Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  24944-1-III
                                                )         (consolidated with
                      Respondent,               )          No. 29337-8-III)
                                                )
       v.                                       )         Division Three
                                                )
JACKIE R. BURTON,                               )         OPINION PUBLISHED
                                                )         IN PART
                      Appellant.                )
                                                )

       Siddoway, J.  --  Jackie Burton appeals her conviction of solicitation to commit 

murder in the first degree, imposed after she paid an undercover officer to kill her ex-

employer/lover. She claims a right to a new trial based on an extraordinary delay in 

preparation of the transcript of her trial and on other grounds.  While the court reporter's

delay in producing the trial transcript was inexcusable, the record was settled in a 

permitted and reliable manner.  We find no demonstrable prejudice to her appeal as a 

result of the three-year delay and the delay, standing alone, does not warrant a new trial.  

For that reason, and finding no other error, we affirm. 

Nos. 24944-1-III; 29337-8-III
State v. Burton

                      FACTS AND PROCEDURAL BACKGROUND

       Jackie Burton worked as a paralegal for attorney Peter Dahlin from 1991 to 2004.  

The two began an intimate and turbulent relationship in the fall of 2002, after Ms. Burton 

separated from her husband.  Ms. Burton admits that she was by that time an alcoholic; 

her problems with alcohol began during the difficult final years of her marriage.  Mr. 

Dahlin repeatedly fired Ms. Burton for consuming alcohol at work after their personal

relationship began.  He nonetheless rehired her after each termination because his office 

"was in shambles" without her.  Report of Proceedings (RP) (Dec. 5, 2005) at 104.  For 

her part, Ms. Burton claims that Mr. Dahlin was physically and mentally abusive.  Their 

professional and personal relationship came to a definitive end in December 2004, after 

Mr. Dahlin watched Ms. Burton slam her car into his car, outside his home.  

       Shortly thereafter Ms. Burton began working for another attorney, Michael 

Riccelli, where she was introduced to Jon Ballentine, one of Mr. Riccelli's clients, in 

early January 2005.  Mr. Ballentine was introduced as someone who provided protection 

services, and he handed her a business card for his security business, "Large White Man, 

Inc." RP (Dec. 6, 2005) at 46. The two briefly discussed problems she was having with 

Mr. Dahlin.  Ms. Burton met shortly thereafter with Mr. Ballentine and two of his 

associates (introduced to her as "Animal" and "Daddy Rat") at a local bar.  Id. at 48. Ms. 

Burton spoke to Mr. Ballentine separately at one point during the evening, in the privacy 

                                               2 

Nos. 24944-1-III; 29337-8-III
State v. Burton

of his car, and asked whether he could be hired to kill Mr. Dahlin.  Mr. Ballentine said 

that he would think about it.  

       The next day, Ms. Burton called Mr. Ballentine to follow up on her expressed 

interest in having him kill Mr. Dahlin.  Her persistence led Mr. Ballentine to conclude 

that she was "going to hurt somebody," prompting him to call Mr. Riccelli and report the 

conversations.  RP (Dec. 5, 2005) at 65. Mr. Riccelli arranged for Mr. Ballentine to meet 

with a homicide detective with the Spokane Police Department. Mr. Ballentine met with 

the detective and agreed to cooperate with Spokane police. 

       At the request of detectives, Mr. Ballentine called Ms. Burton to see if she wanted 

to meet with a hit man he supposedly knew, who in reality would be undercover detective 

Leroy Fairbanks.  Ms. Burton said she did, and arrangements were made for her to meet 

with Mr. Ballentine and the purported hit man in a room at a local motel. Officers 

obtained a court order permitting them to wire the room with audio and video recording 

equipment.  The recording of the meeting captured Ms. Burton telling Detective 

Fairbanks that she wanted Mr. Dahlin dead and that she wanted his death to be painful.  

She was also recorded giving him $500 in cash as a down payment and a drawing of the 

interior of Mr. Dahlin's residence.  At the conclusion of the meeting, Ms. Burton was 

allowed to leave, with no indication anything was amiss.

       Police promptly contacted Mr. Dahlin, reported the situation, and asked if he 

                                               3 

Nos. 24944-1-III; 29337-8-III
State v. Burton

would cooperate by posing for photographs in which he would appear to have been

beaten and killed.  The photographs would be presented to Ms. Burton as proof that the 

hit had been completed.  Mr. Dahlin agreed, a makeup artist was brought in to simulate 

trauma and pallor, and photos were taken.  Later that day, Ms. Burton was contacted by 

Detective Fairbanks and agreed to meet him in a grocery store parking lot.  During this 

encounter, which was also recorded, Ms. Burton reviewed the photos, expressed her

gratitude, and gave the detective an additional $500.  Ms. Burton was immediately

arrested and was later charged with solicitation to commit first degree murder.  

       Before trial, Ms. Burton moved in limine to exclude any evidence of prior bad acts

on her part. The State responded that it did not intend to introduce the incident involving 

Ms. Burton slamming her car into Mr. Dahlin's car unless it became relevant in light of 

evidence presented by the defense.  The court invited any reply by defense counsel, who 

accepted the State's response as adequate.  The court reserved ruling on the motion, 

commenting:

       [O]bviously, [c]ounsel, if indeed the entrapment defense is presented, 
       which it appears it will be, and particularly further if psychological 
       testimony on the point of particular susceptibility to inducement is 
       admitted, then it may . . . well be that the State would be within its rights 
       from [an] evidentiary perspective in raising such matters, so we'll reserve 
       that one.

RP (Dec. 1, 2005 a.m.) at 10.  

                                               4 

Nos. 24944-1-III; 29337-8-III
State v. Burton

       At trial, defense counsel detailed Ms. Burton's version of events in opening 

statement. According to Ms. Burton, she only told Mr. Ballentine that she wanted Mr. 

Dahlin to leave her alone; Mr. Ballentine suggested that he and his crew could "rough up"

Mr. Dahlin, RP (Dec. 6, 2005) at 52; Mr. Ballentine misread her intentions and went 

forward with arrangements to have Mr. Dahlin killed; upon learning of his arrangements, 

she insisted that it was a misunderstanding; and Mr. Ballentine, evidently concerned she 

might report his conduct to police, decided to approach law enforcement first and shift all 

responsibility to her.  She claimed that her continuing discussion of the plan after Mr. 

Ballentine began cooperating with police was solely because he convinced her it was too 

late to turn back.  Defense counsel told the jury that the evidence would show that "what 

took place on that tape and the crime that was committed here was not the design, the 

idea, or the desire of Ms. Burton, but was a plan, a design and script that was carefully 

outlined by law enforcement agents and Mr. Jon Ballentine." RP (Dec. 5, 2005) at 60.  

       When it came time in the State's case to examine Mr. Dahlin, the prosecutor 

elicited his testimony to several hostile acts committed against him or his property by Ms. 

