Opinion Information Sheet

			

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )
                      Respondent,           )       No. 84452-6
                                            )
v.                                          )
                                            )       EN BANC
RICHARD CHARLES TRACER,                     )
                                            )
                      Petitioner.           )       Filed February 16, 2012
______________________________ )

       FAIRHURST, J.  --  This case requires us to resolve four issues that arose 

after a special deputy prosecuting attorney failed to attend a pretrial hearing and a 

superior court judge appointed a local defense attorney to take her place.  The State 

appealed the resulting judgment and sentence and the trial court's refusal to vacate 

its appointment. Division Two of the Court of Appeals found the appointment 

improper and vacated the defendant's guilty plea. We now affirm in part and reverse 

in part and remand for further proceedings. 

State v. Tracer, No. 84452-6

                                           FACTS

       On May 25, 2007, Richard Charles Tracer was driving a car while 
intoxicated.  Tracer got into an accident and another person was injured.1               Tracer 

was arrested and charged with vehicular assault.  He spent the next five days in jail.

       Tracer is the son of a Jefferson County sheriff's office employee, and the

sheriff's office has a close working relationship with the prosecuting attorney's 

office.    To avoid the appearance of impropriety, elected Jefferson                    County 

Prosecuting Attorney Juelanne Dalzell appointed Andrea Vingo as special deputy 

prosecuting attorney to handle Tracer's case. 

       During the next 11 months, Tracer was scheduled for nine pretrial hearings. 

The record does not fully document Vingo's attendance at these hearings, but it 
appears to have been sporadic.2  On May 8, 2008, Vingo and Tracer reached some 

sort of agreement to amend Tracer's charge to driving while under the influence 

(DUI), but the finality of the agreement is in dispute.  Vingo  says she had "no 

       1The Court of Appeals incorrectly stated that Tracer's counsel attributed the accident to a 
meteor.  State v. Tracer, 155 Wn. App. 171, 176, 229 P.3d 847 (2010).  Tracer's counsel actually 
said, "I have hired an accident reconstructionist and basically it is as if . . . his car was hit by a 
meteor.  It was an accident but it turns out that it was all the other car's fault." Clerk's Papers 
(CP) at 91 (emphasis added).
       2Tracer reports that Vingo appeared in person twice (June 8, 2007, Apr. 11, 2008), by 
phone twice (Jan. 4, 2008, Jan. 11, 2008), through the local prosecuting attorney's office twice 
(Sept. 14, 2007, Nov. 2, 2007), and through defense counsel once (Mar. 14, 2008).  Tracer also 
reports that Vingo failed to appear on December 28, 2007. Vingo also failed to appear on May 9, 
2008.
                                               2 

State v. Tracer, No. 84452-6

problem with such an amendment in principle, but that there were formalities to be 

observed."  Clerk's Papers (CP) at 134. Tracer's counsel asserts that the agreement 

was "a firm deal." CP at 145.

       Tracer appeared for a pretrial hearing on May 9, 2008, but Vingo again failed 

to appear.3 Ted DeBray, a Jefferson County deputy prosecuting attorney present in 

the court on another matter, asked the court to continue Tracer's hearing for another 

week. In response, Tracer's counsel informed the court that an agreement had been 

reached to amend Tracer's charge to DUI. Counsel also informed the court that time 

was of the essence because Tracer had received a job offer contingent on the 

resolution of his case. 

       Presiding  Judge Craddock Verser           agreed that Tracer's case should be 

resolved.  After DeBray declined to substitute for Vingo because of the appearance 

of impropriety, Judge Verser verbally contemplated appointing Noah Harrison, a 

local defense attorney present in court for an unrelated matter, as special deputy 

prosecuting attorney to represent the State. Harrison responded, "It's a conflict." CP 

at 90. Tracer's counsel attempted to reach Vingo by phone, but there was no 

answer.  Judge Verser appointed Harrison as a special deputy prosecuting attorney.  

The court recessed for Harrison to review Tracer's case file.

       3Although Vingo provided no explanation for her absence at the time, she later alleged she 
was ill.
                                               3 

State v. Tracer, No. 84452-6

       Approximately two-and-one-half hours later, Harrison informed the court that 

changing Tracer's plea to DUI appeared to be appropriate.  Judge Verser accepted 

Harrison's oral motion to amend the charge from vehicular assault to DUI and 

accepted Tracer's guilty plea.  CP at 96.          Judge Verser sentenced Tracer to 365 

days in jail, 360 days suspended, with credit for 5 days of time served.  Tracer was 

also assessed with fines and costs of roughly $3,800.  Harrison did not request, and 

the court did not impose, restitution or crime victim compensation as required by 

law.    

