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Court of Appeals Division I
State of Washington

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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 66095-1
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )
                                            )
Tyler B. Ljubich,                    )      UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED:  April 23, 2012
________________________________)

       Becker, J.  --  The primary issue in this appeal is prosecutorial misconduct. 

We conclude the prosecutor's remarks made in closing argument were 

misconduct and remand for a new trial.

       Tyler Ljubich was charged with first degree robbery for allegedly robbing 

a pharmacy at gunpoint in West Seattle on September 16, 2009.  A jury trial 

lasting five days was held in August 2010.  According to testimony presented at 

trial, former pharmacy owners Arlene Mark-Ng and Michael Ng were clearing out 

the retail space of the pharmacy, which they had recently sold, when a man 

entered the store, pushed Mark-Ng up against a wall, pointed a gun at her, and 

demanded OxyContin. The Ngs explained that they had recently sold the 

pharmacy, so they had no drugs, but they turned over some expired 

prescriptions, empty pill bottles, and several hundred dollars from the cash  

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register.  The man placed the pill bottles and money into a white plastic garbage 

bag and left.  Mark-Ng followed him out onto the street and observed him head 

up the street and turn toward 44th Street, to the northwest.  

       When police arrived, the Ngs described the suspect as a white male of 

medium complexion, brown hair, six foot two inches in height, age 25, and an 

athletic build, approximately 170 pounds.  They also described him as wearing 

dark sunglasses, gloves, a black baseball cap, a gray sweat shirt or jacket, and 

blue denim pants. 

       Police set up a containment perimeter around the pharmacy. While 

standing patrol a couple of blocks away, Officer James Patchen was approached 

by an individual who volunteered information concerning a car he had observed 

being parked in the street with its trunk left open.  He described the car, 

including a partial license plate number, and gave physical descriptions of the 

driver and a man who later came running up to the car and threw a white plastic 

bag into the trunk before sitting into the passenger seat.  He told Patchen the car 

had departed to the west along Dawson Street.  He described the man who ran 

up to the car as a "tall and skinny" white male, age 17 to 22, six foot two inches, 

180 pounds, wearing a white t-shirt and baggy jeans.  The informant refused to 

identify himself.  Patchen detailed the informant's statements in his report.  

       Two days later, Detective Thomas Healy ran the partial license number in 

a department of licensing database and identified a car potentially matching the 

description given by the informant.  The car was registered to Mario Clark at an 

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address in West Seattle to the northwest of the pharmacy.  Healy and another 

officer went to this address and observed three men outside looking at the 

engine of the car.  Two of the man matched the descriptions given by the 

informant. One of the men, a tall slender white male, was Ljubich.  Healy and 

his partner approached and identified themselves as Seattle police.  Ljubich 

turned and ran.  He was apprehended and arrested.  Mark-Ng and Ng were later 

presented with a photo montage and both positively identified Ljubich as the 

robber.   

       Before trial, a hearing was held on the defense's motion to suppress the 

informant's statements.  The matter was discussed and argued by counsel 

during three days of pretrial motions. Defense counsel argued the statements 

were inadmissible hearsay.  Counsel pointed out that nothing was known of the 

informant's identity or motives in making the statements to Officer Patchen and 

that admission of the statements would violate Ljubich's right to confrontation.  

Counsel proposed that it would suffice for Patchen and Healy to testify simply 

that "Our investigation led us to a car," without providing the details of the 

informant's statements. 

       The prosecutor initially sought to admit the statements under exceptions 

to the hearsay rule for eyewitness identification or present sense impressions.  

The court disagreed, but suggested that the evidence could be admitted as 

nonhearsay "background information," "because it explains why the officer did 

what he did, or how the investigation proceeds."  On the second day of pretrial 

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motions, the prosecutor adopted this theory and cited two authorities to support 

the "background information" means of admitting the statements: State v. 