Burton as their relationship deteriorated.  Many of the questions and answers drew no

objection from defense counsel.  Defense counsel ultimately did object, complaining at 

sidebar that the prosecutor's questions were improper given representations made when 

the motion in limine was heard.  The court sustained the defense objection to further "bad 

                                               5 

Nos. 24944-1-III; 29337-8-III
State v. Burton

acts" evidence, with one exception: it allowed the State to inquire into the final car-

ramming incident.  Id. at 107.  The court also offered to give a limiting instruction, but 

defense counsel declined, stating that he was "caught at this point" because "[t]he damage 

is already done." Id. at 109.  

       In the defense case, Ms. Burton testified to a version of events that contradicted 

Mr. Ballentine's in nearly every respect. She testified that Mr. Ballentine essentially 

forced her to commit the crime, leading her to believe that he had made irreversible 

preparations to have Mr. Dahlin killed.  She explained that her chronic intoxication and 

her fear of Mr. Ballentine left her with no other choice but to go through with the 

meetings.  She also claimed to have been groomed by Mr. Ballentine to say what she said 

during the recorded conversation at the motel.  

       The jury was instructed on the defense of entrapment.  The instruction, which was 

otherwise drawn from the Washington pattern instruction, omitted its language addressing 
the burden of proof.1  The omitted language would have explained that the defendant 

       1 As given, the instruction stated:
              Entrapment is a defense to a criminal charge if the criminal design 
       originated in the mind of law enforcement officials, or any person acting 
       under their direction, and the defendant was lured or induced to commit a 
       crime which the defendant had not otherwise intended to commit.
              The defense is not established if the law enforcement officials did no 
       more than afford the defendant an opportunity to commit a crime.
Clerk's Papers (CP) at 68 (Instruction 10); 11 Washington Practice: Washington Pattern 
Jury Instructions: Criminal 18.05 (3d ed. 2008) (WPIC). 

                                               6 

Nos. 24944-1-III; 29337-8-III
State v. Burton

bears the burden of proving the defense of entrapment by a preponderance of the 
evidence.2  No objection was made to the instruction as given.  

       During the State's closing argument, the prosecutor addressed what it means to 

have an "abiding belief" in the truth of the charge within the meaning of the jury 
instruction on the burden of proof.3 The prosecutor suggested that if jurors were asked a 

year from trial at a cocktail party what the case was about, and if they would reply "the 

case was about a woman who hated her bos[s] and wanted to . . . kill him and [thought 

she was hiring a] hit man and paid [$500 to an undercover cop] and the whole thing was 

on videotape," then Ms. Burton was guilty and they would have an abiding belief in her 

guilt.  RP (Dec. 6, 2005) at 127. No objection was made to the characterization.  

       2 The last paragraph of the pattern instruction states, in its entirety:
              The defendant has the burden of proving this defense by a 
       preponderance of the evidence.  Preponderance of the evidence means that 
       you must be persuaded, considering all the evidence in the case, that it is 
       more probably true than not true. If you find that the defendant has 
       established this defense, it will be your duty to return a verdict of not guilty 
       [as to this charge].  
WPIC 18.05 (alteration in original).

       3 The burden of proof instruction, instruction 3, speaks of "abiding belief" in the 
following context:
              A reasonable doubt is one for which a reason exists and may arise 
       from the evidence or lack of evidence.  It is such a doubt as would exist in 
       the mind of a reasonable person after fully, fairly and carefully considering 
       all the evidence or lack of evidence.  If, after such consideration, you have 
       an abiding belief in the truth of the charge, you are satisfied beyond a 
       reasonable doubt.
CP at 61.

                                               7 

Nos. 24944-1-III; 29337-8-III
State v. Burton

       Ms. Burton was found guilty by the jury and sentenced to 15 years.  She timely 

appealed.  

       Consideration of Ms. Burton's appeal has been significantly delayed.  

       The judgment and sentence was entered on February 3, 2006.  A trial transcript 

was requested by Ms. Burton in March 2006, and it was to be produced by the court 

reporter at the trial, Loni Smith, by the end of May. Ms. Smith resigned her position with 

the superior court in early May 2006 and moved to Utah.  The due date to prepare the 

transcript was thereafter extended by this court to mid-September. When the transcript 

was not produced by the extended deadline, we remanded the case to the superior court in

late September in order to address Ms. Smith's failure to produce the transcript. 

       In October 2006, Ms. Smith was ordered by the superior court to send all trial 

materials in her possession to the court so that an alternate court reporter could be 

appointed. She complied. In late October 2006, an alternate court reporter was 

appointed. The appointee was unable to produce a transcript from the provided materials 

due to incompatible compact discs containing the stenographic record and missing or 

inoperable audio records.  After attempting unsuccessfully to prepare a transcript, the 

alternate court reporter notified the court that only Ms. Smith would be able to produce

an accurate transcription of the proceedings.

       Ms. Smith was reappointed as the official court reporter on June 26, 2007. On the 

                                               8 

Nos. 24944-1-III; 29337-8-III
State v. Burton

same day, the superior court entered an order requiring her to produce immediately the 

trial transcript.  She did not comply.  As a result, the Spokane County Prosecutor filed a 

motion for civil contempt against her.  The superior court entered an order to show cause.

Ms. Smith failed to appear at the show cause hearing scheduled for October 15, 2007. 

       Upon her failure to appear, the superior court entered an order authorizing the 

issuance of a civil bench warrant for Ms. Smith's arrest, setting bond in the amount of 

$5,000.  The bench warrant issued on June 2, 2008. Ms. Smith was arrested by the 

Hurricane, Utah police on February 8, 2009, and was booked into the Purgatory 

Correctional Facility in Hurricane, Utah.  Ms. Smith bonded out with a promise to 

contact the Spokane superior court within 10 days.  She made contact as agreed and a

show cause hearing was coordinated with her for March 18, 2009.  

       Having still received no transcript, Ms. Burton had moved in early February 2009

to vacate the judgment and sentence.  The motion was denied on February 27, with the 

court finding that "new circumstances have developed which indicate that there is reason 

to believe that a transcript of the trial will be completed within a reasonable period of 

time." Clerk's Papers (CP) at 233.  The transcript was finally produced by Ms. Smith on 

April 21, 2009 -- three years from the date it was originally due.

       The transcript as provided contains hundreds of typographical and stenographical 
errors, some of which render portions of the transcript difficult to decipher.4 In response 

                                               9 

Nos. 24944-1-III; 29337-8-III
State v. Burton

to Ms. Burton's motion objecting to the transcript, the trial court entered an order in 

November 2009 directing trial counsel to settle the record.  The order directed Ms. 

