Personal Restraint Petition Of: Jay Earl Mckague

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 71436-8-1	In the Matter of the Personal Restraint
of
JAY EARL MCKAGUE,
Petitioner.
DIVISION ONE o
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UNPUBLISHED OPINION 	5 	S?§
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FILED: June 30, 2014 	o 	g%C
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Trickey, J. — Jay Earl McKague is currently serving a sentence of life
without the possibility of parole as a persistent offender following his convictions
of second degree assault and third degree theft. 	The Supreme Court affirmed
his convictions and sentence in State v. McKague. 172 Wn.2d 802, 262 P.3d
1225 (2011). 	McKague now brings a personal restraint petition, asserting, inter
alia, that the prosecutor committed prejudicial misconduct when he displayed a
slide to the jury featuring the word "GUILTY" superimposed across a photograph
of McKague's face. 	Adhering to our Supreme Court's decision in In re Pers.
Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 (2012), we grant relief and
order a new trial.
FACTS
The pertinent facts of this case are set forth in McKague's direct appeal
as follows:
McKague shoplifted a can of smoked oysters from Kee Ho
Chang's convenience store. 	Chang followed McKague out of the
store and confronted him in the parking lot. When McKague tried to
leave, Chang grabbed his sweat shirt. McKague punched Chang in
the 	head several times and 	pushed 	him to the ground, causing
Chang's head to strike the pavement. 	While Chang was on the
ground, McKague punched him several more times and then left in
a friend's car. 	Chang tried to get up, but he was dizzy and unable
o 	a;

No. 71436-8-1/2
to stand for a time. Officer George Samuelson arrived at the store
and 	noted 	that the 	side 	of Chang's face 	was 	extremely 	puffy.
Officer 	Samuelson 	described 	Chang 	as 	seeming 	out 	of 	sorts,
appearing 	distracted 	and 	stunned. 	Detective 	Sam 	Costello
interviewed Chang and noted injuries to Chang's face and the back
of his head.
McKague was charged with first degree robbery, with third
degree theft as an 	inferior offense, 	and second degree assault
predicated 	on 	the 	infliction 	of 	substantial 	bodily 	injury. 	At
McKague's 	request, 	the 	court 	also 	instructed 	the 	jury on 	third
degree assault as an 	inferior offense of second degree assault.
The 	jury convicted 	McKague 	of third degree theft 	and 	second
degree assault.
McKague, 172 Wn.2d at 804.
During 	the 	State's 	closing 	argument, 	the 	prosecutor 	presented 	a
slideshow to the jury.1 	A number of the slides displayed trial evidence, including
images captured by the store's security camera and photographs of the victim's
injuries.2 	The slides also 	referred to the jury instructions 	pertaining to the
charged crimes of first degree robbery and second degree assault.3
The 	final slide 	presented 	to the 	jury is at 	issue 	in this 	PRP 	and 	is
reproduced below. 	As shown, the word "GUILTY" was printed in large red letters
and superimposed over an image of McKague's face.4 	The image was cropped
from a security camera photograph of McKague that had been admitted into
1The prosecutor's closing argument slides are attached to the personal restraint petition
(PRP) in exhibit (Ex.) A. 	We cite to those slides because the original slides are not
provided in the record.
2 PRP, Ex. A.
3 PRP, Ex. A.
4 PRP, Ex. A.

No. 71436-8-1/3
evidence.5 	Adjacent to arrows encircling the 	image were captions that read:
"TOOK can of oysters"; "INTENDED to commit THEFT": "During the taking-the
defendant resorted to force"; "Force used to retain or prevent"; "or overcome
resistance to taking"; ". . . inflicted bodily injury"; "TOOK OFF"; and, "'GO-GO-
GO.'"6 	The following 	image is a black and white representation of the slide,
which, according to the parties, was displayed in color at closing argument:
.inflicted bodily injury
osistance to taking
INTENDED to
commit THEFT
During the taking-
the defendant
Upon review of the transcript, it appears that the prosecutor made the
following remark while showing this slide to the jury:
Ladies and gentlemen, I touched upon -- earlier I touched
upon direct evidence and circumstantial evidence. 	Direct evidence,
what somebody sees, hears, smells, and then inferences that you
may draw from your common experience. 	This defendant was in a
big 	rush 	to 	get 	away 	from 	there, 	and 	then 	of 	course 	when
somebody runs, that is something from which we may draw the
inference that he knows he's guilty not of simply shoplifting, not of
mere 	theft 	but 	of 	robbery, 	and 	on 	the 	evidence, 	ladies 	and
gentlemen, the defendant is guilty as charged.[7]
5 PRP, Ex. A.
6 PRP, Ex. A.
7 3 Report of Proceedings (RP) at 261-62.

