20, 2021.9
B. CrR 3.3 standards
The decision to grant or deny a continuance is reviewed for an abuse of discretion.
State v. Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). “Violations of CrR 3.3 are
not constitutionally based and cannot be raised for the first time on appeal.” State v.
MacNeven, 173 Wn. App. 265, 268, 293 P.3d 1241 (2013); State v. Smith, 104 Wn.2d
497, 508, 707 P.2d 1306 (1985); RAP 2.5(a). We review alleged violations of CrR 3.3 de
novo. Kenyon, 167 Wn.2d at 135; State v. Walker, 199 Wn.2d 796, 800, 513 P.3d 111
(2022).
Under Washington’s time-for-trial rule, CrR 3.3, a defendant who is detained in
jail must be brought to trial within 60 days of arraignment. CrR 3.3(b)(1)(i), (c)(1).
Certain time periods are excluded when computing the time for trial. Continuances
granted by the court are excluded from the time for trial. CrR 3.3(e)(3), (f). The court
may grant a continuance on its own motion or the motion of a party when the
administration of justice so requires and the defendant will not be prejudiced in the
9 The parties requested additional continuances that were granted and are not
challenged on appeal. RP (Sept. 2, 2021) at 20-31 (court grants defense counsel’s motion
for a continuance to March 21, 2022); Clerk’s Papers (CP) at 457. RP (Oct. 7, 2021) at
4-14 (court grants defense counsel’s motion for a continuance to July 5, 2022); CP at
458. RP (June 17, 2022) at 3-14 (court continues trial to October 31, 2022); CP at 460.
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No. 39421-2-III
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presentation of their defense. CrR 3.3(f)(2). “The court must state on the record or in
writing the reasons for the continuance.” Id. “Unavoidable or unforeseen circumstances
affecting the time for trial beyond the control of the court or of the parties” are also
excluded in calculating the time for trial. CrR 3.3(e)(8).
If a defendant is not brought to trial within the applicable time period, the court
must dismiss the charges with prejudice, provided the defendant takes specific steps to
preserve the issue. CrR 3.3(h), (d)(3). Specifically,
[a] party who objects to the date set upon the ground that it is not within the
time limits prescribed by this rule must, within 10 days after the notice is
mailed or otherwise given, move that the court set a trial within those time
limits. Such motion shall be promptly noted for hearing by the moving party
in accordance with local procedures. A party who fails, for any reason, to
make such a motion shall lose the right to object that a trial commenced on
such a date is not within the time limits prescribed by this rule.
CrR 3.3(d)(3) (emphasis added). The objection to the trial date must be made in writing.
See State v. Chavez-Romero, 170 Wn. App. 568, 581, 285 P.3d 195 (2012).
C. Analysis
Though Yasir contends the trial court violated his time-for-trial right on appeal, he
does not provide any analysis or calculation showing that the challenged continuances
resulted in his trial being set outside the CrR 3.3 time-for-trial period. We will not
perform these calculations for him. His briefing is therefore insufficient for this court to
determine whether the trial court actually set his trial outside the time-for-trial period.
“Passing treatment of an issue or lack of reasoned argument is insufficient to merit
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judicial consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290
(1998).
Additionally, Yasir failed to preserve this issue and lost the right to object by
failing to comply with CrR 3.3(d)(3). While Yasir objected to the reasons for the State’s
continuances, he did not object on the basis that a continuance would place the trial
outside the time for trial prescribed by CrR 3.3. He raises this CrR 3.3 violation for the
first time on appeal, but we generally decline review of issues raised for the first time on
appeal. See RAP 2.5. Moreover, Yasir fails to argue or show that he complied with CrR
3.3(d)(3) by filing written motions within 10 days of his oral objections and noting those
motions for hearing. Because he fails to show he complied with CrR 3.3(d)(3), he lost
the right to object on the basis that trial was set outside of the time-for-trial period.
3. SUFFICIENCY OF EVIDENCE ON HARASSMENT CONVICTION
Yasir contends insufficient evidence supported the harassment conviction because
the State failed to provide evidence showing that Ibtihal knew about his threat to kill her.
The State concedes. We agree with the parties’ position.
Due process mandates that the State must prove every element of a crime beyond a
reasonable doubt to secure a conviction. State v. Aver, 109 Wn.2d 303, 310, 745 P.2d
479 (1987); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. When reviewing a
challenge to the sufficiency of the evidence, we ask “whether, after viewing the evidence
in the light most favorable to the State, 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. Additionally, “[a] claim
of insufficiency admits the truth of the State’s evidence and all inferences that reasonably
can be drawn therefrom.” Id. If evidence is insufficient to prove an element of the crime,
the remedy is reversal of the conviction and dismissal of the charge with prejudice. State
v. Smith, 155 Wn.2d 496, 505-06, 120 P.3d 559 (2005). “The sufficiency of the evidence
is a question of constitutional law that we review de novo.” State v. Rich, 184 Wn.2d
897, 903, 365 P.3d 746 (2016).
A person is guilty of felony harassment if, without lawful authority, the person
knowingly communicates a threat to kill another person, the person making the threat
consciously disregards a substantial risk that the communication will be viewed as
threatening violence, and the person by words or conduct places the person threatened in
reasonable fear that the threat will be carried out. RCW 9A.46.020(1)(a), (b), (2)(b)(ii);
State v. Calloway, 31 Wn. App. 2d 405, 416-17, 550 P.3d 77 (2024). Our Supreme Court
has interpreted this statute, in part, to require that the person threatened knows/knew
about the threat. State v. Trey M., 186 Wn.2d 884, 906, 383 P.3d 474 (2016).
The parties acknowledge our Supreme Court’s interpretation of the harassment
statute as requiring the victim to know about the threat that forms the basis of the
harassment charge. The parties also agree that the harassment charge was based on the
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threat Yasir made when he told Suwaed that he would kill Ibtihal even if it took him ten
years. RP (Nov. 15, 2022) at 1777 (Suwaed testified that Yasir threatened to kill Ibtihal);
RP (Nov. 2, 2022) at 715-18; RP (Nov. 17, 2022) at 2192 (prosecutor states in closing,
“[s]o that threat to kill Ibtihal made to [Suwaed] is the harassment, threat to kill.”).
Finally, the parties agree that at trial Suwaed denied telling Ibtihal of this threat, and that
as a result, there is no evidence that Ibtihal knew or found out about the threat Yasir made
in the presence of Suwaed. Accordingly, insufficient evidence supported the harassment
conviction.
We reverse the felony harassment conviction and remand with directions for the
trial court to vacate Yasir’s conviction and dismiss the charge with prejudice.
Because we reverse the conviction for harassment with prejudice, we decline to
address Yasir’s alternate argument that the jury instructions failed to properly instruct the
jury on the elements of felony harassment following the United States Supreme Court’s
decision in Counterman v. Colorado.10
4. EVIDENTIARY RULINGS ON IBTIHAL’S FEAR
Yasir challenges the admission of certain evidence introduced to show Ibtihal’s
fear, arguing it was irrelevant and prejudicial. Specifically, he points to evidence that
Ibtihal feared Yasir based on rumors about Ibtihal’s behaviors and the message Ibtihal
10 600 U.S. 66, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023).
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sent to Yasir three days before her death. Yasir also challenges Nahi’s testimony about
the possible consequences of the rumored behavior in Iraq. For various reasons we
decline to address these arguments.
A. Ibtihal’s Fear from Rumors
The evidence of Ibtihal’s fear was introduced to support the harassment charge,
which required the State to prove that Yasir not only threatened Ibtihal, but she feared
that he would carry out the threat.
In his opening brief, Yasir argues that Nahi’s testimony, that Ibtihal told him she
feared Yasir because of rumors Yasir was spreading about her behavior, was irrelevant to
the harassment charge. Yet, when the issue was raised at trial, Yasir’s attorney
acknowledged that the evidence was relevant to the harassment charge. His objection
was that the evidence was hearsay and prejudicial. The court determined that the
statements by Ibtihal about her subjective fear were relevant and fell within a hearsay
exception. With respect to prejudice, the court noted that if counsel believed the
evidence was unduly prejudicial it could move to sever the trial, but otherwise the
evidence had already come in through another witness. Additionally, the court noted that
the jury would be instructed that it could consider evidence of Ibtihal’s fear for the
purpose of evaluating only the harassment charge.