Burton to identify passages in the transcript requiring clarification or correction and

directed both trial counsel, from that identification, to determine to the best of their 

recollection, trial materials and notes, what the record should reflect.  Ms. Burton 

identified 128 passages in the record requiring clarification.  The State submitted a 14-

page affidavit providing its clarification of the challenged portions of the record based on 

trial counsel's memory, trial notes, police reports, and the transcript itself.  It also noted 

those portions of the transcript identified by Ms. Burton which, in its view, required no 

clarification. Ms. Burton's trial counsel filed a certificate stating his belief that the 

       4 For example, the prosecutor's closing remarks on "abiding belief" appear in the 
transcript as follows:  
       So think about a situation where you're a year from now at cocktail party a 
       guest this time ooth Chris matter something like that and TV story comes 
       up something comes up, and the topic of juror service comes as sometimes 
       does the oirj sperj speakings with said waling var been on a jury and 
       respond smashing I was, what was of the case about.  
              the case was about a woman who hated her bos and wanted to diel 
       kill him and thiewt they was hag a hit man and paid 5 fine to aundercover 
       and the whole thing was on videotape.
              In a nut sheal ladies and gentlemen if that is how you believe you 
       will describe this case a year from now, then Ms. Burton is guilty of the 
       crime of sew list tation of mered in first-degree that's abelief abiding in the 
       future.
RP (Dec. 6, 2005) at 127-28.  In settling the record, the State provided a clarification, 
discussed below.

                                               10 

Nos. 24944-1-III; 29337-8-III
State v. Burton

State's clarification "is accurate to the extent it describes the general nature of the 

testimony" but added that "without the specific verbatim testimony, I believe they are 

inadequate and no further clarification can be made." CP at 288.  

       In April 2010, the trial court directed Ms. Burton's counsel to file any further 

objection to the record.  In response, she renewed her motion to vacate the judgment.  Her 

motion was denied in late July after the trial court -- the same judge who had presided at 

the criminal trial -- determined that the procedure for supplementation of the record laid 

out in RAP 9.4 and 9.5 had been followed and that "[t]he record satisfactorily recounts 

the events material to the issues on appeal."  CP at 335 (Findings of Fact 9, 10).  

       Ms. Burton appealed the order denying her motion to vacate the judgment.  Her 

two appeals were consolidated for review.

                                         ANALYSIS

                                               I

       We first address Ms. Burton's argument that she is entitled to a new trial due to 

the inordinate amount of time it took to obtain the trial transcript.  

       The United States Constitution does not require the states to provide convicted

defendants with an appeal, nor is the right to a speedy appeal contemplated in the Sixth 
Amendment.  Ms. Burton therefore has no right to a speedy appeal, as such.5  

       5 In State v. Lennon, 94 Wn. App. 573, 577, 976 P.2d 121, review denied, 138 
Wn.2d 1014 (1999), the defendant suggested that the Washington Constitution might 

                                               11 

Nos. 24944-1-III; 29337-8-III
State v. Burton

Nonetheless, when a state has provided a constitutional right to appeal and has 

established appellate courts as an integral part of the criminal justice system, an appeal 

must comport with due process.  State v. Lennon, 94 Wn. App. 573, 577, 967 P.2d 121

(citing United States v. Smith, 94 F.3d 204, 206-07 (6th Cir. 1996), cert. denied, 519 U.S. 

1133 (1997); Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980), cert. denied, 450 U.S. 

931 (1981)), review denied, 138 Wn.2d 1014 (1999).  This court held in Lennon that 

"Washington guarantees the right to appeal criminal prosecutions, and substantial delay 

in the appellate process may constitute a due process violation."  94 Wn. App. at 577.  

       To determine when delay in resolving an appeal denies due process, this court, like 

other courts before ours, adopted a modified version of the balancing test formulated in 

Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) for 

determining when delay in bringing a defendant to trial violates her or his Sixth 

Amendment right.  Lennon, 94 Wn. App. at 578.  In the speedy trial context, four factors 

are considered:  (1) the length of delay, (2) the reason for the delay, (3) the defendant's 

assertion of his right, and (4) prejudice to the defendant.  Barker, 407 U.S. at 530.  "The 

provide broader protection than the federal constitution, pointing to article I, section 10 
(the right to justice "'without unnecessary delay'") and article I, section 22 (rights of the 
accused, including "to have a speedy public trial by an impartial jury . . . and the right to 
appeal in all cases").  But this court did not reach the state constitutional issue in deciding 
that case.  Ms. Burton does not offer a Gunwall or other analysis of the state 
constitutional provisions.  See State v. Gunwall, 106 Wn.2d 54, 62-63, 720 P.2d 808 
(1986).

                                               12 

Nos. 24944-1-III; 29337-8-III
State v. Burton

length of the delay is to some extent a triggering mechanism.  Until there is some delay 

which is presumptively prejudicial, there is no necessity for inquiry into the other 

factors."  Id. Adapting the Barker analysis to the appellate context, this court readily 

concluded that a 10-month delay fell far short of a due process violation.  Lennon, 94 

Wn. App. at 578.

       The three years' delay preparing the transcript in this case requires a more 

searching inquiry.  Given intervening case law from other courts questioning whether the 

Barker speedy trial factors should apply to appellate delay, the State suggests that we 

revisit whether they should be used at all.  Courts questioning application of the Barker

factors point out that in an appellate proceeding, the accused has already been convicted 

and has lost the presumption of innocence; the focus of the inquiry should therefore be 

due process concerns of fairness and prejudice.  Prejudice is shown if the appellant 

demonstrates that she is unable to present an adequate appeal because of the delay or will 

be unable to defend in the event the conviction is reversed and retrial is ordered.  United 

States v. Alston, 412 A.2d 351, 357 (D.C. 1980) ("from a due process perspective, the 

one, indispensable concern during an appeal period is prejudice"); accord Sands v. 

Cunningham, 617 F. Supp. 1551, 1566-67 (D.N.H. 1985); Lopez v. State, 105 Nev. 68, 

769 P.2d 1276, 1288-89 (1989); Chatman v. Mancill, 280 Ga. 253, 626 S.E.2d 102, 107 
(2006) (collecting cases).6  

                                               13 

Nos. 24944-1-III; 29337-8-III
State v. Burton

       It is clear that the due process clause, U.S. Const. amend. XIV, the sole source of 

rights with which we are dealing, always protects defendants against fundamentally 

unfair treatment by the government in criminal proceedings.  Doggett v. United States, 

505 U.S. 647, 666, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) (Thomas, J., dissenting) 

(citing United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977)).  

Lovasco recognized that any demonstration of actual prejudice arising from delay in 

criminal proceedings makes a due process claim concrete and ripe for adjudication, but 

does not make the claim automatically valid.  The due process inquiry must consider the 

reasons for the delay as well as the prejudice to the accused.  431 U.S. at 789-90.  The 

Barker factors are relevant to the due process inquiry (with the exception of certain types 

of Barker prejudice, discussed below) so we will continue to apply them, bearing in mind 

that we are analyzing Ms. Burton's right to due process, not a right to a speedy appeal.

