The Washington State Court of Appeals has ruled a Tacoma man serving 20 years for robbery and kidnapping deserves a new trial because Pierce County prosecutors committed misconduct during his original trial and his first appellate attorney did not make an issue of it.
In a decision released this week, a three-judge panel for Division II overturned Shamarr Parker’s convictions for first-degree robbery and first-degree kidnapping and sent his case back to Superior Court for further proceedings.
The panel ruled that deputy prosecutors Jason Ruyf and Angelica Williams committed misconduct during closing arguments in Parker’s 2010 trial by referring to the case as “a waking nightmare” for the victim and repeatedly entreating jurors to “imagine her terror.”
That was an appeal to the “passion and prejudices” of the jury, which amounted to misconduct, the panel ruled.
Parker was arrested in 2008 and charged with first-degree rape, first-degree robbery and first-degree kidnapping after a 17-year-old girl told police he abducted her from a bus stop and then raped and robbed her at knifepoint in a secluded area.
“Again, imagine her terror. Nowhere to run. Nowhere to go for help. Nobody to call,” one of the deputy prosecutors said during the closing argument. “It’s just her, the defendant and the knife.”
Parker’s defense attorney, Les Tolzin, objected repeatedly to the comments, but Superior Court Judge Bryan Chushcoff overruled the objections.
The jury ultimately convicted Parker, now 40, of the robbery and kidnapping charges but could not agree on the rape count, which was dismissed.
Writing for the unanimous panel, appellate Judge Lisa Sutton said the prosecutors’ comments “served no purpose other than to evoke the jurors’ sympathies (for the victim) and arouse their prejudice against Parker.”
“In cases in which credibility determinations are key, there is a substantial risk that the jury’s verdict could be affected by an improper appeal to the jury’s emotions,” Sutton continued.
Parker first appealed his case in 2011, but his appellate attorney then, Rebecca Wold Bouchey, did not raise prosecutorial misconduct as an issue and the convictions were upheld.
A new appellate attorney, Kathryn Russell Selk, filed a secondary appeal in 2013, arguing that Bochey had erred by not raising the misconduct issue.
Sutton and her colleagues, Judges Thomas Bjorgen and Linda Lee, agreed.
“… we hold that there was a substantial likelihood that the misconduct affected the verdict and if appellate counsel had raised the claim on direct appeal, we would have found prosecutorial misconduct,” Sutton wrote.
“Thus, Parker was prejudiced because he would have prevailed had the challenge been raised in his direct appeal.”
A new trial date has not been set.