Despite the State’s concession on appeal that the harassment conviction must be
reversed for insufficient evidence, Yasir’s reply brief maintains that the evidence of
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Ibtihal’s fear was irrelevant and prejudicial. For two reasons, we decline to review this
issue. First, the relevance argument he raises on appeal was not raised or preserved
below. RAP 2.5(a). In addition, as to prejudice, Yasir fails to articulate why we should
review the prejudicial effect of evidence that was limited to charges that will be
dismissed on remand.
B. Ibtihal’s Message to Yasir
Yasir challenges the trial court’s admission of Ibtihal’s insulting message to Yasir,
claiming that it was likewise irrelevant to the harassment charge. We also decline to
address this argument. The trial court admitted Ibtihal’s message to Yasir for two
reasons: to show her fear and to show the effect on Yasir relevant to the murder charge.
Yasir fails to address the second reason for introducing the message.
During pretrial motions, the State moved to admit the voice message Ibtihal sent to
Yasir three days before her death. The prosecutor argued the message was admissible
under two theories. First, it was not hearsay because it was offered under ER 801 to
show the effect it had on the listener—Yasir. The prosecutor also asserted that the
message was relevant to the harassment charge because prior to the message, Yasir made
threats to kill Ibtihal and that, therefore, “her fear that this voice mail took him over the
edge and will result in her death is highly relevant to her state of mind.” RP (Oct. 20,
2022) at 211. Defense counsel objected, and the court reserved ruling on the motion.
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Just before opening statements, the court addressed the State’s motion to admit
evidence of Ibtihal’s insulting voice message to Yasir. The court ruled that Ibtihal’s
message could be introduced to show the effect on the listener, Yasir, because there was
testimony from Yasir’s friend that Yasir appeared very upset about the message.
However, the court ruled that a portion of the voice message, in which Ibtihal referred to
her being assaulted by Yasir, needed to be redacted because the prejudicial effect of that
portion outweighed its probative value.
On appeal, Yasir contends that the message was not relevant to show Ibtihal’s fear
but fails to argue why the court’s alternative reason for admitting the message was an
abuse of discretion. Because the alternative reason is unchallenged and supports the
court’s decision, we decline to address this evidentiary challenge.
C. Hamid Nahi’s Testimony About Iraqi Consequences
Yasir also challenges Nahi’s testimony about Iraqi culture and laws. We decline
to address this challenge because it was not preserved below. See RAP 2.5(a).
During pretrial motions, the State moved in limine to permit lay witness testimony
about Iraqi culture under ER 701. The prosecutor asserted that the lay witnesses,
including Nahi, a friend of the Darraji’s and a fellow refugee from Iraq, would testify
about Iraqi culture and how the Spokane Iraqi community would perceive certain facts
and statements at issue in this case. Defense counsel responded that a foundation would
need to be laid because different witnesses came from different tribes and “[d]ifferent
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tribes have different cultural beliefs.” RP (Oct. 20, 2022) at 208. Defense counsel next
stated, “[s]o I’m not objecting and saying they can’t do that because I—I don’t think
that’s a proper objection,” then seemed to object on foundational and procedural grounds,
explaining the problem with determining how each witness had knowledge of Iraqi
culture or the Darrajis’ tribe.
The trial court granted the State’s motion, reasoning “there’s huge cultural
differences between the United States and Iraq, and a jury may not understand why
someone from Iraq would respond a certain way or do something by certain means. So
information from someone from that culture may assist the jury.” RP (Oct. 20, 2022) at
209. The court limited the testimony to someone who could demonstrate familiarity with
the general culture that Yasir was from and the evidence could not be cumulative.
During trial, Nahi testified about his contact with Ibtihal and also about Iraqi laws
and culture:
Q Okay.
Did [Ibtihal] tell you about any rumors she was concerned about that
day?
A Yes.
Q What specific rumors was she worried about?
A So when I asked her about her life, she says she’s really concerned this
time, and she told me that there is a rumors [sic] been throwing about
her converted to Christianity. Another rumor is that she’s basically
smoking meth, going dancing in the nightclubs, drinking alcohol, and
but—dating, all of that stuff.
Q Okay.
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And did she tell you where she heard these rumors about herself?
A She says—she stated that Yasir was telling him and other group of his
friends were saying those rumors against her.
Q Okay.
So in Iraq would rumors like this be a big deal about Christianity,
drug usage, dancing, things like that?
A Yes, sir. It will be—basically will be a death penalty. In Iraq . . . it’s a
law. Law goes on females only, and basically you—you can murder
your wife, your daughter, whoever, if they went and dated somebody or
if they had alcohol or something. They call it wash of shame, and it—
you can—you don’t even go to jail for it. You probably will go for like
maybe one or six months if you did it in public.
Q And was she worried about these rumors going back to Iraq specifically?
A Correct. Yes, sir. So in the beginning, you know, she was telling me
previously, and it was kind of more like she thought it was a bluff, but
then that day, when we met in January at WinCo, she felt more
threatened. And the reason she says, because now these rumors is
added and it wasn’t just like I’m going to punch you in the face or
something. It was more like I’m doing meth, I’m drinking alcohol,
dancing in the nightclubs. So that basically justifying the—you know,
that’s a death penalty for me.
Q So based on these rumors, did Ibtihal express fear to you that Yasir
Darraji was going to kill her?
A Yes, sir.
RP (Nov. 9, 2022) at 1535-37.
Following this testimony Yasir objected on the grounds that Nahi’s testimony
attributed statements to Yasir in violation of the court’s earlier ruling. The court
overruled the objection, noting that it had precluded Nahi from repeating any direct
threats made by Yasir. Yasir did not object to Nahi’s comments about Iraqi culture or
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Ibtihal’s fears based on that culture. See ER 103(a)(1); RAP 2.5(a). Thus, the issue
raised on appeal was not preserved below.
5. JURY UNANIMITY ON AGGRAVATING SENTENCING FACTORS
Yasir contends that he was deprived his right to jury unanimity on the “destructive
and foreseeable impact” aggravating sentencing factor. He argues that the jury could
have convicted him of the aggravating factor without unanimously agreeing on the
persons who were impacted by his crime. He contends that the prosecutor first argued
that the aggravating factor applied only to Yasir’s children, but later argued that the
factor applied to the community, Ibtihal’s family and friends, and the firefighters who
pulled her body out of the car.
As a threshold issue, Yasir acknowledges that he raises this issue for the first time
on appeal. However, he cites to State v. Crane,11 for the proposition that this error is one
of constitutional magnitude that may be raised for the first time on appeal. The State
contends that Yasir fails to demonstrate that this error is reviewable under RAP
2.5[(a)(3)] as a manifest error affecting a constitutional right. We agree with the State
and decline review of this issue; Yasir fails to show the error is one of constitutional
dimension or manifest.
11 116 Wn.2d 315, 325, 804 P.2d 10 (1991).
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We generally decline to review claims of error not raised in the trial court. RAP
2.5. However, an exception to that rule permits a party to raise a “manifest error
affecting a constitutional right” for the first time on appeal. RAP 2.5(a)(3). “To meet
RAP 2.5(a)[(3)] and raise an error for the first time on appeal, an appellant must
demonstrate (1) the error is manifest, and (2) the error is truly of constitutional
dimension.” See State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Yasir fails to
meet his burden of showing either element.
“In analyzing the asserted constitutional interest, we do not assume the alleged
error is of constitutional magnitude.” Id. “We look to the asserted claim and assess
whether, if correct, it implicates a constitutional interest as compared to another form of
trial error.” Id.
Generally, the United States and Washington constitutions guarantee a criminal
defendant the right to a unanimous verdict. U.S. CONST. amend. VI, XIV; WASH.
CONST. art. I, § 21; Ramos v. Louisiana, 590 U.S. 83, 92-93, 140 S. Ct. 1390, 206 L. Ed.
2d 583 (2020); State v. Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017). A
unanimity instruction ensures that “a defendant may be convicted only when a unanimous
jury concludes that the criminal act charged in the information has been committed.”