Mason, 127 Wn. App. 554, 126 P.3d 34 (2005), aff'd on other grounds, 160 

Wn.2d 910, 162 P.3d 396 (2007), cert. denied, 553 U.S. 1035 (2008), where the 

court permitted an officer to testify about statements by a murder victim because 

those statements were offered only to explain why the officer seized the victim's 

checkbook and searched the defendant's home; and a comment by Tegland 

citing recent case developments, including Mason, and observing that hearsay 

statements could be admitted "to provide background or context . . . 'Typically to 

explain why the police or others proceeded to investigate the defendant.'" See

5D Karl B. Tegland, Washington Practice:  Courtroom Handbook on Washington
Evidence ER 801(a), (b), (c) author's cmt. 9, at 393-94 (2009-10 ed.).1  

       1 The court did not express any opinion regarding the prosecutor's citation to 
this section of Tegland beyond noting: "Tegland didn't write the rules of evidence; he 
helps us to understand them, and of course he is quite authoritative."  We have 
reviewed the comment in question.  We observe that it provides: 
       Counsel seeking to avoid the hearsay rule have occasionally succeeded 
       by persuading the court that the statement in question was not offered to 
       prove the truth of the matter asserted, but was instead offered for the 
       limited, nonhearsay purpose of providing background or context 
       (typically to explain why the police or others proceeded to investigate the 
       defendant).
              This argument -- if it succeeds -- is highly desirable from the 
       prosecution's point of view because it overcomes not only the hearsay 
       rule, but also the defendant's Sixth Amendment right to confrontation. . . 
       .
              . . . .
              Despite the success of the argument in several recent cases (see 
       above), the argument remains an argument of last resort.  Many trial 
       judges instinctively regard the argument as all-too-clever maneuvering to 
       try to avoid the hearsay rule, and instinctively believe that a hearsay 
       objection should be sustained.  Moreover, the argument is a clear signal 
       that the proponent of the evidence (typically the State) has a serious 
       hearsay problem and is forced to make a questionable argument in an 
       effort to introduce the evidence.
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       Defense counsel argued in reply that the informant's statements were 

inadmissible at trial under State v. Aaron, 57 Wn. App. 277, 787 P.2d 949

(1990), because the court there ruled that "[w]hy the officer thought what he did 

is completely irrelevant to the issue of whether or not a person is guilty of a 

crime." Counsel read aloud to the court the following holding from Aaron: 

       [T]he officer's state of mind in reacting to the information he 
       learned from the dispatcher is not in issue and does not make 
       "determination of the action more probable or less probable than it 
       would be without the evidence." . . . It seems clear that the State 
       introduced Officer Gough's testimony solely to suggest to the jury 
       that the jacket containing the [stolen articles] . . . belonged to 
       Aaron.

Aaron, 57 Wn. App. at 280.  Defense counsel agreed that hearsay evidence 

relevant to an officer's state of mind was available during hearings on pretrial 

motions, but the evidence was inadmissible before the jury at trial because "the 

only relevance of that would be to specifically tell the jury, 'There really was a 

car and there really was a white man who got into it, and there really was this 

Hispanic driver in that car.'"  Counsel additionally argued that admission of the 

informant's statements was prejudicial to Ljubich because they provided "the one 

and only piece of evidence making that link" between the robbery and Ljubich: 

"We are talking about if we leave this evidence out, all we have is there was a 

robbery with a tall, thin, white man; they went to a house and Mr. Ljubich ran.  

              The cases cited above do not guarantee that the argument will 
       succeed.  The argument has probably failed as many times as it has 
       succeeded.
5D Tegland, ER 801(a), (b), (c) author's cmt. 9, at 393-94.

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That is the only connection."

       The court expressed concern that without evidence of the informant's 

statements, the jury could conclude that the police investigation leading to Mario 

Clark's house was "bad police work," and "totally random." The court admitted 

the informant's statements for the limited purpose of providing background 

information to explain the officers' investigation but agreed that limiting 

instructions would be necessary.  The court additionally cautioned the 

prosecutor against referring to the information during his opening statement.

       At trial, over defense objection, Officer Patchen was permitted to recount

in detail his conversation with the unidentified informant.  The court, however,

first instructed the jury:

              I am allowing the evidence, but only for a very limited 
       purpose.

              You may consider the testimony that this witness gives as to 
       the statements of someone outside of court, only for determining 
       what this officer did next, what he or other officers did when they 
       heard or learned of that information.