       Applying the first Barker factor, the delay in preparing the trial transcripts was 

approximately three years, a period of time that the State concedes is lengthy enough to 

       6 Two federal courts of appeal have similarly held that postconviction relief from a 
state court judgment under 28 U.S.C. § 2254(d)(1) (1996) is unavailable for appellate 
delay because no "clearly established Federal law, as determined by the Supreme Court
of the United States" recognizes a due process right to a speedy appeal.  See, e.g., Hayes 
v. Ayers, 632 F.3d 500, 523 (9th Cir. 2011) (Barker does not satisfy the standard, because 
it established only the contours of the right to a speedy trial; it neither squarely addresses 
any right to a speedy appeal nor establishes a principle that clearly extends to the 
appellate context); accord Reed v. Quarterman, 504 F.3d 465, 485-88 (5th Cir. 2007), 
rev'd on other grounds, 555 F.3d 364 (5th Cir. 2009).

                                               14 

Nos. 24944-1-III; 29337-8-III
State v. Burton

warrant consideration of the other factors.  Br. of Resp't at 11; see also Smith, 94 F.3d 

at 209 (recognizing that delays of 2 to 10 years have been deemed egregious enough to 

require further inquiry; 3-year delay justified further inquiry).

       Turning to the second factor, the reason for the delay was the court reporter's 

unexplained failure to complete the transcripts in a timely manner.  In determining 

whether delay is a deprivation of due process, the customary inquiry is whether the 

government's action -- including, where relevant, the reason for it -- violates those 

"'fundamental conceptions of justice which lie at the base of our civil and political 

institutions'" and which define "'the community's sense of fair play and decency.'"  

Lovasco, 431 U.S. at 790 (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 

79 L. Ed. 791 (1935); Rochin v. California, 342 U.S. 165, 173, 72 S. Ct. 205, 96 L. Ed. 

183 (1952)).  The answer here is no; the delay was not the result of any improper or 

unfair government design.  Even if we analyze the reason for the delay in Barker's

speedy trial terms -- by assigning relative fault for delay to state actors or to the 

defendant -- the factor does not weigh against the State.  While the Ninth Circuit Court of 

Appeals has treated court reporter delay as attributable to the State, see United States v. 

Mohawk, 20 F.3d 1480, 1485 (9th Cir. 1994), this court held in Lennon that a court 

reporter's "unexplained procrastination . . . was not the fault of the State or this court."

94 Wn. App. at 578.  The United States Supreme Court's later decision in Vermont v. 

                                               15 

Nos. 24944-1-III; 29337-8-III
State v. Burton

Brillon, __ U.S. __, 129 S. Ct. 1283, 173 L. Ed. 2d 231 (2009) lends support to this 

court's conclusion; in that case, a public defender was principally responsible for the 

delay but the Court held that his delay should not be attributed to the State solely because 

he was a paid employee of the State's criminal justice system and was assigned to the 

case by the State. 129 S. Ct. at 1291-92. Only if the public defender's delay resulted

from a systemic breakdown in the public defender system or institutional problems 

should the State bear responsibility for his delay. Id. at 1292-93. A similar analysis 

should apply here.  Ms. Smith was assigned by the superior court at the time of Ms. 

Burton's trial to create a stenographic record.  But upon filing a notice of appeal, Ms. 

Burton was responsible for arranging to have Ms. Smith (by then an ex-county employee) 

prepare the transcript.  There is nothing to suggest that the State interfered with Ms. 

Burton's arrangements for the record or bore responsibility for any institutional problem 

contributing to Ms. Smith's delay.  Indeed, the superior court and the prosecutor's office 

appear to have conscientiously monitored the problem and responded with increasing 

pressure to address the reporter's unusual and surprising nonresponsiveness.  

       The State agrees that the third factor -- Ms. Burton's assertion of her right -- is 

present.  Br. of Resp't at 12.  Ms. Burton was diligent in pursuing her appeal.  

       It is the fourth factor -- prejudice -- that is principally in contention.  The United 

States Supreme Court held in Barker that prejudice in the speedy trial context should be 

                                               16 

Nos. 24944-1-III; 29337-8-III
State v. Burton

assessed in the light of several defense interests that the speedy trial right was designed to 

protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and 

concern of the accused, and (3) to limit the possibility that the defense will be impaired.  

407 U.S. at 532.  Ms. Burton relies on all three types of prejudice. At oral argument, her

lawyer stressed Ms. Burton's anxiety and concern, arguing that the emotional strain on a

convicted defendant is most acute during the period she or he is awaiting the outcome of 

what is hoped will be a successful appeal -- a period extended, in Ms. Burton's case, for 

several unwarranted years. 

       But we cannot agree that the first and second forms of prejudice recognized by 

Barker in the speedy trial context support a remedy for delay where the interest we are 

examining is Ms. Burton's right to due process.  Unlike the speedy trial clause, U.S. 

Const. amend. VI, the due process clause has no necessary tie to timeliness.  Rather, the

United States Supreme Court has described its decisions providing due process guaranties 

to criminal appellants as providing "minimum safeguards necessary to make [the] appeal 

'adequate and effective.'"  Evitts v. Lucey, 469 U.S. 387, 392, 105 S. Ct. 830, 83 L. Ed. 

2d 821 (1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20, 76 S. Ct. 585, 100 L. Ed. 891

(1956), and citing Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811

(1963)).  Evitts also describes Douglas and Griffin as requiring a State that affords a right 

of appeal to make that appeal more than a "'meaningless ritual.'" 469 U.S. at 394 

                                               17 

Nos. 24944-1-III; 29337-8-III
State v. Burton

(quoting Douglas, 372 U.S. at 358). These are protections of procedural effectiveness 

and fairness.  Timeliness may or may not be a factor.  By contrast, the core concern of the 

speedy trial clause has been described as the impairment of the liberty of an individual 

who stands unconvicted of a crime. United States v. Loud Hawk, 474 U.S. 302, 312, 106 

S. Ct. 648, 88 L. Ed. 2d 640 (1986).  

       The United States Supreme Court observed in Ross v. Moffitt, 417 U.S. 600, 610-

11, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) that "there are significant differences 

between the trial and appellate stages of a criminal proceeding," one being that "while no 

one would agree that the State may simply dispense with the trial stage of proceedings 

without a criminal defendant's consent, it is clear that the State need not provide any 

appeal at all."  Bearing in mind this different posture of the unconvicted and convicted 

defendant, the absence of a constitutional guaranty of a speedy appeal, and the fact that 

fairness -- not liberty -- is the core concern of the due process clause, we conclude that in 

adapting the Barker factors to the appellate context to nonsystemic issues of appellate 
delay, only actual prejudice warrants consideration as the fourth factor in the analysis.7

       7 For these same reasons, we decline Ms. Burton's invitation to extend, to the 
appellate context, the holding in Doggett that "presumptive prejudice" can sometimes 
suffice to establish a speedy trial violation.  505 U.S. at 655-56; Br. of Appellant at 21. 
This argument was considered and rejected in Mohawk, 20 F.3d at 1488, and contradicts 
the general requirement that a defendant claiming appellate delay must demonstrate 
actual prejudice, United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.) (finding that "a 
due process violation cannot be established absent a showing of prejudice to the 
appellant"), cert. denied, 498 U.S. 963 (1990).  We also note that Ms. Burton's is not one 

                                               18 

Nos. 24944-1-III; 29337-8-III
State v. Burton

       The only actual prejudice advanced by Ms. Burton is speculative: she argues that 

the delay in obtaining the transcript impaired her ability to respond to the poor quality of 

portions of the transcript that was ultimately produced.  She contends that the 

prosecutor's memory had to have faded by the time he was required to clarify the 

transcript and his recitation of what transpired during the garbled passages cannot be 

regarded as reliable.  