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984) (emphasis added). In
addition, “[t]he jury’s verdict on the aggravating factor must be unanimous.” RCW
9.94A.537(3).
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However, Yasir’s argument pertains to the facts underlying the aggravating
factor—the other persons his crime had a destructive and foreseeable impact on. In
support of his argument, he cites to RCW 9.94A.537(6) for the proposition that the jury’s
verdict on the aggravating factor must be unanimous. That statute provides:
If the jury finds, unanimously and beyond a reasonable doubt, one or more
of the facts alleged by the state in support of an aggravated sentence, the
court may sentence the offender pursuant to RCW 9.94A.535 to a term of
confinement up to the maximum allowed under RCW 9A.20.021 for the
underlying conviction if it finds, considering the purposes of this chapter,
that the facts found are substantial and compelling reasons justifying an
exceptional sentence.
RCW 9.94A.537(6).
Yasir provides no authority in support of the proposition that the above cited
statute confers on him a constitutional right to jury unanimity on the facts underlying the
aggravating factor charged and found. “Where no authorities are cited in support of a
proposition, we are not required to search out authorities, but may assume that counsel,
after [a] diligent search, has found none.” State v. Manajares, 197 Wn. App. 798, 810,
391 P.3d 530 (2017). Thus, Yasir fails to show this issue is one of constitutional
dimension.
Yasir also fails to show that the error is manifest. An error is manifest when a
defendant shows actual prejudice, which requires a plausible showing of practical and
identifiable consequences during trial. State v. WWJ Corp., 138 Wn.2d 595, 602-03, 980
P.2d 1257 (1999). “[T]he focus of the actual prejudice [prong] must be on whether the
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error is so obvious on the record that the error warrants [our] review.” O’Hara, 167
Wn.2d at 99-100. “[T]o determine whether an error is practical and identifiable, the
appellate court must place itself in the shoes of the trial court to ascertain whether, given
what the trial court knew at that time, the court could have corrected the error.” O’Hara,
167 Wn.2d at 100.
It is not obvious from the record that the trial court erred by failing to give a
unanimity instruction on the facts underlying the aggravating factor. In addition, Yasir
fails to cite any case that supports his argument that a jury unanimity instruction was
required in this situation. The cases he does cite do not pertain to jury unanimity on the
facts underlying an aggravating factor. See, e.g., State v. Kitchen, 110 Wn.2d 403, 756
P.2d 105 (1988) (concerning multiple acts cases and constitutional harmless error
analysis); State v. Espinoza, 14 Wn. App. 2d 810, 815, 474 P.3d 570 (2020) (concerning
two crimes charged in a single count using “and/or” to identify the victim); Petrich, 101
Wn.2d 566 (concerning a multiple acts case).
Yasir also cites to State v. Allen12 for the proposition that aggravating factors are
elements of the offense that the State must prove beyond a reasonable doubt. But that
case is inapplicable to his argument about jury unanimity on the facts underlying
aggravating factors under RCW 9.94A.535(3). In Allen, Washington’s Supreme Court
12 192 Wn.2d 526, 538, 431 P.3d 117 (2018).
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held that “RCW 10.95.020 aggravating circumstances are elements of the offense of
aggravated first degree murder for double jeopardy purposes.” Id. at 544. The Allen
court’s decision did not pertain to aggravating factors in RCW 9.94A.535(3), and the
Allen court did not discuss jury unanimity, much less unanimity on the facts underlying a
charged aggravating factor.
We decline review of this unpreserved issue because Yasir fails to show that this
issue is a manifest error affecting a constitutional right.
6. VAGUENESS CHALLENGE TO AGGRAVATING SENTENCING FACTOR
Yasir contends that the “foreseeable and destructive impact” aggravating factor is
unconstitutionally vague as applied to his case. He requests that we do not follow a
Washington’s Supreme Court case, State v. Baldwin,13 where the Court held that the
void-for-vagueness doctrine does not apply to aggravating factors. He contends that
subsequent United States Supreme Court decisions render Baldwin obsolete. The State
counters, arguing that all three divisions of this court have rejected void-for-vagueness
challenges to the foreseeable and destructive impact aggravator. We continue to follow
Washington precedent and reject Yasir’s vagueness challenge.
The due process clause of the Fourteenth Amendment requires that statutes afford
citizens a fair warning of prohibited conduct. City of Spokane v. Douglass, 115 Wn.2d
13 150 Wn.2d 448, 459, 78 P.3d 1005 (2003).
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171, 178, 795 P.2d 693 (1990). A vagueness analysis encompasses two due process
concerns: (1) criminal statutes must be specific enough to provide citizens with fair
notice of what conduct is prohibited, and (2) statutes must provide ascertainable
standards of guilt to protect against arbitrary enforcement. State v. Baldwin, 150 Wn.2d
448, 458, 78 P.3d 1005 (2003). When assessing vagueness, we ask whether a person of
reasonable understanding must guess at the statute’s meaning. State v. Murray, 190
Wn.2d, 727, 736, 416 P.3d 1225 (2018).
In Baldwin, Washington’s Supreme Court rejected a void for vagueness challenge
to Washington’s sentencing guideline statutes, reasoning that because “[s]entencing
guidelines do not inform the public of the penalties attached to a criminal conduct nor do
they vary the statutory maximum and minimum penalties assigned to illegal conduct by
the legislature . . . the due process considerations that underlie the void-for-vagueness
doctrine have no application in the context of sentencing guidelines.” 150 Wn.2d at 459.
As a result, the Baldwin court rejected the defendant’s vagueness challenge to the two
statutory aggravators charged in the case. Id. Under Baldwin, a defendant cannot bring
vagueness challenges against aggravating factors in RCW 9.94A.535(3). State v. Brush,
5 Wn. App. 2d 40, 59, 425 P.3d 545 (2018).
Then, in 2004, the United States Supreme Court decided Blakely v. Washington,
holding that Washington’s Sentencing Reform Act of 1981, ch. 9.94A RCW, was
unconstitutional. 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Under
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Blakely, a trial court’s sentencing authority is limited to the maximum sentence the court
could impose without making any additional findings and any fact that increases the
sentence beyond the standard range must be found by a jury beyond a reasonable doubt.
Id. at 303-04.
To comply with Blakely, Washington’s legislature amended Former RCW
9.94A.120(2), recodified as RCW 9.94A.535. LAWS OF 2005, ch. 68, § 1. The revised
statutes make clear that a defendant has a right to a sentence within the standard range
corresponding with the crime of conviction, unless a jury finds one or more statutory
aggravating factors beyond a reasonable doubt. RCW 9.94A.537(3).
In 2017, the United States Supreme Court rejected a vagueness challenge to
advisory federal sentencing guidelines. Beckles v. United States, 580 U.S. 256, 265, 137
S. Ct. 886, 197 L. Ed. 2d 145 (2017). The Court reaffirmed that a defendant is not
permitted to bring a vagueness challenge against the sentencing guidelines because “they
merely guide the exercise of a court’s discretion in choosing an appropriate sentence
within the statutory range.” Id. at 263. However, the Court noted that “laws that define
criminal offenses and laws that fix the permissible sentences for criminal offenses” are
“subject to vagueness challenges.” Id. at 262, 261.
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Washington’s Supreme Court has not overturned Baldwin and the case remains
good law. We are generally bound to follow Washington Supreme Court precedent.
1000 Virginia Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 590, 146 P.3d 423 (2006).
And, as the State points out, all three divisions of this court still follow Baldwin. See,
e.g., Brush, 5 Wn. App. 2d 40 (holding that Baldwin remains good law because the
aggravating factors in RCW 9.94A.535(3) do not limit a sentencing court’s discretion,
did not fix the sentence, or specify a sentence that had to be imposed, and accordingly,
rejecting the defendant’s vagueness challenge to the aggravator); State v. DeVore, 2 Wn.
App. 2d 651, 660-66, 413 P.3d 58 (2018) (holding that aggravating factors in RCW
9.94A.535(3) do not fix sentences or the ranges of sentences for any crime and do not
vary any statutory minimum or maximum sentence; thus, Baldwin remains good law and
the defendant was precluded from challenging the aggravating factor as void for
vagueness); State v. Lloyd, No. 75111-5-I, slip op. at 54-55 (Wash. Ct. App. May, 21,
2018), (unpublished), https://www.courts.wa.gov/opinions/pdf/751115.pdf (concluding
that Baldwin is not overruled and rejecting a vagueness challenge to an aggravating factor
because “aggravating factors merely guide the sentencing court’s decision to impose an
exceptional sentence”).