              It is not -- that statement is not admitted as evidence for the 
       truth of what might be contained in the statement, and you may not 
       consider the statement for any purpose other than the limited one I 
       have given you.  

Detective Healy also testified in detail as to what the informant told Patchen.  At 

defense counsel's urging, the court again instructed the jury:

              I have permitted certain testimony to come in as to out-of-
       court statements made by other persons.  This comes in only as to 
       what the detective knew or thought he knew at the time.  It doesn't 
       come in for the truth of the matter asserted.

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              He is permitted to say what he understood at the time, and 
       you can then judge whether the steps that he next took are 
       consistent with that information.

              Again, that information is not admitted for the -- the 
       statements are not admitted for the truth of what was said, the 
       falsity of what was said; they only come in as to what the officer 
       does next.

       Following the evidentiary portion of the trial, the jury was instructed 

verbally and in writing: 

              The Court ruled that Detective Healy and Officer Patchen 
       could testify about statements made out-of-court by an unidentified 
       witness.  The Court allowed the evidence but only for a limited 
       purpose.
              You may consider the testimony as to the out-of-court 
       statement only for the purpose of what the officer or detective did 
       as a result of hearing or learning this information.
              The statement is not admitted for the truth of the out-of-court 
       statement.  You may not consider the statement for any other 
       purpose.  

       Before closing arguments, defense counsel made a "cautionary request"

that the State not refer to the informant's statements in closing, "for anything 

except to say officer Healy followed up on a hunch and went" to Mario Clark's 

address. The prosecutor replied that he would be "very cautious when I mention 

the information." The court agreed: "[O]f course the parties should be cautious.  

We have had a chance to think about, in general, this problem for a few days, so 

I will expect that that's going to show up in terms of how closing is made."  

       In his initial closing remarks, the prosecutor argued the jury's verdict 

should turn on whether it believed the Ngs' claims that Ljubich was the robber.  

In urging the jury to believe the Ngs, the prosecutor stated that there was 

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evidence corroborating their testimony: "We have corroboration." The 

prosecutor stated he wished to go through the elements of corroborative 

evidence "one at a time." The prosecutor stated that the "first corroborating 

evidence we have is the escape route" observed by Mark-Ng that led the robber 

northwest in the direction of 44th Street.  The prosecutor then continued, and the 

following exchange took place: 

              Then you heard hearsay statements, which is not for the 
       truth of the matter asserted, it is just for the investigation -- that 
       some man around here that Officer Patchen thinks could live 
       around there approached him and said, "I know why you're here.  I 
       saw suspicious activity right here.  There was a car with a trunk 
       opened, kind of fidgeting back and forth.  An Hispanic male, kind of 
       puffy hair -- that's what you are here for, and then soon thereafter I 
       saw a white male running this way towards this vehicle, about six 
       foot two inches, 170 pounds, with a white plastic bag.  And you 
       know what he did with that bag?  He threw it in the trunk, shut it, 
       got into the passenger side and they took off.  And the way they 
       took off was this way, left on -- I believe Southwest Dawson Street.  
       They took off this way."

              The reason that's kind of important and the reason I 
       mentioned that as the escape route is you heard Detective Healy's 
       testimony -- this is where they took off, Southwest Dawson Street.  
       This is where Mario Clark lives.  This is where he resides.

              And you also heard later that this is the area Tyler Ljubich, 
       the defendant, resides.

              So if you think about the escape route, that corroborates 
       where they were going and why they were going.  They were going 
       back home.

              [Defense counsel]:  Objection, Your Honor, this is improper 
       argument.  This is not evidence.

              [Prosecutor]:  It is not evidence because it is argument.

              THE COURT:  It is argument.

              Again, the jury has heard all of the evidence.  You may 

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       continue.  

The prosecutor went on to note Detective Healy's use of the partial license plate 

number provided by the informant to locate Mario Clark's car and home, and that 

Clark lived only 10 blocks away from the pharmacy.

       In rebuttal, the prosecutor referred once more to the informant's 

statements to resolve the discrepancy between how the Ngs described what the 

robber was wearing and how the informant described the clothing of the man he 

saw running.  The prosecutor argued that the discrepancy made sense if the jury 

inferred that Ljubich shed the hat, sunglasses, and gray sweat shirt as he fled 

the pharmacy in an attempt to change his appearance.  