       In essence, we are asked to speculate that the delay caused the record on appeal to 

be materially more favorable to the State than it would have been had the transcript been 

timely produced.  Two responses are in order.  First, our appellate rules provide a 

procedure for settling the trial court record where the court reporter's stenographic notes 

or recordings have been lost or damaged, as appears was the case here.  Those rules allow 

for input by trial counsel for both sides and an ultimate determination of the sufficiency 

of the record by the judge before whom the proceedings were held.  An experienced trial 

judge settled the record and found it to be sufficient, a determination to which Ms. Burton 

has separately assigned error.  It is through that process that any tangible concerns about 

of the more extreme instances of appellate delay.  See, e.g., Muwwakkil v. Hoke, 968 F.2d 
284, 285 (2d Cir.) (13-year delay between conviction and appeal violated due process), 
cert. denied, 506 U.S. 1024 (1992); Mohawk, 20 F.3d at 1485 (10-year delay "is 
'extreme' by any reckoning"); Cody v. Henderson, 936 F.2d 715 (2d Cir. 1991) (9½-year 
delay excessive); Elcock v. Henderson, 947 F.2d 1004 (2d Cir. 1991) (8½-year delay 
excessive).  

                                               19 

Nos. 24944-1-III; 29337-8-III
State v. Burton

the reliability of the record can be addressed.  More to the point for this issue -- due 

process -- actual, not potential, prejudice must be demonstrated to establish a due process 

violation.  See State v. Rohrich, 149 Wn.2d 647, 71 P.3d 638 (2003) (collecting cases 

requiring actual, not speculative, prejudice to demonstrate a violation of due process 

rights).

       While we deny Ms. Burton's appeal on this ground, let us be clear that the delay 

Ms. Burton encountered in obtaining the transcript of her trial was inexcusable.  It has 

made the appellate process frustrating and more difficult for all concerned;

unquestionably for Ms. Burton most of all.  The problems experienced in this appeal have 

heightened the awareness and attention of this court and the superior court to previously 

unforeseen potentials for delay.  Absent actual prejudice, however, the delay does not 

offend due process.

                                               II

       Ms. Burton argues next that the record is insufficient to review her claims of 

prosecutorial misconduct and ineffective assistance because the record of challenged 

events at trial is not reliable.  

       "A criminal defendant is constitutionally entitled to a 'record of sufficient 

completeness' to permit effective appellate review of his or her claims."  State v. Thomas, 

70 Wn. App. 296, 298, 852 P.2d 1130 (1993) (quoting Coppedge v. United States, 369 

                                               20 

Nos. 24944-1-III; 29337-8-III
State v. Burton

U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962)). However, a record of sufficient 

completeness does not necessarily mean a complete verbatim transcript.  Id. at 299.  

Unlike the truly unusual appellate delay in this case, problems with a trial record or 

portions of it are not rare, and alternative methods of reporting trial proceedings are 

constitutionally permissible "'if they place before the appellate court an equivalent report 

of the events at trial from which the appellant's contentions arise.'" State v. Jackson, 87 

Wn.2d 562, 565, 554 P.2d 1347 (1976) (quoting Draper v. Washington, 372 U.S. 487,

495, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963)).  

       A new trial will seldom be required when a report of proceedings is lost.  In most 

cases, a reconstructed record will provide the defendant with a record of sufficient 

completeness for effective review.  State v. Tilton, 149 Wn.2d 775, 785, 72 P.3d 735 

(2003).  The absence of a portion of the record is not reversible error unless the defendant 

can demonstrate prejudice.  See State v. Miller, 40 Wn. App. 483, 488-89, 698 P.2d 1123, 

review denied, 104 Wn.2d 1010 (1985).  Where the nature of the error is one that "trial 

counsel probably would have remembered," such as prosecutorial misconduct during 

closing argument (or a related claim of ineffective counsel for failure to object), even the 

entire loss of the pertinent record may not prevent effective review.  State v. Putman, 65 

Wn. App. 606, 611, 829 P.2d 787 (1992), review denied, 122 Wn.2d 1015 (1993).

       In State v. Classen, the court reviewed several decisions considering whether 

                                               21 

Nos. 24944-1-III; 29337-8-III
State v. Burton

reconstructed records were sufficient for review.  143 Wn. App. 45, 55-57, 176 P.3d 582, 

review denied, 164 Wn.2d 1016 (2008).  From those cases, the court distilled the 

following factors which, among others, apply in determining the sufficiency of the 

record:

       (1) whether all or only part of the trial record is missing or reconstructed;
       (2) the importance of the missing portion to review the issues raised on 
       appeal; (3) the adequacy of the reconstructed record to permit appellate 
       review; and (4) the degree of resultant prejudice from the missing or 
       reconstructed record, if any, to the defendant.

Id. at 57.  The record in Classen was deemed adequate where a verbatim report of 

proceedings omitting three days of trial was reconstructed using news footage and the 

attorneys' notes and memories one week after the testimony.  Id.  It concluded that the 

defendant failed to demonstrate prejudice because he could not identify how the 

reconstructed record diminished his ability to raise, and the court's ability to consider, his 

issues on appeal.  Id. at 58.  

       Ms. Burton argues that her case more closely resembles State v. Larson, 62 Wn.2d 

64, 66, 381 P.2d 120 (1963) and Tilton, 149 Wn.2d at 783, two cases in which our 

Supreme Court concluded that the record was insufficient for review.  We disagree.  In 

Larson, the entire verbatim report of proceedings was lost and the court concluded that 

appellate counsel, who had not acted as trial counsel, had no means by which to assess

the sufficiency of the narrative summary provided by the trial court.  62 Wn.2d at 67.  