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Accordingly, in State v. Santos,14 this court’s recent case, the majority rejected a
void for vagueness challenge to the same aggravating factor Yasir challenges in this case,
relying on State v. Baldwin,15 State v. Brush,16 and State v. DeVore.17 The Santos
majority rejected the same arguments advanced by Yasir in this appeal. Compare Slip
op. 32-36, with Br. of Appellant at 90-93.
Judge Pennell dissented on this issue and concluded that aggravating factors are
amenable to vagueness challenges. Slip op. at 44-49 (Pennell, J. dissenting). She
reasoned that, because post-Blakely a defendant now has a vested right to a standard
range sentence unless an aggravating factor is proved beyond a reasonable doubt, “due
process should require that aggravators presented to a jury not be vague.” Slip op. at 47.
Judge Pennell then proceeded to analyze whether the “destructive and foreseeable
impact” aggravating factor was vague and concluded that it was not. Slip op. at 49-51.
Yasir requests that we follow Judge Pennell’s dissent in Santos. While Judge
Pennell’s dissent is well reasoned, this court declines to follow it. We are bound by
Baldwin. Thus, we conclude that Yasir is precluded from challenging the “destructive
and foreseeable impact” aggravating factor as vague.
14 No. 36069-5-III (Wash. Ct. App. Apr. 30, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/360695_2_unp.pdf.
15 150 Wn.2d 448, 78 P.3d 1005 (2003).
16 5 Wn. App. 2d 40, 425 P.3d 545 (2018).
17 2 Wn. App. 2d 651, 413 P.3d 58 (2018).
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7. SENTENCING ERRORS
Yasir raises several sentencing errors on appeal, including a challenge to the
exceptional sentence imposed by the court and the imposition of legal financial
obligations. Because we vacate his conviction for felony harassment and remand for
resentencing, we decline to consider these arguments. Yasir is free to raise them at
resentencing.
8. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)
Yasir raises four additional arguments in his SAG. We address these in turn.
First, Yasir contends for the first time on appeal, that the information was
defective, specifically with regard to the destructive and foreseeable impact on other
persons aggravating factor under RCW 9.94A.535(3)(r). The amended information
charged count I as follows:
COUNT I: MURDER IN THE SECOND DEGREE, committed as follows:
That the defendant, YASIR DARRAJI, in the State of Washington, on or
about January 30, 2020, while committing or attempting to commit the
crime of Second Degree Assault by strangulation, and in the course of and
in furtherance of said crime and in immediate flight therefrom, did cause
the death of IBTIHAL S. DARRAJI, a human being, not a participant in
such crime; and the current offense was aggravated by the following
circumstance: the offense involved a destructive and foreseeable impact on
persons other than the victim, as provided by 9.94A.535(3)(r), and
furthermore, the defendant did commit the above crime against an intimate
partner, as defined by RCW 26.50.010(7) and 9A.36.041(3)(a).
Clerk’s Papers at 132 (emphasis added).
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Yasir contends the State’s failure to identify who constituted the “persons other
than the victim” affected rendered the information defective. We disagree.
Accused persons have the constitutional right to know the charges against them.
U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. An information is constitutionally
defective if it fails to list the essential elements of a crime. State v. Zillyette, 178 Wn.2d
153, 158, 307 P.3d 712 (2013). “‘An essential element is one whose specification is
necessary to establish the very illegality of the behavior charged.’” Id. (internal
quotation marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640
(2003). Requiring the State to list the essential elements in the information protects the
defendant’s right to notice of the nature of the criminal accusation guaranteed by the
Sixth Amendment and article I, section 22. Id. “We review the constitutional adequacy
of charging documents de novo.” State v. Goss, 186 Wn.2d 372, 376, 378 P.3d 154
(2016). “A defendant may raise an objection to [the] charging documents at any time,
but [there is] a presumption in favor of the validity of charging documents when the
challenge is made after [the] conclusion of the trial.” State v. Canela, 199 Wn.2d 321,
328, 505 P.3d 1166 (2022).
Yasir cites several cases in support of his argument; however, none of these cases
held that an information was defective for omitting facts supporting a charged
aggravating factor under RCW 9.94A.535(3). See, e.g., State v. Hugdahl, 195 Wn.2d
319, 458 P.3d 760 (2020) (holding that the statutory language for sentencing
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enhancements under RCW 69.50.435(1)(c) must be included in the charging document,
and the omission of the word “stop” from the statutory language “school bus route stop”
could not be implied from the information); Zillyette, 178 Wn.2d at 160-161, 163
(addressing an essential element of controlled substances homicide and holding that
neither the identity of the controlled substance nor its schedule could be implied from an
information alleging that the defendant “unlawfully deliver[ed] a controlled substance . . .
in violation of RCW 69.50.401.”); State v. Nonog, 169 Wn.2d 220, 225-31, 237 P.3d 250
(2010) (concerning whether an information charging domestic violence reporting in
violation of RCW 9A.36.150 was defective for failing to specify the exact domestic
violence crime committed, and holding that the information reasonably apprised the
defendant of his prior crime); Allen, 192 Wn.2d at 544 (regarding whether aggravating
circumstances under RCW 10.95.020 are “elements” of “aggravated first degree murder
for double jeopardy purposes”). Accordingly, this argument fails.
In his second SAG issue, Yasir argues that the trial court abused its discretion by
allowing Nahi to provide expert testimony despite being admitted as a lay witness under
ER 701. This evidentiary challenge was not preserved at trial and we decline to review it
on appeal. ER 103(a)(1); RAP 2.5(a).
In his third SAG issue, Yasir argues that the prosecutor argued outside the scope
of facts and evidence during closing argument. He contends the prosecutor reiterated
Nahi’s expert testimony and promoted a legal conclusive decision.
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No. 39421-2-III
State v. Darraji
55
Yasir points to the following statement made by the prosecutor during closing:
You heard from Hamid Nahi. He told you the last time he saw
Ibtihal, she was terrified. She was terrified of Yasir. And he said things
that she was doing, the rumors that were spreading about her drinking,
dancing, nightclubs, driving, jobs, Christianity, all of that is a death
sentence in Iraq; maybe here, too.
RP (Nov. 17, 2022) at 2189.
Yasir’s argument that the prosecutor argued outside the scope of facts and
evidence fails. The prosecutor summarized Nahi’s testimony. Yasir fails to show what
evidence discussed by the prosecutor was not in evidence. We generally consider only
issues raised in a SAG that adequately inform us of the nature and occurrence of the
alleged errors. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008).
In his final SAG issue, Yasir contends the jury’s tour of Ibtihal’s burnt car
prejudiced his right to a fair trial. He argues that the jail environment where the car was
displayed and the smell of the victim’s burned body caused prejudice.
Before trial, the prosecutor moved to allow the jury to view Ibtihal’s burned car as
demonstrative evidence.18 Defense counsel objected, arguing that photographs should
suffice and expressing concern that showing the car in the Spokane County Jail sally port
would unfairly prejudice the jury, as it would reveal that Yasir was housed in the jail.
The prosecutor countered that any prejudice would be mitigated because the car would be
18 Although the prosecutor references filing a motion regarding demonstrative
evidence, that motion is not in the record.
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No. 39421-2-III
State v. Darraji
56
brought into the sally port behind the jail, Yasir would appear before the jury without
handcuffs and in regular clothing, and the jury would not pass through the jail itself.
Defense counsel clarified that his primary concern was the jury being taken into the jail
facility. The court ultimately granted the State’s motion.
Before the jury viewed the car, the court issued an oral limiting instruction, stating
that the location of the viewing had “no bearing on that evidence or anything else” and
instructed jurors not to consider the location of the car. Additionally, the jury was
prohibited from speaking while viewing the car. The record does not contain images of
the sally port where the car was viewed or any record of what happened during the
viewing.