       Upon learning of Tracer's plea agreement, Dalzell filed a motion for 

reconsideration and a motion to vacate the judgment and sentence.  The superior 

court denied the State's motions, and the State timely appealed.  

       Division  Two of the Court of Appeals reversed and remanded on several 

grounds. Among other things, the Court of Appeals held that (1) the State was 

permitted to appeal; (2) the trial court was authorized                to appoint a special 

prosecuting attorney, but Harrison was not qualified to serve in that position

because of a conflict of interest; (3) Harrison did not act as a de facto public official; 

and (4) remand for a trial on Tracer's original assault charge would not violate the 

double jeopardy clause.  State v. Tracer, 155 Wn. App. 171, 176, 229 P.3d 847 

(2010).  We granted Tracer's petition for review.  State v. Tracer, 169 Wn.2d 1010, 

                                               4 

State v. Tracer, No. 84452-6

236 P.3d 205 (2010).  We affirm the Court of Appeals on these issues, and we 

remand for further proceedings in the superior court.             We reverse the Court of 

Appeals' holding that the case must be remanded to a different trial judge. 

                                           ISSUES

A.     Whether RAP 2.2(b)(1) permits the State's appeal of Tracer's judgment and 
       sentence.

B.     Whether RCW 36.27.030 authorizes a trial court to appoint a special deputy 
       prosecuting attorney, and whether Harrison was qualified to serve as a 
       special deputy prosecuting attorney.

C.     Whether the de facto public official doctrine bars the State's challenge to 
       Harrison's acts as special deputy prosecuting attorney.

D.     Whether remand of Tracer's case violates the double jeopardy clause.

                                         ANALYSIS

A.     RAP 2.2(b)(1) permits the State to appeal Tracer's judgment and sentence

       The first issue is a threshold matter as to whether the State may appeal in this 
case. As long as a defendant's double jeopardy rights are not violated,4 the State 

may appeal "[a] decision that in effect abates, discontinues, or determines the case 

other than by a judgment or verdict of not guilty."  RAP 2.2(b)(1).

       Tracer asserts that his judgment and sentence is not appealable because the 

superior court did not discontinue his case but only discontinued prosecution of the 

       4The double jeopardy issue is discussed infra section D. 

                                               5 

State v. Tracer, No. 84452-6

vehicular assault charge.  According to Tracer, because the actual cause number of 

the case continued, the plain text of RAP 2.2(b)(1) precludes the State's appeal.  

       But Tracer's attempt to distinguish between the discontinuation of a case and 

the discontinuation of a charge is unsupported by the plain text of the rule.  RAP 

2.2(b)(1) broadly permits the State to appeal superior court decisions resolving the 

disposition of a case and only bars the State from appealing a "judgment or verdict 

of not guilty."  That is not the situation here.  As the Court of Appeals correctly 

held, "The trial court's actions discontinued prosecution of the vehicular assault 

charge and determined the resolution of that charge by a means other than a 

judgment or verdict of not guilty." Tracer, 155 Wn. App. at 181.  We therefore 

affirm the Court of Appeals on this issue and hold that RAP 2.2(b)(1) does not 

preclude the State's appeal of Tracer's judgment and sentence. 

B.     RCW 36.27.030 authorizes a trial court to appoint a special deputy 
       prosecuting attorney, but Harrison was not qualified to serve as a special 
       deputy prosecuting attorney due to a conflict of interest

       Two separate but related questions arise from the superior court's 

appointment of Harrison as substitute special deputy prosecuting attorney.  The first 

question is whether the superior court was authorized to appoint a special deputy 

prosecuting attorney to serve in Vingo's place, and the second is whether the court's 

appointment of Harrison was proper under the circumstances of this case. We 

                                               6 

State v. Tracer, No. 84452-6

address these questions in turn.

        A prosecuting attorney is a public official appointed or elected to represent 

the State in actions and proceedings before the courts.  See generally RCW 

36.16.030.  A prosecuting attorney has a duty to appear for and represent his or her 

jurisdiction in criminal and civil proceedings in which the jurisdiction is a party.  See

RCW 36.27.020(3).  When a prosecuting attorney is unable to perform his or her 

official duties, a court is empowered to appoint a replacement prosecuting attorney 

under RCW 36.27.030.  