                                               22 

Nos. 24944-1-III; 29337-8-III
State v. Burton

Here, a complete, albeit partially garbled, transcript was provided and Ms. Burton's trial 

counsel declared the prosecutor's clarifications to be substantively accurate.  In Tilton, 

36 minutes of the defendant's testimony were not preserved. 149 Wn.2d at 779.  The 

court ordered a new trial because the missing testimony was essential.  Id. at 785.  Here, 

however, no part of the record was lost.  The State's clarifying affidavit supplements the 

transcript; it is not offered as a substitute.  Indeed, this case appears unique in that no part

of the report of proceedings is missing. Instead, the transcript contains a number of 

garbled passages, mostly during closing argument, that require varying degrees of effort 

to decipher.  

       Ms. Burton's prosecutorial misconduct and corresponding ineffective assistance 

claims rely on portions of the transcript that are flawed but sufficiently understandable to 

conduct effective review.  

       We affirm.

       The remainder of this opinion has no precedential value.  Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions.  RCW 

2.06.040.

                                               III

       Ms. Burton next argues that she is entitled to a new trial as a result of prosecutorial 

misconduct.  She argues, first, that the prosecutor improperly elicited testimony from Mr. 

                                               23 

Nos. 24944-1-III; 29337-8-III
State v. Burton

Dahlin as to her prior bad acts after having promised not to when motions in limine were 

heard; she argues second, that the prosecutor's characterization of an "abiding belief"

misled the jury as to the State's burden of proof.

       A defendant claiming prosecutorial misconduct must establish the impropriety of 

the prosecution's comments and their prejudicial effect.  State v. McKenzie, 157 Wn.2d 

44, 52, 134 P.3d 221 (2006).  Comments are prejudicial only where "there is a substantial 

likelihood the misconduct affected the jury's verdict."  State v. Brown, 132 Wn.2d 529, 

561, 940 P.2d 546 (1997).  A reviewing court does not assess the prejudicial effect of a 

prosecutor's improper comments 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." Id. A defendant who 

fails to object to an improper comment waives the error unless the comment is "so 

flagrant and ill-intentioned that it causes an enduring and resulting prejudice" that a 

curative instruction could not have neutralized the prejudice.  Id.  That defense counsel 

did not object to a prosecutor's statement "suggests that it was of little moment in the 

trial." State v. Rogers, 70 Wn. App. 626, 631, 855 P.2d 294 (1993), review denied, 123 

Wn.2d 1004 (1994).

       While Ms. Burton complains that the prosecutor introduced evidence of her prior 

bad acts after explicitly representing that he would not, the record reveals that the State's 

                                               24 

Nos. 24944-1-III; 29337-8-III
State v. Burton

only representation at the hearing on motions in limine dealt with the occasion when Ms. 

Burton slammed her car into Mr. Dahlin's car.  The court conceded that bad acts 

evidence could become relevant if Ms. Burton proceeded with her entrapment defense. 

When a trial court refuses to rule, or makes only a tentative ruling subject to evidence 

developed at trial, the parties are under a duty to raise the issue at the appropriate time 

with proper objections at trial.  State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456 

(1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 

(1988), adhered to on reh'g, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989).  In 

reserving ruling on a motion in limine, a court may require the lawyers to notify opposing 

counsel and/or the court in advance of any intention to examine on such matters, but the 

trial court did not do so here.  The prosecutor did not introduce evidence of the car-

ramming incident until the sidebar had occurred and the trial court allowed it.  We find 

no misconduct here.

       Ms. Burton's second claim of prosecutorial misconduct is that the State misled the 

jury as to its burden of proof during closing argument.  She points to the prosecutor's 

suggestion to the jurors that if they were asked a year from trial at a cocktail party what 

the case was about, and if they would reply "the case was about a woman who hated her 

bos[s] and wanted to . . . kill him and [thought she was hiring a] hit man and paid [$500 

to an undercover cop] and the whole thing was on videotape," then Ms. Burton was guilty 

                                               25 

Nos. 24944-1-III; 29337-8-III
State v. Burton

and they would have an abiding belief in her guilt.8  RP (Dec. 6, 2005) at 127.  Defense 

counsel did not object.  

       A prosecutor has wide latitude in closing argument to draw reasonable inferences 

from the evidence and may freely comment on the credibility of the witnesses based on 

the evidence.  State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 

523 U.S. 1008 (1998).  When it comes to arguing law, however, a prosecutor is confined 

to correctly characterizing the law stated in the court's instructions.  State v. Estill, 80 

Wn.2d 196, 199-200, 492 P.2d 1037 (1972) (statements by the prosecution or defense to 

the jury upon the law must be confined to the law as set forth in the instructions of the 

court); State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213 (1984) (prosecutor's 

misstating the law of the case to the jury is a serious irregularity having the grave 

potential to mislead the jury). A prosecutor restates the court's instruction on the law at 

its peril.  See, e.g., State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996) (it is 

well established as misconduct for prosecutor to argue that to acquit a defendant, the jury 

must find that the State's witnesses are lying or mistaken), review denied, 131 Wn.2d 

1018 (1997); State v. Anderson, 153 Wn. App. 417, 431, 220 P.3d 1273 (2009) 

       8 The State clarified this portion of the transcript as follows:  
       "[The prosecutor] illustrated an abiding conviction as being a conviction that lasts 
over a period of time and noted that if the jur[ors] could see themselves at a later point in 
time describing this as a case where a lady hated her boss and hired a hit man to kill him 
and paid $500 and the whole thing was videotaped then Ms. Burton was guilty."  
CP at 274-75.

                                               26 

Nos. 24944-1-III; 29337-8-III
State v. Burton

(arguments equating proof beyond a reasonable doubt to everyday decision-making were

improper; also improper are "fill in the blank" arguments suggesting that jurors must be 

able to identify a reason not to convict), review denied, 170 Wn.2d 1002 (2010); State v. 

Warren, 165 Wn.2d 17, 24, 195 P.3d 940 (2008) (improper for prosecutor to argue that 

"'[r]easonable doubt does not mean give the defendant the benefit of the doubt'" and 

"'for [the defense] to ask you to infer everything to the benefit of the defendant is not 

reasonable'"), cert. denied, 129 S. Ct. 2007 (2009).

       The cocktail party analogy offered by the prosecutor to explain the burden of proof

is problematic.  It implies that the jury's verdict should be for the party who has offered 

jurors a coherent narrative of events that they can take away from the trial and relate to 

friends and family.  Yet, "[a] jury's job is not to 'solve' a case [or] to 'declare what 

happened on the day in question.' Rather, the jury's duty is to determine whether the 

State has proved its allegations against a defendant beyond a reasonable doubt."  

Anderson, 153 Wn. App. at 429 (citation omitted) (quoting brief).  A prosecutor's 

argument that undermines the presumption of innocence -- "'the bedrock upon which the 

criminal justice stands'" -- is improper.  Warren, 165 Wn.2d at 26 (quoting State v. 

Bennett, 161 Wn.2d 303, 315-16, 165 P.3d 1241 (2007)).