Although defense counsel did object to the facility where the car was shown, the
record does not contain any images, or videos showing the sally port or its proximity to
the jail. Regardless, we presume the jury followed its instructions. State v. Stein, 144
Wn.2d 236, 247, 27 P.3d 184 (2001). Similarly, although Yasir contends the “stench” of
the victim prejudiced the trial, there is no record of what occurred during the viewing of
the car, let alone of any smell emanating from the car.
Because we consider only issues that adequately inform us of the nature and
occurrence of the alleged errors, we decline review of these issues. Alvarado, 164 Wn.2d
at 569. To the extent these alleged issues involve facts or evidence not in the record,
Yasir may raise them in a personal restraint petition. Alvarado, 164 Wn.2d at 569.
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No. 39421-2-III
State v. Darraji
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CONCLUSION
We reverse and remand with instructions to vacate and dismiss with prejudice
Yasir’s conviction for felony harassment. We affirm the conviction for second degree
felony murder and remand for resentencing on that conviction.
_________________________________
Staab, J.
I CONCUR:
_________________________________
Lawrence-Berrey, C.J.
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No. 39421-2-III
FEARING, J. (dissenting) — During trial, the State employed three converging
dynamics to bias the jury: ethnicity, religion, and Americanism. I agree with the majority
that evidence concerning Iraqi culture and Islam, Yasir Darraji’s upbringing in Iraq,
Ibtihal Darraji’s change in lifestyle, and Ibtihal’s conversion to Christianity held
relevance to the prosecution. For example, a prosecutor may question a witness about
religious belief to establish a possible motive for a crime. State v. Dhaliwal, 150 Wn.2d
559, 579-80, 79 P.3d 432 (2003); State v. Kovalenko, 30 Wn. App. 2d 729, 748, 546 P.3d
514 (2024). But because of the divisive subject of Islam and stereotypes of Middle
Eastern men, the State needed to selectively, thoughtfully, and carefully present its
evidence rather than turn the trial into a contest between American culture and
Christianity, on the one hand, and Iraqi culture and Islam, on the other hand. The State
also should have avoided any patriotic appeals to Islam and Iraqi culture being
antagonistic to Americanism.
The State gratuitously painted victim Ibtihal Darraji as Christian and American
and defendant Yasir Darraji as Muslim and un-American. The State even went as far as
suggesting Ibtihal was a martyr to Christianity. With its testimony and arguments to the
jury, the State employed the ancient, but common, practice of portraying the victim as
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No. 39421-2-III
State v. Darraji
2
“us” and the accused as “them” in order to assure a conviction. I would reverse and
remand for a new trial because Yasir Darraji did not receive a fair trial.
I list the State’s disproportionate references during trial to Americanism,
Christianity, and Islam. During its opening statement, the State promoted the United
States as a refuge for the world. The State mentioned that Yasir and Ibtihal Darraji fled
Iraq because of violence directed at the couple after Yasir worked in security for the
United States. The State intoned: “[the Darrajis] . . . came here to seek the American
dream.” RP at 704. Later comments by the State’s attorney, during opening, suggested
Yasir interfered in Ibtihal’s pursuit of the American dream.
Also, during its opening statement, the State blamed hostility between Yasir and
Ibtihal Darraji, accruing after the move to the United States, to Ibtihal’s becoming more
“Americanized.” RP at 705.
Fights started happening again and rumors were being spread about
Ibtihal Darraji that this good life she’d come here to live suddenly wasn’t
looking right anymore. There were a lot of disputes about how she was
becoming more Americanized. She’d spend time with friends and go
dancing. She’d go drinking sometimes. These are things that were seen as
unacceptable in her culture.
RP at 705. Other than perhaps suggesting spending time with friends, dancing, and
drinking alcohol, the State never defined for the jury, during the opening, what it meant
by “becoming more Americanized.” Nevertheless, one who sat through the trial or reads
the transcript recognizes that the State deemed “becoming Americanized,” which I refer
to as “Americanization,” to encompass wearing western clothes, discarding the hijab, and
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No. 39421-2-III
State v. Darraji
3
converting to Christianity. More importantly, the term “Americanized” would lead
Spokane jurors to identify with Ibtihal Darraji and distance themselves from Yasir, who
wished to preserve his Iraqi culture and Islamic religion despite moving to the United
States. Thus, the opening statement began the “us” versus “them” dichotomy that did not
end until the jury deliberated.
The State employed the term “Americanized” twice thereafter. The State wished
two of its witnesses to echo the State’s theme that Ibtihal Darraji had increasingly
become Americanized. The witnesses did not cooperate. The State’s attorney asked
witness Zainab Jameel, a close friend of Ibtihal:
Q Is it safe to say that she became more Americanized?
A Not Americanized, but became aware, yeah.
RP at 734.
Later the prosecuting attorney asked Sajida Nelson, also an Iraqi refugee and
World Relief worker in Spokane who befriended the Darrajis:
Q You mentioned she [Ibtihal] kind of had stopped covering her hair and
some other things. Was that part of the—the gossip that you were
hearing, that she was becoming Americanized?
A No.
RP at 1147. Despite the two witnesses’ negative answers, the jury heard the State repeat
its theme of Americanization. As a trial lawyer, I sometimes asked a question to a
witness regardless of whether the answer would help or hinder and solely for the purpose
of planting a seed in the factfinder’s mind.
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No. 39421-2-III
State v. Darraji
4
The State asked witness Zainab Jameel other questions to demonstrate that Ibtihal
Darraji sought to become Americanized:
Q When Ibtihal and Yasir were still married, did Ibtihal cover her hair?
A Yes.
Q When Ibtihal and Yasir were still married, did she smoke?
A No.
Q When Ibtihal and Yasir were married, did she drink?
A No.
Q When Ibtihal and Yasir were married, did she go out to nightclubs?
A No.
. . .
Q After the divorce, how did Ibtihal start dressing?
A It changed.
Q How did it change?
A It changed, like, from one to one hundred.
Q Did she cover her hair?
A No.
Q What types of things would you do socially with Ibtihal after she was
divorced?
A At home and we sit together.
Q Did you ever go to nightclubs together?
A I cannot answer this question.
Q And why can't you answer that question?
A I can't.
Q Okay.
Do you know if Ibtihal went to any bars after she was divorced?
A Yes.
Q And did she drink after she was divorced?
A Yes.
Q Do you know if she ever smoked after she was divorced?
A Yes.
RP at 733-34.
The jury heard evidence that Ibtihal Darraji and her friend Galbahar Suwaed
assaulted Saad al Karawi at a WinCo Foods store in early January 2020. Karawi had
spread rumors about Ibtihal. Through questioning of Zainab Jameel, the State separated
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No. 39421-2-III
State v. Darraji
5
Iraqi and American culture, which intentionally or unintentionally showed Ibtihal as
becoming more American.
Q Is that—in Iraq, as a culture, would that be a bad thing for a man to
allow a woman to beat him up?
A We’re not in Iraq. We’re in America.
Q But if it was in Iraq, would that be something that would be something a
man would have a problem with, have—
A It depends on the personality of the woman.
RP at 779.
The State asked Sajida Nelson similar questions about Ibtihal Darraji’s striking of
Saad al Karawi:
Q Were you aware that Ms. Darraji had hit him [Saad] because of the
rumor mill? Were you aware of that?
A That’s what he said.
Q Did she ever talk to you about that?
A No. We never had the chance to talk about it.
Q Okay.
In the Iraqi culture, is a woman hitting a man dishonoring that man?
A Yes, but it depends what is happening in the same circumstances, too.
Q Okay.
So that would be considered a dishonorable thing in some situations?
A Correct.
Q In Iraq, that would be a—an issue, would it not?
A Yes.
Q A big issue?
A Correct.
RP at 1169.
In blending Americanism and ethnicity with religion, the State repeatedly asked
witnesses about Ibtihal Darraji becoming a Christian. The State asked Zainab Jameel,
Ibtihal’s close friend:
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No. 39421-2-III
State v. Darraji
6
Q Ms. Jameel, did you go to church when you were in Spokane?
. . .
A Yes.
Q . . . What religion was the church that you went to?
A The Christian religion.
. . .
Q How often did you go?
A Sometimes every Sunday, sometimes every week.
Q Did Ibtihal go to church with you?