       After a full day of deliberation, the jury submitted a note stating, "We are 

unable to reach an agreement." Before the court brought in the jury to discuss 

the note, defense counsel moved for a mistrial based on the prosecutor's use of 

the informant's statements as substantive evidence in closing argument and the 

trial court's failure to sustain the defense objection. The court denied the 

motion.

       After polling the jurors regarding the note, the court directed them to 

return the following day to resume deliberations.  The following day the jury

reached agreement and convicted Ljubich as charged for first degree robbery.  

Before the verdict was entered, defense counsel renewed her motion for a 

mistrial.  The court denied it summarily after the jury read its verdict.  

       On October 10, 2010, Ljubich was sentenced within the standard range

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for 41 months' incarceration.  Nine months later, on July 11, 2011, the court 

entered CrR 3.6(b) findings of fact and conclusions of law on the pretrial 

evidentiary hearing.

                         PROSECUTORIAL MISCONDUCT

       Ljubich seeks reversal of his conviction on a theory that the prosecutor's 

statements during closing argument violated his right to a fair trial.  Ljubich 

contends the prosecutor improperly employed the informant's statements as 

substantive evidence to corroborate the Ngs' identifications of Ljubich as the 

man who robbed them.  

       To prevail on a claim of prosecutorial misconduct, the defendant bears 

the burden of showing both improper conduct and resulting prejudice.  State v. 

McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006), citing State v. Brown, 132 

Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).  

Comments made by a prosecuting attorney during closing argument may 

constitute improper misconduct entitling a petitioner to a new trial.  State v. 

Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).  The prejudicial effect of a 

prosecutor's improper comments is not determined by looking at the comments 

in isolation but by placing the remarks "'in the context of the total argument, the 

issues in the case, the evidence addressed in the argument, and the instructions 

given to the jury.'"  McKenzie, 157 Wn.2d at 52, quoting Brown, 132 Wn.2d at 

561. Prejudice occurs only if "there is a substantial likelihood the instances of 

misconduct affected the jury's verdict."  State v. Pirtle, 127 Wn.2d 628, 672, 904 

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P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).

       In closing argument, a prosecuting attorney has wide latitude in drawing 

and expressing reasonable inferences from the evidence.  State v. Gentry, 125 

Wn.2d 570, 641, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). It is, 

however, improper for a prosecutor to argue from facts not in evidence.  See

State v. Staten, 60 Wn. App. 163, 173, 802 P.2d 1384, review denied, 117 

Wn.2d 1011 (1991), citing State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 

(1988).  A prosecutor may not suggest that evidence not presented at trial 

provides additional grounds for finding a defendant guilty.  State v. Russell, 125 

Wn.2d 24, 87, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). 

       We conclude the prosecutor's use of the informant's evidence during 

closing argument was improper.  The prosecutor's statements sent a clear 

suggestion to the jury that the informant's statements -- which were not admitted 

for their truth -- should be taken as true:  that a slender white man actually did

come running toward a parked car, that the man actually was carrying a white 

plastic bag, and that a car bearing the informant's description actually did drive 

off toward the northwest in the direction of Ljubich's home.  In closing, the 

prosecutor recounted these details given by the informant and then stated that 

this information was "kind of important" because it corroborated the escape route 

taken by the robber and his getaway vehicle:  "So if you think about the escape 

route, that corroborates where they were going and why they were going.  They 

were going back home."

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       These statements were improper.  The trial court erred by overruling 

defense counsel's objection.  In suggesting to the jury that the informant's 

statements could be employed for any corroborative purpose, the prosecutor 

confused and contravened the court's clear limiting instructions.  Before trial, the 

court clearly explained the purpose of the limiting instruction:  so that the jury 

"will understand that there is no evidence that there was a car, that there was a 

tall skinny white man on such and such a street.  Ms. Ng can testify to what she 

saw, but on the other street . . . there is no substantive testimony that that was 

there."  By overruling defense counsel's objection, the trial court sent a 

confusing message to the jury as to whether or not they could employ the 

informant's statements in corroboration of the State's evidence.