       The State argues that viewed in context, however, the prosecutor's argument 

cannot be described as flagrant or ill-intentioned, because the prosecutor read to the jury 

                                               27 

Nos. 24944-1-III; 29337-8-III
State v. Burton

the court's proper definition of reasonable doubt immediately before elaborating on 

"abiding belief."  We agree that contextual consideration is important here, because in no 

other part of his argument did the prosecutor recharacterize the burden of proof.  Indeed, 

the prosecutor referred to the court's instructions repeatedly during his closing argument, 

describing them as the jury's "operating handbook" or "manual of what you're supposed 

to do."  RP (Dec. 6, 2005) at 125.  We rely as we often do on the court's instruction to 

the jury to "[d]isregard any remark, statement or argument that is not supported by the 

evidence or the law as stated by the court." CP at 59 (Instruction 1). In context, it does 

not appear that the prosecutor intended to mislead the jury as to the State's burden.

       Finally, there is not a substantial likelihood that the prosecutor's cocktail party 

analogy, if misconduct, affected the jury's verdict, let alone created an enduring and 

resulting prejudice that a curative instruction could not have neutralized.  The analogy 

was only touched on briefly in the context of a closing argument in which the prosecutor

emphasized the importance of the court's instructions.  It could have been easily 

neutralized had Ms. Burton's lawyer objected.  Not only did Ms. Burton's lawyer not 

object, he mentioned the prosecutor's description of the meaning of abiding belief in 

presenting his own explanation of the meaning of reasonable doubt.  RP (Dec. 6, 2005) 

at 139.  Ms. Burton's lawyer apparently viewed the explanation of abiding belief, in 

context, as of little consequence, as do we.  Ms. Burton does not persuade us that the 

                                               28 

Nos. 24944-1-III; 29337-8-III
State v. Burton

prosecutor's statements were ill-intentioned or prejudicial.

                                              IV

       Ms. Burton argues in the alternative that her trial counsel was ineffective for not 

objecting to the alleged instances of prosecutorial misconduct already discussed.  

       A claim of ineffective assistance is a mixed question of fact and law, reviewed de 

novo.  State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).  To establish 

ineffective assistance, a defendant must satisfy a two-prong test showing that: (1) the 

performance of counsel was so deficient that it fell below an objective standard of 

reasonableness and (2) the deficient performance prejudiced the defendant.  State v. 

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  A failure to make either 

showing terminates review of the claim.  State v. Brown, 159 Wn. App. 366, 371, 245

P.3d 776, review denied, 171 Wn.2d 1025 (2011).  Appellate review of counsel's 

performance starts from a strong presumption of reasonableness.  State v. Bowerman, 115 

Wn.2d 794, 808, 802 P.2d 116 (1990).

       Trial counsel is not ineffective if an objection to the admissibility of evidence 

would have failed.  State v. Nichols, 161 Wn.2d 1, 14, 162 P.3d 1122 (2007).  Also, if the 

failure to object could have been legitimate trial strategy, it cannot serve as a basis for a 

claim of ineffective assistance.  State v. Kwan Fai Mak, 105 Wn.2d 692, 731, 718 P.2d 

                                               29 

Nos. 24944-1-III; 29337-8-III
State v. Burton

407, cert. denied, 479 U.S. 995 (1986), overruled on other grounds by State v. Hill, 123 

Wn.2d 641, 870 P.2d 313 (1994). 

       We observe at the outset that Ms. Burton's trial lawyer was presented with a 

difficult case to defend.  He was required to contend with two damaging undercover 

videotapes recording what the jury could reasonably find to be clearly criminal conduct
by his client.9  In the first, lasting 30 minutes, Ms. Burton, showing no signs of 

intoxication, retained a hit man, freely responded to a number of nonleading questions as 

to what she wanted done, and asked, without prompting, that Mr. Dahlin's death be

painful and that he be told before dying that he had "fucked with the wrong bitch."  RP

(Dec. 6, 2005) at 66.  In the second videotape, again appearing sober, she reviewed 

photographs of what she believed to be a beaten and murdered man, showed no sign of

revulsion or remorse, expressed her gratitude, and paid an additional $500.  There was 

nothing about her explanation -- that Mr. Ballentine made plans for a murder that he could 

not reverse; approached police even though complicit in a murder for hire; and then 

successfully groomed her to portray an attitude 180 degrees removed from her true 

feelings -- that was inherently plausible. Through Ms. Burton, a psychologist, and third 

party witnesses, Ms. Burton's lawyer presented what appears from the record and from 

       9 Unlike the report of proceedings, which is partially flawed, complete and 
undamaged copies of the videotapes remain available.  

                                               30 

Nos. 24944-1-III; 29337-8-III
State v. Burton

arguments on appeal to have been her best possible defense.  

       Ms. Burton nonetheless argues that her trial lawyer was ineffective for failing to 

timely object when the State elicited Mr. Dahlin's testimony about her prior bad acts in 

its case-in-chief.  ER 404(b) provides that evidence of other wrongs or acts is not 

admissible to prove the character of a person in order to show action in conformity 

therewith.  But it provides that such evidence is admissible for other purposes, including 

motive and intent.  Ms. Burton's defense of entrapment put into issue whether she was 

lured or induced to commit a crime which she had not otherwise intended to commit, or 

whether law enforcement simply afforded her an opportunity to commit a crime.  See 

RCW 9A.16.070.  ER 404(b) evidence is admissible to rebut a defense theory and, if the 

acts are sufficiently similar, can be relevant and probative evidence of a defendant's 

predisposition to perform the charged crime.  United States v. Mendoza-Prado, 314 F.3d 

1099, 1103 (9th Cir. 2002).  

       Ms. Burton nonetheless argues that the 404(b) evidence should not have been 

admitted until she had actually presented evidence of an entrapment defense.  There is 

authority for her position.  See, e.g., United States v. McGuire, 808 F.2d 694, 696 (8th

Cir. 1987) (finding error where the district court allowed government to introduce 

rebuttal evidence in its case-in-chief in anticipation of an entrapment defense proposed in 

defense counsel's opening statement but that was never presented); United States v. 

                                               31 

Nos. 24944-1-III; 29337-8-III
State v. Burton

Hicks, 635 F.3d 1063, 1072 (7th Cir. 2011) ("proper course of action" is for government 

to offer 404(b) evidence after the defense materializes, either during cross-examination or 

during its rebuttal case).  But the issue here is not whether Ms. Burton's trial lawyer 

could have interposed a successful objection, it is whether he might have had sound 

strategic reasons for not doing so.  The entrapment defense was Ms. Burton's only viable 

defense; this was not a case where the defense might or might not have been presented.  

As soon as the defense presented evidence of entrapment, the State would have a valid 

basis for offering evidence of similar hostile acts by Ms. Burton in order to show her 

disposition to solicit Mr. Dahlin's murder.  The trial judge had already indicated that the 

evidence would likely be admissible if Ms. Burton claimed entrapment.  Ms. Burton's

lawyer could reasonably have concluded that the evidence would eventually come in and 

would do less harm if admitted when first offered rather than later, after his initial 

objection underscored for jurors that this was damaging evidence that the defense did not 

want in.