A Yes.
Q And did she bring her children?
A Yes.
. . .
Q Was Yasir Darraji aware that Ibtihal was taking his children to church?
A Yes.
Q And how do you know that?
A She told me; Ibtihal.
RP at 731-32.
The State called Lee Brown, director of the Union Gospel Mission’s thrift store
enterprise, to testify. Brown interviewed Ibtihal for a job at the mission’s Spokane
Valley store. Brown knew the time at which Ibtihal left work on January 30, 2020, the
day of her killing. But the State questioned the witness beyond this scope when inserting
the subject of Christianity. Brown averred:
Q What was the interview like? What’s the process look like, from your
standpoint?
A The process looks like, you know, we come in and we let them know—
we ask them what they know about Union Gospel Mission. One of the
things we really focus on, we ask them do they know it’s ministry and
we all are believers of Christ. And we ask them how to—how does
Christ-what important place does Christ play in their lives. So because,
again, you’re going to be in a Christian environment. We pray together.
We pray for customers. And we have daily meetings where we talk
about business numbers, and we also will have prayer and things like
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No. 39421-2-III
State v. Darraji
7
that. So it’s very important that you cover those things in the interview
so they know what they’re stepping into.
Q And when you interviewed Ms. Darraji, was she comfortable with that
concept of participating in?
A To my knowledge, yes. Uh-huh.
RP at 805-06.
Evidence of Ibtihal Darraji’s employment at Union Gospel Mission bore little, if
any, relevance to the prosecution other than to emphasize Ibtihal Darraji’s devotion to
Christianity. The State presented no evidence that Yasir Darraji knew the requirements
to work at the Union Gospel Mission or the practices of the mission, let alone that Ibtihal
worked at the mission. Thus, the evidence could not be relevant to any motive to strangle
Ibtihal or ignite a pyre.
Despite its lack of relevance, the State called Lorie Skillman, immediately after
Lee Brown’s testimony, to over-embroider its Christianity pattern. Skillman served as
the assistant manager of the Union Gospel Mission’s Spokane Valley store, and she
supervised Ibtihal Darraji. The State questioned Skillman:
Q Did you also start morning with a team meeting?
A Actually, no. We had team meetings, though, and they were always
around noon.
Q Oh. Excuse me.
Tell me a little bit about that team meeting.
A We had what we called a huddle, and it was usually a daily devotional
that we would read, and then we would discuss it. We would pray over
it, and then we would talk about the day and how things were going,
how the store was doing. And it was a good time to be able to
communicate with the employees if there was anything that needed to
be said. Yeah.
Q Okay.
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No. 39421-2-III
State v. Darraji
8
Tell me a little bit about the devotion. Where did that devotion come
from?
A We--there are books that are put out and published that are yearly
devotionals, and there’s one each day. So we would pick one, a book,
and then we’d read that for the year.
Q So is that, like, a page a day or—
A Yes.
Q Are you reading--a page a day. Okay.
And is there Bible scriptures that are involved in that?
A Yes.
Q Okay.
And you said you would pray over it. What do you mean by that?
A Well, whatever the message was for the day, we would pray about that.
We would take anything that anybody else had, we would ask if they
had any sort of prayer requests, and we would go ahead and put those in
our prayer. And we would discuss the message and just thank God for
it.
Q It sounds like the Christian faith was a fairly big part of UGM’s Thrift
Store, kind of employment, is that--
A Correct.
Q Does that sound right?
A Uh-huh.
Q When you did those daily huddles, who was present for those?
A All the employees that were not in the check stand actually checking out
people. So all the people in the front and all the people that were
[doing] the processing in the back.
Q When you were working at the Valley thrift store, did you work with
somebody named Ibtihal Darraji?
A I did.
RP at 814-15.
The State asked Lorie Skillman to describe the non-Muslim dress adorned by
Ibtihal Darraji.
Q How did she dress for work?
A How did she dress?
Q Uh-huh.
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No. 39421-2-III
State v. Darraji
9
A Usually jeans, a shirt, sweatshirt because it got cold back there because
we didn’t have really any--too much heat in that. Shoes. Gloves if we
needed them.
Q Sure.
There’s a picture on the screen here. It’s State’s Exhibit 103. Do you
recognize that?
A Yes.
Q And is that the thrift store on Sprague?
A Yes.
Q And is that Ibtihal there in the photo?
A Yes.
Q And you see–can you describe her clothing for us in that photo?
A It’s really hard for me to see it from here, but it looks like she has her
jeans.
RP at 817. Although Skillman encountered difficulty identifying objects in the photo, I
doubt a juror would encounter more difficulty in discerning the jeans than Skillman.
Later, again through Lauri Skillman, the State again repeated the theme of Ibtihal
Darraji’s abandonment of Iraqi dress and practicing Christianity.
Q You mentioned the kind of daily team huddle?
A Uh-huh.
Q Did Ibtihal participate in that?
A Yes.
Q And did she come daily to that devotional?
A Yes.
Q Did she participate in prayer requests?
A Yes.
Q Were you aware of Ibtihal’s religion?
A She was Christian.
Q Did you ever see her wear a hijab or cover her hair?
A No. But she’d show me a picture of herself, and she had--I know that
she had worn one.
RP 818-19.
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No. 39421-2-III
State v. Darraji
10
The State questioned Hamid Nahi, another man who left Iraq because he formerly
worked for the United States military, about Ibtihal’s change in dress and conversion to
Christianity. Nahi befriended Yasir and Ibtihal Darraji when they arrived in Spokane.
Q So when you saw her that day, how did she physically look? Did she
look healthy to you?
A She did.
Q Okay.
Was her hair covered at that time?
A No.
Q Do you remember when you first met her if she used to cover her hair?
A She did, yes, sir.
Q Okay.
Did she tell you about any rumors she was concerned about that day?
A Yes.
Q What specific rumors was she worried about?
A So when I asked her about her life, she says she’s really concerned this
time, and she told me that there is a rumors been throwing about her
converted to Christianity. Another rumor is that she’s basically
smoking meth, going dancing in the nightclubs, drinking alcohol, and
but--dating, all of that stuff.
Q Okay.
And did she tell you where she heard these rumors about herself?
A She says--she stated that Yasir was telling him and other group of his
friends were saying those rumors against her.
Q Okay.
So in Iraq would rumors like this be a big deal about Christianity, drug
usage, dancing, things like that?
A Yes, sir. It will be--basically will be a death penalty. In Iraq, that—it’s
a law. Law goes on females only, and basically you--you can murder
your wife, your daughter, whoever, if they went and dated somebody or
if they had alcohol or something. They call it wash of shame, and it--
you can-- you don’t even go to jail for it. You probably will go for like
maybe one or six months if you did it in public.
Q And was she worried about these rumors going back to Iraq specifically?
A Correct. Yes, sir.
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No. 39421-2-III
State v. Darraji
11
RP at 1535-36. The State may have thought what occurs in Iraq relevant because, if
some men in Iraq kill an apostate female, Yasir Darraji likely killed Ibtihal Darraji. The
State may have wished to harness the law of averages. The State could have asked
Hamid Nahi whether Ibtihal feared that Yasir would kill her without invoking the
phenomenon of shame killing in Iraq.
The State wanted the jury to repeatedly hear about Ibtihal Darraji’s devotion to
Christianity. Despite the hearsay nature of the testimony, the State recalled investigating
officer, Detective Corey Turman, to the stand and asked:
Q And then do you recall when she started work at UGM?
And if you want to follow along in the PowerPoint.
A Oh.
Q It’s also there.
A Thank you.
Q It’s a lot to remember.
A Yes. October 31st, 2019.
Q So October 31st of 2019, Ibtihal started working for a Christian
organization?
A Yes.
Q Okay.
And we heard about kind of daily devotions and prayer time at that
organization?
A Yes.
RP at 1949.
The State gratuitously introduced as an exhibit a photograph of the couple’s
daughter. Ex. P-84 at 24.
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No. 39421-2-III
State v. Darraji
12
The daughter chose to live with her father, not her mother, during approximately
the last six months of Ibtihal’s life because Ibtihal recurrently insulted Yasir. The State
asked Detective Turman to identify the photograph.