No. 71436-8-1/4
This statement concluded the prosecutor's closing argument.8
McKague now files this PRP.
ANALYSIS
McKague's primary contention is that prosecutorial error deprived him of
his right to a fair trial. 	He argues that the prosecutor's use of the "GUILTY" slide
was so flagrant and ill intentioned that it prejudiced the outcome of the trial. 	We
agree and reverse his convictions.
To obtain relief on collateral review based on a constitutional error, the
petitioner must demonstrate by a preponderance of the evidence that he or she
was actually and substantially prejudiced by the error. 	In re Pers. Restraint of
Davis. 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004).
The Sixth and Fourteenth Amendments to the United States Constitution,
as well as article I, section 22 of the Washington State Constitution, guarantee a
defendant the fundamental right to a fair trial. 	Estelle v. Williams. 425 U.S. 501,
503, 96 S. Ct. 1691, 48 L Ed. 2d 126 (1976); State v. Finch, 137 Wn.2d 792,
843, 975 P.2d 967 (1999). 	Prosecutorial misconduct may deprive a defendant of
this right. 	State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984).
A prosecutor has wide latitude in closing argument to draw reasonable
inferences from the facts in evidence and to express such inferences to the jury.
State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). 	But a prosecutor
must 	nevertheless "seek convictions based 	only on 	probative evidence and
8 3 RP at 262.

No. 71436-8-1 / 5
sound reason." 	State v. Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74
(1991).
Prosecutorial misconduct constitutes a ground for reversal if the defendant
can demonstrate that the challenged conduct was both improper and resulted in
prejudice. 	State 	v. 	Monday, 	171 	Wn.2d 	667, 	675, 	257 	P.3d 	551 	(2011).
Because McKague failed to object to the prosecutor's use of the "GUILTY" slide
at 	trial, 	he 	"is deemed 	to 	have 	waived 	any 	error, 	unless 	the 	prosecutor's
misconduct was so flagrant and ill intentioned that an instruction could not have
cured the resulting prejudice."9 	State v. Emery, 174 Wn.2d 741, 760-61, 278
P.3d 653 (2012). McKague therefore has the burden of establishing that "(1) 'no
curative instruction would have obviated any prejudicial effect on the jury' and (2)
the misconduct resulted in prejudice that 'had a substantial likelihood of affecting
the jury verdict.'" 	Emery, 174 Wn.2d at 761 (quoting Thorgerson. 172 Wn.2d at
455). 	Reviewing courts "focus less on whether the prosecutor's misconduct was
flagrant or ill intentioned and more on whether the resulting prejudice could have
been cured." 	Emery, 174 Wn.2d at 762.
In Glasmann. during closing argument, the State presented several slides
containing Glasmann's booking photograph, where he appeared unkempt and
bloody. 	175 Wn.2d at 701, 705. The court described the slides as follows:
In one slide, the booking photo appeared above the caption, "DO
YOU BELIEVE HIM?" 	In another booking photo slide the caption
read, 	"WHY 	SHOULD 	YOU 	BELIEVE 	ANYTHING 	HE 	SAYS
ABOUT THE ASSAULT?" Near the end of the presentation, the
booking 	photo appeared 	three 	more times: 	first 	with 	the 	word
See 3 RP at 261-62.

No. 71436-8-1/6
"GUILTY" 	superimposed 	diagonally 	in 	red 	letters 	across
Glasmann's battered face. 	In the second slide the word "GUILTY"
was superimposed in red 	letters again in the opposite direction,
forming an "X" shape across Glasmann's face. In the third slide, the
word "GUILTY," again in red letters, was superimposed horizontally
over the previously superimposed words.
Glasmann. 	175 	Wn.2d 	at 	701-02 	(internal 	record 	citations 	omitted). 	The
prosecutor instructed 	the 	jury in closing argument that 	it should 	not believe
Glasmann's testimony, and it must determine whether he told the truth when he
testified. 	Glasmann. 175 Wn.2d at 701.
The Supreme Court found that the presentation of these slides to the jury
was 	improper for two 	reasons. 	First, 	the 	prosecutor 	altered 	the 	booking
photograph, admitted as an exhibit, by superimposing captions. 	Glasmann. 175
Wn.2d at 700, 706. 	Thus, the court concluded, by modifying the exhibits, the
prosecutor improperly submitted evidence to the jury that was not part of the trial.
Glasmann. 175 Wn.2d at 706. 	Second, the prosecutor expressed his personal
opinion of Glasmann's 	guilt through 	the 	slideshow 	and 	closing 	argument.
Glasmann. 	175 	Wn.2d 	at 	706-07. 	The 	court 	held 	that 	the 	prosecutor's
misconduct was flagrant and ill intentioned, and that instructions could not have
cured the prejudicial effect. 	Glasmann. 175 Wn.2d at 707.
Consistent with Glasmann. the prosecutor's use of the "GUILTY" slide
here amounted to improper conduct.10 The prosecutor altered the photograph of
10 We recently reviewed a similar case in State v. Hecht. 179 Wn. App. 497, 319 P.3d
836 (2014). 	The prosecutor there presented inflammatory slides to the jury during
closing argument. 	Hecht, 319 P.3d at 839. On two slides appeared the word "GUILTY"
in red and across a photograph of Hecht's face. 	Hecht. 319 P.3d at 839. An additional
slide, entitled "'DEFENDANT'S CREDIBILITY,' asked 'If he's not truthful about the little