       The State's arguments to the contrary are not persuasive.  The State

contends that the escape route corroboration theory articulated by the 

prosecutor during closing argument was properly limited to facts in evidence:

that Ljubich was ultimately "apprehended to the northwest of the pharmacy" and 

that detectives determined that he actually lived to the northwest of the robbery 

scene.  But as recounted above, the prosecutor specifically asked the jury to 

observe that the informant's statements corroborated the escape route.  

       We are additionally unpersuaded by the State's argument that the 

prosecutor cured any impropriety in the comments by "noting the limited purpose 

of the testimony" before referring to the informant's statements.  Although a jury 

is presumed to follow the court's limiting instructions, State v. Copeland, 130 

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Wn.2d 244, 284, 922 P.2d 1304 (1996), the prosecutor's statements 

contravened those instructions.  His repetition of the limited purpose under 

which the evidence was allowed was meaningless when immediately followed by

statements that clearly exceeded the limitation.

       We also conclude the prosecutor's use of the informant's statements as 

corroboration was prejudicial.  The State contends there was no prejudice, 

because the informant's statements to Officer Patchen carried little weight 

compared to the two independent eyewitness identifications provided by the 

Ngs.  Detective Healy testified that both Ngs gave "immediate and confident"

identifications of Ljubich in the photo montage.  At trial, Mark-Ng said she was 

"100 percent sure" Ljubich was the robber, and Ng said he was "90 percent 

sure."  

       But there were several reasons a reasonable juror could have believed 

the Ngs were mistaken.  There were notable differences between the 

descriptions given by the Ngs and Ljubich's actual appearance.  Ng, for 

example, explained both before and during trial that the robber's eyes were a 

distinctive and memorable feature because they were "deep set" and "one eye 

was looking one direction and the other one was looking straight," as if 

"[s]kewed, maybe." But close-up photographs of Ljubich's face provided in the 

photo montage reveal no such peculiarity.  Mark-Ng informed investigators after 

the incident that the robber's eyes were brown, while the photo montage shows 

that Ljubich's eyes are a light green color.   

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       The defense also highlighted other factors that plausibly called into 

question the reliability of the Ngs' identifications.  Although both Ngs' gave 

statements to investigators describing the robber's eyes, they informed the 

officer soon after the robbery that the man wore "dark sunglasses" covering his 

eyes.  The Ngs are both of Asian descent, while Ljubich is Caucasian.  A 

defense expert testified on the topic of "cross-racial identification," and informed 

the jury that the theory "demonstrates, generally speaking, . . . that people are 

less able to recognize and identify members of other races then they are able to 

recognize and identify members of their own race."  Mark-Ng testified that when 

the robber entered the pharmacy she and Ng both believed it was one of their

former employees named Raphael, and that Raphael was playing a joke on 

them.  These statements may also have called into question the Ngs' ability to 

accurately identify faces.  

       Added to this, there was a dispute at trial over whether the Ngs had been 

informed of Ljubich's arrest and subsequent release before being shown the 

photo montage.  The Ngs claimed they had, while Detective Healy claimed they 

had not.  Healy agreed that if he had informed the Ngs before showing them the 

montage that a suspect had been arrested, it could have impacted the reliability 

of their identifications.  A defense expert confirmed that crime victims are more 

likely to select a person from a photo montage if they are told in advance that 

police have a suspect.  

       The State admits that its case "relied upon the ability of the Ngs to identify 

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Ljubich as the same person that robbed them."  There was no direct physical 

evidence linking Ljubich to the robbery, such as fingerprints or surveillance 

video. None of the items taken from the Ngs were ever recovered, despite a 

search of Clark's car and Ljubich's home.  Seen against this backdrop, any 

improper use of evidence to corroborate the Ngs' identifications had a 

"substantial likelihood" of affecting the jury's verdict against Ljubich.  Brown, 132 

Wn.2d at 561.

       Because no error has been assigned on appeal to the court's decision to 

admit evidence of the informant's statements to Officer Patchen, we express no 

opinion as to the soundness of that decision.  And because we conclude 

reversal is required, we need not resolve the remaining challenge on appeal to 

the court's belated entry of CrR 3.6 findings of fact.

       Reversed and remanded for a new trial.

WE CONCUR:

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