Q So you mentioned that they had this fight [fight between Ibtihal Darraji
and Saad al Kawari at Winco] on 1/9. Did you observe anything else on
the iCloud account that was unusual from--from Yasir’s phone on that
same day?
A Yes. I assume we’re talking about the next slide.
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No. 39421-2-III
State v. Darraji
13
Q Yes, we are.
A So this is in the middle of the fight.
Q Okay.
A Allegedly when Ibtihal is doing something shameful, and he took a
picture, which I believe it is in [the daughter’s] room. And it is--appears
to be a female, from her build, and she is dressed in a black robe, head
scarf. There appears to be a prayer rug, and she is on her knees in what
appears to be prayer.
Q Why did you think that was significant?
A Well, I’d be offering an opinion and speculating.
MR. COSSEY [defense counsel]: And I would be objecting.
Q (By MS. STEARNS) [deputy prosecuting attorney] Why did you
document--
THE COURT: I’ll sustain the objection as to an opinion.
Q (By MS. STEARNS) Why did you document that photograph?
A Well, it appeared out of ordinary from all the photos that I had seen prior
that were saved of [the daughter]. [The daughter] was--what she wore
in court yesterday was very consistent with her dress and style on social
media. There was one time in one interview, I believe the very first
interview, she was wearing--had her head covered. But those are all the
only two times in all of her pictures that--and I--I thought it was
unusual.
Q So you documented this because it stood out to you and its abnormality,
I suppose?
A Yes.
RP at 1953-54.
In addition to me, the investigating detective struggled to understand the relevance
to the prosecution of the daughter wearing the headdress. But according to the State, the
daughter of a Muslim man, which daughter occasionally wears a hajib, is an
“abnormality.” RP at 1954. Even if a Muslim daughter inconsistently wearing a hijab
constitutes an abnormality, the State still has not explained its relevance. The jury was
left to reflect that Yasir Darraji demanded that his daughter wear the hijab and would
grow angry with her if she did not because of his clinging to Islam. The jury could
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No. 39421-2-III
State v. Darraji
14
juxtapose the daughter, who retained some of the Iraqi culture, from the mother, Ibtihal
Darraji, who wanted to be American.
At the conclusion of trial and during its closing argument, the State returned to its
theme that Ibtihal was a Christian, not a Muslim. The State went further and told the jury
that Christian daily devotions and prayer time began “the end.” RP at 2174. The State’s
attorney remarked:
Later, she started a job October 31st of 2019 for the Union Gospel
Mission, another religious organization, an organization that required their
employees to have daily devotionals, daily prayer time, that Ibtihal
involved herself in, that Ibtihal participated in, that Ibtihal attended. That
was the beginning of the end.
RP at 2174. “The end” presumably was the death of Ibtihal. Thus, the State fashioned
Ibtihal as a martyr to her faith. The State presented no evidence, however, that Yasir
Darraji knew of Ibtihal engaging in Christian devotions and prayer at work, let alone that
such knowledge contributed to Yasir’s motivation to kill Ibtihal.
Later in its closing argument, the State again emphasized: “Ibtihal was Christian.”
RP at 2195. Then, without evidence, the prosecution suggested that a Muslim woman in
America who converts to Christianity receives a death sentence.
You heard from Hamid Nahi. He told you the last time he saw
Ibtihal, she was terrified. She was terrified of Yasir. And he said things
that she was doing, the rumors that were spreading about her drinking,
dancing, nightclubs, driving, jobs, Christianity, all of that is a death
sentence in Iraq; maybe here, too.
RP 2189. Hamid Nahi did not testify that a conversion to Christianity, for a Muslim
female residing in the United States, constituted a death penalty.
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No. 39421-2-III
State v. Darraji
15
During the trial, Arabic interpreters assisted Yasir Darraji, who spoke rudimentary
English. The use of interpreters, despite its inevitability, separated Darraji from the jury
and bolstered Darraji’s status as a “them.” The underlying principle of a jury trial is to be
judged by one’s peers. Defendants who do not share the same cultural and linguistic
background as the jurors can hardly be considered peers. Hale, S., Martschuk, N.,
Goodman-Delahunty, J., & Lim, J. (2024), Juror perceptions in bilingual interpreted
trials, Perspectives, 1–24. https://doi.org/10.1080/0907676X.2024.2343772.
Recent Washington Supreme Court decisions have focused on racism in the
criminal justice system. Yasir Darraji’s appeal combines religion with race. Race and
religion engage in an intimate interplay during an era of emergent white populism and
religious intolerance. Khaled A. Beydoun, Faith in Whiteness: Free Exercise of Religion
as Racial Expression, 105 Iowa L. Rev. 1475, 1475 (2020). In addition to emphasizing
religion, the State also promoted Americanism often a codeword for racism. The State
claimed Ibtihal Darraji became “Americanized.” Americanized, as demonstrated by this
court proceeding, means whitenessized and Christianized.
In a Michigan decision, the appeals court paralleled religion with race, nationality,
and ethnicity as a subject that risks arousing prejudice during a trial. George v. Travelers
Indemnity Co., 81 Mich. App. 106, 265 N.W.2d 59, 63 (1978). Just as important, the
court observed that even when race, ethnicity, nationality or religion holds relevance to
the suit, the law demands restraint in the use of evidence. The court wrote:
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No. 39421-2-III
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Even in the occasional case where racial, ethnic, or religious matters
are relevant to the issues, there is always the risk of incidentally arousing
prejudice and this Court abhors injecting the poison of prejudice into any
legal proceeding. The law is blind to differences in race, religion, and
nationality.
George v. Travelers Indemnity Co., 265 N.W.2d 59, 63 (1978).
One commentator has observed that Islam over time and through its social and
legal resignification has become, in North America and Europe, a race called “Muslim.”
Cyra Akila Choudhury, Racecraft and Identity in the Emergence of Islam as a Race, 91
U. CIN. L. REV. 1, 3 (2022). Islamophobia has become a distinct form of racism. Cyra
Akila Choudhury, Racecraft and Identity in the Emergence of Islam as a Race, 91 U. CIN.
L. REV. 1, 3 (2022). Individuals immigrating from northern Africa and the Middle East
have shed Islam and converted to Christianity in order to gain full assimilation and
acceptance in the United States and to expedite American citizenship. Cyra Akila
Choudhury, Racecraft and Identity in the Emergence of Islam as a Race, 91 U. CIN. L.
REV. 1, 21 (2022). Hijabs and beards serve as a marker of stubborn clinging to foreign-
ness and a rejection of American ideals and values. Cyra Akila Choudhury, Racecraft
and Identity in the Emergence of Islam as a Race, 91 U. CIN. L. REV. 1, 48 (2022). When
a man from an immigrant community murders his wife, government leaders attribute the
crime to culture, but when a White American commits the same crime, the same leaders
label the act as one of individual deviancy. Leti Volpp, Protecting the Nation from
“Honor Killings”: the Construction of a Problem, 34 Const. Comment 133, 135-36
(2019).
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No. 39421-2-III
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Being identified as a Muslim does not bode well for an accused. Despite the
legend under the Statue of Liberty, the United States of America does not welcome all
tired and poor huddled masses to our nation. Instead, the leader of our nation tells
Muslims born in this country to return to “where they came from.” “Send Her Back!”:
President Trump Slams Rep. Ilhan Omar at Rally - CBS Minnesota, July 17, 2019. Many
Americans adjudge Islam as foreign to America and American history. Khaled A.
Beydoun, Faith in Whiteness: Free Exercise of Religion as Racial Expression, 105 IOWA
L. REV. 1475, 1518 (2020).
In State v. Farokhrany, 259 Or. App. 132, 312 P.3d 584 (2013), our southern
neighbor’s court noted the interrelationship between race and religion. The Oregon court
reversed Shahin Farokhrany’s convictions for controlled substances crimes and sexual
abuse crimes because of the insertion of religion and race into the case. “During voir
dire, the [State] engaged potential jurors in a discussion about their views regarding the
prosecution calling only one witness to prove a fact.” Id. at 134. “The prosecutor
contrasted for the potential jurors a scenario that he asserted ‘[came from] either Iran or
Saudi Arabia,’” a nation “where an alleged rape victim was required to produce five male
witnesses to prove the rape.” Id. “One juror . . . correct[ed] the prosecutor, stating that
the prosecutor was describing Sharia law, a religious law, not the legal system of a
country.” Id. The State used a preemptory challenge to remove the potential juror.