No. 71436-8-1/7
McKague 	by cropping 	it and 	digitally 	placing 	the 	word 	"GUILTY" 	across 	it.
Moreover, the slide, coupled with the prosecutor's comment that McKague "is
guilty as charged," constituted an expression of the prosecutor's personal opinion
on McKague's guilt.11
We also find that the prosecutor's misconduct in presenting this highly
inflammatory slide had a substantial likelihood of affecting the jury's verdict and
was incurable by jury instruction. 	The prosecutor's use of the "GUILTY" slide
was a deliberate attempt to induce the jury to convict McKague of the charged
crimes. 	No purpose could 	be served 	by presenting this slide 	other than to
inflame the prejudice and passions of the jury. 	As described above, the word
"GUILTY" was printed in red and in large, capitalized letters across a photograph
of McKague's face, 	with 	arrows pointing toward the 	image. 	This depiction
compelled the jurors to reach a harsh verdict by "drawing the eye, implying
urgency of action, and evoking emotion." 	Hecht. 319 P.3d at 841. 	Given the
prosecutor's position of power and 	prestige, his expression of opinion as to
McKague's guilt potentially had significant persuasive force with the jury. 	See
Glasmann. 175 Wn.2d at 706.
things . . . [w]hy should you believe him when he denies the big things?', and answered
'YOU SHOULDN'T.'" Hecht. 319 P.3d at 839. 	Relying on Glasmann. we concluded that
the 	prosecutor's 	misconduct "was so flagrant and 	ill-intentioned that it caused an
enduring and resulting prejudice that could not have been neutralized by an admonition
to the jury." Hecht. 319 P.3d at 841.
We are also aware that our Supreme Court has granted review of a recent
decision 	from Division Two addressing 	whether the 	State committed 	prosecutorial
misconduct in closing argument when it presented a slideshow with prejudicial images.
State v. Walker. 178 Wn. App. 478, 315 P.3d 562 (2013) (pub. in part), rev, granted. 180
Wn.2d 1002 (2014). This issue was discussed in the unpublished portion of the opinion.
11 3 RP at 262.

No. 71436-8-1/8
In addition, the "GUILTY" slide was the final one presented during the
prosecutor's closing argument, leaving a lasting impression upon the jury before
it was excused for deliberation. 	Highly prejudicial images such as this one "may
be very difficult to overcome with an instruction," and are especially troublesome
when shown in the closing arguments of a trial. Glasmann. 175 Wn.2d at 707.
We 	recognize 	that 	the 	circumstances 	in 	Glasmann 	are 	slightly
distinguishable from those here. 	The cumulative effect of the 	multiple sides
shown to the jury in that case contributed to the 	court's decision to reverse
Glasmann's convictions. 	Glasmann. 175 Wn.2d at 710-14. 	Here, however, the
prosecutor's misconduct was limited to a single slide. 	But this distinction does
not 	render 	the 	prosecutor's 	presentation 	of 	the 	"GUILTY" 	slide 	any 	less
prejudicial. 	The slide was a calculated device employed by the prosecutor to
manipulate the jury's reasoned deliberation and impair its fact finding function. 	It
substantially undermined McKague's right to a fair trial.
We reverse McKague's convictions and remand for a new trial.12 	If, on
remand, McKague is ordered to wear a physical restraint of any kind throughout
trial, we instruct the trial court to conduct a hearing and enter findings into the
record justifying the use of such restraint.13 	See State v. Hartzog. 96 Wn.2d 383,
12 Because we reverse McKague's convictions and sentence, and remand for retrial, we
do not reach his remaining contentions.
13 In his PRP, McKague asserts several constitutional claims of error relating to the
shock device he was required to wear during trial. 	Physical restraints are disfavored
because they may imperil an accused's constitutional right to a fair trial by reversing the
presumption of innocence. 	State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999).
They can also infringe upon an accused's constitutional rights to testify on his or her
behalf and to confer with counsel during the course of trial. 	State v. Damon. 144 Wn.2d
8

No. 71436-8-1/9
400, 635 P.2d 694 (1981) ("A trial judge must exercise discretion in determining
the extent to which courtroom security measures are necessary to maintain order
and prevent injury. That discretion must be founded upon a factual basis set forth
in the 	record."); 	see 	also 	Damon. 	144 	Wn.2d 	at 	691 	(Before 	requiring a
defendant to wear a restraint during trial, the court must consider on the record a
number of factor 	such 	as 	the 	seriousness 	of the 	charges, 	the 	defendant's
physical characteristics, previous escape attempts, the physical security of the
courtroom, and the availability of alternatives.).
j 	sl 	A^vf 	,^n
WE CONCUR:
686, 691, 25 P.3d 418 (2001). 	Here, the trial court did not consider on the record
whether the shock device was necessary. 	But we need not decide whether the trial
court committed reversible error by failing to do so.