       Similarly, while Ms. Burton's lawyer declined the trial court's offer to give a 

limiting instruction, we presume in such cases that the decision was a reasonable trial 

strategy not to reemphasize damaging evidence and hence not deficient performance 

under the Strickland standards. State v. Price, 126 Wn. App. 617, 648-49, 109 P.3d 27, 

review denied, 155 Wn.2d 1018 (2005).  Defense counsel's decisions can readily be 

                                               32 

Nos. 24944-1-III; 29337-8-III
State v. Burton

regarded as reasonable strategic judgments.

       Ms. Burton's second ineffective assistance claim pertains to her trial lawyer's

failure to object to the prosecutor's closing argument on the meaning of "abiding belief."  

Ms. Burton did not demonstrate that the remarks prejudiced the outcome of her trial in 

arguing prosecutorial misconduct, and the same is true here. Because both deficient 

performance and prejudice must be proved to support a successful claim of ineffective 

assistance of counsel, this failure to show prejudice ends the inquiry.  State v. Fredrick, 

45 Wn. App. 916, 923, 729 P.2d 56 (1986).

                                               V

       Raising the issue for the first time on appeal, Ms. Burton objects to the entrapment 

instruction given to the jury because it failed to state which party had the burden of 

proving or disproving the defense and failed to identify the burden of proof applied. She 

claims that the omission may have led the jury to impose upon her the burden of proving 

the entrapment defense beyond a reasonable doubt rather than by a preponderance of the 

evidence, the correct standard.  The State responds that Ms. Burton invited the error by 

requesting the instruction, that she could have only benefited from its deficiencies, and 

that in any event the error was harmless.

       The invited error doctrine "prohibits a party from setting up an error at trial and 

then complaining of it on appeal." State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 

                                               33 

Nos. 24944-1-III; 29337-8-III
State v. Burton

(1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 

(1995).  The defendant must materially contribute to the error challenged on appeal by 

engaging in some type of affirmative action through which the defendant knowingly and 

voluntarily sets up the error.  In re Pers. Restraint of Call, 144 Wn.2d 315, 326-28, 28 

P.3d 709 (2001).  The doctrine of invited error prohibits a party from challenging a jury 

instruction on appeal that it proposed, even if it meets the standard under RAP 2.5.  State 

v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999); State v. Gentry, 125 Wn.2d 570, 

646, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995).  

       While the State argues invited error, however, it has not demonstrated it, and bears 

the burden of doing so.  State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004).  It 

suggests that Ms. Burton requested the incomplete instruction but does not cite to, nor 
does the record contain, her proposed jury instructions.10 Discussion of the jury 

instructions was largely conducted off the record during trial.  We agree it is possible and 

even likely that Ms. Burton requested the entrapment instruction as given to the jury.  But 

on the record presented, we have no basis for concluding that the error in the instruction

was hers.  

       Unpreserved claims of error involving jury instructions are generally subject to an 

       10 Neither party designated Ms. Burton's proposed instructions.  This court has 
since determined that the superior court has no record of them.

                                               34 

Nos. 24944-1-III; 29337-8-III
State v. Burton

analysis of whether the error is manifest constitutional error.  State v. O'Hara, 167

Wn.2d 91, 100, 217 P.3d 756 (2009); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492

(1988).  Instructional errors that have been held to constitute manifest constitutional error 

include directing a verdict, State v. Peterson, 73 Wn.2d 303, 306, 438 P.2d 183 (1968); 

shifting the burden of proof to the defendant, State v. McCullum, 98 Wn.2d 484, 487-88, 

656 P.2d 1064 (1983); failing to define the "beyond a reasonable doubt" standard, State 

v. McHenry, 88 Wn.2d 211, 214, 558 P.2d 188 (1977); failing to require a unanimous 

verdict, State v. Carothers, 84 Wn.2d 256, 262, 525 P.2d 731 (1974); and omitting an 

element of the crime charged, State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 

(1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 

(1985).  In contrast, instructional errors not amounting to manifest constitutional error

include the failure to instruct on a lesser included offense, Kwan Fai Mak, 105 Wn.2d at

745-49, and the failure to define individual terms, Scott, 110 Wn.2d at 690-91.

       To satisfy the constitutional demands of a fair trial, the jury instructions, when 

read as a whole, must correctly tell the jury of the applicable law, not be misleading, and 

permit the defendant to present her or his theory of the case. State v. Mills, 154 Wn.2d 1, 

7, 109 P.3d 415 (2005).

       We suspect that without explicit instruction about the burden of establishing or 

negating the entrapment defense, the jury most likely assumed that the State bore the 

                                               35 

Nos. 24944-1-III; 29337-8-III
State v. Burton

burden of overcoming any reasonable doubt that it presented.  Yet we cannot rule out Ms. 

Burton's contention that the jurors might have assumed that Ms. Burton was required to 

prove her defense beyond a reasonable doubt, the only standard of proof on which they 

were instructed.  The State is mistaken in its belief that the instructions informed the jury 

that "the defendant has no burden to prove anything." Br. of Resp't at 29. If anything, 

the instruction that "[t]he defense is not established if the law enforcement officials did 

no more than afford the defendant an opportunity to commit a crime" suggested that Ms. 

Burton had the burden of proof.  CP at 68 (Instruction 10).  Accordingly, the error here 

was likely manifest constitutional error.  

       We therefore review for harmless error.  Manifest constitutional error is harmless 

if we "'conclude beyond a reasonable doubt that the jury verdict would have been the 

same absent the error.'" State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) 

(quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 

(1999)).  We are satisfied beyond a reasonable doubt that the omission of the burden of 

proof from the entrapment instruction did not affect the outcome of the case.

                                              VI

       Finally, Ms. Burton argues cumulative error: that the trial court committed several 

trial errors that, while standing alone, might not be sufficient to justify reversal, 

nonetheless denied her a fair trial when viewed collectively.  State v. Coe, 101 Wn.2d 

                                               36 

Nos. 24944-1-III; 29337-8-III
State v. Burton

772, 789, 684 P.2d 668 (1984).  The defendant bears the burden of proving an 

accumulation of errors of sufficient magnitude that retrial is necessary.  Price, 126 Wn. 

App. at 655.

       Here, at most two trial errors occurred:  prosecutorial misconduct during closing 

argument and an incorrect jury instruction pertaining to the defense of entrapment.  Ms. 

Burton does not explain how these errors combined to deny her a fair trial.  We are 

satisfied that the errors were harmless individually and collectively.

       We affirm. 

                                                ____________________________________
                                                Siddoway, J.

WE CONCUR:

___________________________________
Kulik, C.J.

___________________________________
Sweeney, J.  

                                               37