Outside of the jury’s presence, defense counsel requested a curative instruction regarding
the prosecutor’s comments on Sharia law. Defense counsel worried that the
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No. 39421-2-III
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prosecution’s comments could bias the jury against Farokhrany because he is Iranian and
Muslim. Id. The prosecutor responded that he always posited this hypothetical during
the many sex abuse cases he tried. The trial court refused to give the proposed
instruction, commenting that such an instruction was unnecessary as the jury did not
know defendant’s ethnicity or religion. According to the trial court, as far as the jury was
concerned, defendant could be an American, and a Christian, not a Muslim.
When reversing the verdict, the Oregon appeals court, in State v. Farokhrany,
concluded that the State “invited the jurors to identify [Shahin Farokhrany] with one of
the countries mentioned . . . and with the dominant religion of those countries.” Id. at
136. “Moreover, the example of Sharia law used by the prosecutor may have suggested
to the potential jurors that men from countries that follow Sharia law feel free to commit
sexual offenses, as long as the requisite number of witnesses are not present.” Id. The
reviewing court recognized that the prosecutor did not intend to appeal to prejudice, but
the court could not gauge in the effect on the jury of the prosecutor’s remarks. The
comments enticed the jury to consider irrelevant factors when reaching a verdict.
Americans view an Iranian background and Muslim negatively. Thus, the State denied
Fahroarky an impartial jury demanded by the federal constitution and the Oregon
constitution. The court wrote:
In the end, regardless of the prosecutor’s motivation in making such
comments, this court simply cannot tolerate conduct, blatant or subtle, that
even borders on an attempt to introduce, at any stage of a trial, issues of
racial, ethnic or religious bias.
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No. 39421-2-III
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Id. at 137. The State, in Yasir Darraji’s prosecution not only attempted to introduce
excessive evidence that invoked racial, ethnic and religious bias, but its attempt
succeeded.
In State v. Kovalenko, 30 Wn. App. 2d 729 (2024), this court declined to reverse a
conviction based on the assertion of religion during trial. Nevertheless, the court ruled
that the prosecution improperly attributed Sergey Kovalenko’s religion to a strict and
isolating family lifestyle that explained why his daughters did not earlier report sexual
abuse. The State could have provided evidence of a sequestered family life without
mentioning religion.
The State could have avoided its persistent discussion of Iraqi culture and Islam
during Yasir Darraji’s trial and still convinced the jury of guilt by tailored evidence and
argument. The State could have presented evidence of Ibtihal Darraji’s conversion to
Christianity without extrapolating on and duplicating evidence of the devotional exercises
at the Union Gospel Mission. The State could have introduced testimony of Yasir’s
aversion to the conversion without portraying Ibtihal as a Christian martyr or asserting
that employment with the Union Gospel Mission acted as the beginning of her end.
The State also harnessed Americanization in addition to religion against Yasir
Darraji. In Varughese v. State, 892 S.W.2d 186 (Tex. App. 1994), a jury convicted East
Indian Matthew Varughese of murdering his wife. The wife died, in her bed, from
burning and smoke inhalation. Varughese claimed she committed suicide. The
reviewing court ruled that the prosecution committed misconduct when referring to
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No. 39421-2-III
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Varughese’s race and nationality during jury argument. The prosecutor commented that
“Varughese and his wife were born in India.” Id. at 193. The State’s attorney added that
husbands often engaged in wife-burning in order to dispose of an unwanted spouse in
India. The prosecutor expressly labeled the wife as “Americanized,” but Varughese
clung to his birth country’s culture and traditions. 892 S.W.2d at 194. The appeals court,
despite the misconduct, refused to reverse the conviction because Varughese’s failure to
object to the argument waived any error. The Washington Supreme Court demands
reversal regardless of the extent of prejudice.
The State could have presented evidence of Ibtihal’s change in dress, alteration in
lifestyle, and transition to the prevailing religion in the United States without labeling
Ibtihal as becoming “Americanized.” Muslim American women who wear a hijab and
adhere to a strict lifestyle code are as much American as an American Christian woman
who wears Western dress. America values liberty. Women may choose what to wear.
Some Muslim women, regardless of nationality or country of residence, find a headdress
and shapeless clothing liberating because men do not ogle them. The State did not need
to influence the jury with the photograph of the daughter, contrary to her mother,
following Iraqi custom and Islam.
Washington State abhors ethnic bias, particularly bias inserted by the State in a
criminal prosecution. The Washington Supreme Court desires a prophylactic rule when
confronting ethnic bias in the court because “‘past efforts to address prosecutorial
misconduct [had] proved insufficient to deter such conduct.’” State v. Zamora, 199
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No. 39421-2-III
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Wn.2d 698, 722, 512 P.3d 512 (2022). The nature of ethnic bias creates an impossibility
in determining the extent to which the accused suffers prejudice. State v. Zamora, 199
Wn.2d 698, 712 (2022).
When adjudging whether the State wrongly appealed to bias, the Supreme Court
considers “the apparent purpose of the statements, whether the comments were based on
evidence or reasonable inferences in the record, and the frequency of the remarks.” State
v. Zamora, 199 Wn.2d 698, 718-19 (2022). The Washington Supreme Court does not
measure the strength of the State’s evidence to convict. The court instead applies “the
tested and proven rule of automatic reversal.” State v. Zamora, 199 Wn.2d 698, 722
(2022) (emphasis added).
The State repeatedly, repeatedly, and repeatedly mentioned Ibtihal Darraji’s
Christianity and Yasir Darraji’s Islamism. The State often and frequently elicited
testimony of Ibtihal’s change in dress and shedding of the hijab. The incessant reference
to Christianity and Americanization served no purpose other than to arouse the jurors.
The State told the jury that Ibtihal’s devotional exercises at the Union Gospel Mission
began her journey to death despite no evidence supporting this assertion. The State
falsely told the jury that Hamid Nahi averred that Christianity could be a death sentence
to a Muslim female residing in the United States.
Yasir Darraji’s trial counsel did not object to most of the testimony cited in this
dissent. The Washington Supreme Court instructs, however, that “inaction by defense
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counsel [does not] excuse a prosecutor’s misconduct.” State v. Zamora, 199 Wn.2d 698,
717 (2022).
During oral argument, the court asked Yasir Darraji’s counsel whether, despite the
State’s employment of tropes to engender bias, overwhelming evidence supported the
conclusion that Darraji murdered his wife. Counsel twice refused to answer the question,
a refusal that confirms a belief that the jury based its verdict on robust evidence. This
belief raises a quandary. Should a reviewing judge reverse a conviction when
overwhelming evidence supports the conviction despite the trial’s infection of racial,
ethnic, and religious bias?
The Washington Supreme Court answers this question. When reviewing appeals
wherein the prosecution engaged in racial pandering, the court asks whether the
prosecutor flagrantly or “apparently intentionally appealed to . . . racial bias in a way that
undermine[s] [the defendant’s credibility or the] presumption of innocence.” State v.
Zamora, 199 Wn.2d 698, 704, 718 (2022). If so, “the defendant need not establish
prejudice.” State v. Zamora, 199 Wn.2d 698, 721 (2022). Instead, the “prejudice is
incurable and requires reversal” regardless of the evidence against the defendant. State v.
Zamora, 199 Wn.2d 698, 721 (2022).
Yasir Darraji’s prosecutor intentionally inserted a theme that undermined the
credibility of Darraji because he, unlike his wife, refused to be Americanized and held to
Islam. The prosecutor portrayed Darraji as the stereotypical Middle Eastern man seeking
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No. 39421-2-III
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revenge against an ex-wife. The State did not need to insert ethnic and religious bias to
convict Darraji, but it insisted in doing so.
Although weak, some evidence pointed to Saad al Kawari as the killer. Ibtihal
Darraji had struck Kawari weeks earlier. Kawari lived near Darraji. Kawari twice
purchased gloves and cleaning solutions at Walmart on the night of January 30, 2000.
_________________________
Fearing, J.
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