       RCW 36.27.030 states, "When from illness or other cause the prosecuting 

attorney is temporarily unable to perform his or her duties, the court or judge may 

appoint some qualified person to discharge the duties of such officer in court until 

the disability is removed."  RCW 36.27.030 further states, "When any prosecuting 

attorney fails, from sickness or other cause, to attend a session of the superior court 

of his or her county, or is unable to perform his or her duties at such session, the 

court or judge may appoint some qualified person to discharge the duties of such 

session."5

       5The full text of RCW 36.27.030 reads:
       When from illness or other cause the prosecuting attorney is temporarily unable to
       perform his or her duties, the court or judge may appoint some qualified person to 
       discharge the duties of such officer in court until the disability is removed.
              When any prosecuting attorney fails, from sickness or other cause, to 
       attend a session of the superior court of his or her county, or is unable to perform 
       his or her duties at such session, the court or judge may appoint some qualified 
                                               7 

State v. Tracer, No. 84452-6

       Because RCW 36.27.030 uses the term "the prosecuting attorney" in its 

opening paragraph, the State argues that the plain text of RCW 36.27.030 does not 

authorize the superior court to appoint a replacement for a special deputy 

prosecuting attorney, but only for  the elected prosecuting attorney. (Emphasis 

added.) The State notes that several other statutes within chapter 36.27 RCW 

address the duties and functions of "deputy prosecuting attorneys" and "special 
deputy prosecuting attorneys."6      Because RCW 36.27.030 does not use these more 

specific terms, the State concludes that the statute cannot be fairly read to allow 
appointment to replace all prosecuting attorneys.7

       The State's argument fails because it ignores other, dispositive language 

       person to discharge the duties of such session, and the appointee shall receive a 
       compensation to be fixed by the court, to be deducted from the stated salary of the 
       prosecuting attorney, not exceeding, however, one-fourth of the quarterly salary of 
       the prosecuting attorney: PROVIDED, That in counties wherein there is no person 
       qualified for the position of prosecuting attorney, or wherein no qualified person 
       will consent to perform the duties of that office, the judge of the superior court 
       shall appoint some suitable person, a duly admitted and practicing attorney-at-law 
       and resident of the state to perform the duties of prosecuting attorney for such 
       county, and he or she shall receive such reasonable compensation for his or her 
       services as shall be fixed and ordered by the court, to be paid by the county for 
       which the services are performed.
       6See  RCW 36.27.040 (authorizing the appointment of deputy and special deputy 
prosecuting attorneys  by "the prosecuting attorney"); RCW 36.27.060 (prohibiting some 
instances of private practice for "the prosecuting attorney" and for "deputy prosecuting 
attorneys").
       7In a supplemental brief, the State argues that the superior court cannot appoint a 
substitute deputy prosecuting attorney absent a formal hearing with notice and opportunity to be 
heard by the prosecuting attorney's office.  However, the State grounds its argument on citation 
to foreign jurisdictions with statutory schemes for the judicial appointment of prosecuting 
attorneys that are different from RCW 36.27.030; therefore, we reject this argument. 
                                               8 

State v. Tracer, No. 84452-6

within the statute.  RCW 36.27.030 contains two paragraphs.  The first paragraph 

permits the replacement of "the prosecuting attorney" when he or she cannot 

discharge the duties of the office, and the second paragraph permits the replacement 

of "any prosecuting attorney" when such attorney cannot discharge his or her 

official duties.  RCW 36.27.030 (emphasis added).  As pertaining to the conditions 

for appointment, both paragraphs are functionally identical, except that the first 

paragraph specifies a particular prosecuting attorney and the other broadly applies to 

"any" prosecuting attorney.  

       It is a basic rule of statutory construction that the legislature intends different 

terms used within an individual statute to have different meanings.  State v. 

Roggenkamp, 153 Wn.2d 614, 625, 106 P.3d 196 (2005).                       The difference in 

language between the two paragraphs indicates that the legislature provided for 

judicial appointment in two separate situations.  The first paragraph applies when 

the  elected prosecuting attorney is unable to perform his or her duties, and the 

second paragraph applies when any prosecuting attorney is unable to perform his or 

her duties.  While the State urges us to read RCW 36.27.030 in the shadow of other 

statutory sections in chapter 36.27 RCW, we need not do so because the language 

of RCW 36.27.030 plainly authorizes the superior court to appoint a replacement for 

either the elected prosecuting attorney or any subordinate prosecuting attorney.  See 

                                               9 

State v. Tracer, No. 84452-6

State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (when the plain language of 

a statute is unambiguous, the legislative intent is apparent, and we will not construe 

the statute otherwise).  Instead, we affirm the Court of Appeals' holding that RCW 

36.27.030 conferred sufficient authority for the superior court to appoint a special

deputy prosecuting attorney to substitute for an absent deputy prosecuting attorney.  

       Although RCW 36.27.030 permits a superior court to appoint a temporary 

special deputy prosecuting attorney, a second question is whether  the court could 

properly appoint Harrison in this case.  As noted above, RCW 36.27.030 authorizes 

a court or judge to "appoint some qualified person" to discharge the duties of a 

prosecuting attorney.  (Emphasis added.)  While the statute does not define 

"qualified," it seems beyond dispute that a qualified attorney must not be ethically 

prohibited by the Rules of Professional Conduct (RPC) from discharging the 

prosecuting attorney's duties.  Instead, a special deputy prosecuting attorney must 

be able to protect the public interest by fairly performing the functions of the office 

without a conflict of interest.  

       A concurrent conflict exists if "the representation of one client will be directly 

adverse to another client."  RPC 1.7(a)(1). As the RPC committee's comment to this 

rule explains, "absent consent, a lawyer may not act as an advocate in one matter 

against a person the lawyer represents in some other matter, even when the matters 

                                               10 

State v. Tracer, No. 84452-6

are wholly unrelated."  Id. cmt. 6 (emphasis added).  The RPCs prohibit a lawyer 

from representing a client if a concurrent conflict of interest exists unless a strict 

exception is met that requires both clients' informed, written consent.  

       Division One of the Court of Appeals has recognized that a conflict of interest 

exists when an attorney represents a criminal defendant in superior court and 

simultaneously acts as a prosecuting attorney             in the same county.  State v. 

Tjeerdsma, 104 Wn. App. 878, 884-85, 17 P.3d 678 (2001) (conflict of interest was 

created when attorney representing a criminal defendant in Skagit County Superior 

Court was appointed as a special deputy prosecuting attorney for the Skagit County 

Prosecuting Attorney's Office in an unrelated case).  In an advisory ethics opinion, 

the RPC committee opined that a concurrent conflict of interest arises when an 

attorney serves as a misdemeanor defense attorney in municipal court and also 

intermittently acts as a prosecuting attorney pro tempore for the city.  Wash. State 
Bar Ass'n Advisory Op. 1766 (1997),  available at http://mcle.mywsba.org/IO/.8  

The RPC committee found this to be true even though the attorney's representation 

of the defendants and the city related to different matters.  Id.  

       The rationale for this rule lies in the appearance of impropriety created by 

       8Although the language of the conflict of interest rule has changed slightly since the 
opinion was issued, the old RPC was materially the same:  "A lawyer shall not represent a client if 
the representation of that client will be directly adverse to another client."  Former RPC 1.7(a) 
(1995).  
                                               11 

State v. Tracer, No. 84452-6

vesting the "inherently antagonistic and irreconcilable" roles of the prosecution and 

the defense in one attorney.  Howerton v. State, 1982 OK CR 12, 640 P.2d 566, 

567.  In holding that a part-time district attorney may not             represent a criminal 
defendant anywhere in the state of Oklahoma,9 the Court of Criminal Appeals of 

Oklahoma reasoned that although it was difficult or impossible to determine whether 

the representation was actually affected, "[t]he public has a right to absolute 

confidence in the integrity and impartiality of the administration of justice.  The 

conflicts presented in this case, at the very minimum, give the proceeding an 

appearance of being unjust and prejudicial."  Id. at 568 (footnote omitted).

       Applying these principles here, defense attorney Harrison was not qualified to 

serve as a special deputy prosecuting attorney in this case.               Harrison regularly 

represented criminal defendants in actions brought by the State of Washington in 

Jefferson County.  When Harrison was appointed as a special deputy prosecuting 

attorney in Jefferson County, the State of Washington also became Harrison's 

client.  See RCW 36.27.020(3) (the prosecuting attorney shall "[a]ppear for and 

represent the state"); Tjeerdsma, 104 Wn. App. at 884 (because Weyrich was "a 

prosecutor for Skagit County, Weyrich's client was the State of Washington").  The 

interests of the criminal defendants represented by Harrison were therefore directly 

       9We do not here decide whether a criminal defense attorney in one county may ethically 
serve as a special prosecuting attorney in another county.  That issue is not before us.
                                               12 

State v. Tracer, No. 84452-6

adverse to the interests of the State.  No one claims that Harrison received his 

clients' informed, written consent to undertake the representation.  Therefore, even 

assuming Tracer's case was unrelated to Harrison's other criminal cases, a 

concurrent conflict of interest existed under RPC 1.7, and the RPCs  prohibit

Harrison from representing the State.1  

       This conclusion not only comports with the RPCs but also avoids                       the

appearance of impropriety.  While it is usually the defendant's right to a fair trial 

that seems compromised in this type of conflicted representation, the  interests of 

the State and the public appear to have been compromised here.  Tracer's sentence 

did not include a penalty assessment for the crime victim fund, as required by law. 

See RCW 7.68.035(1)(a), (2).  Vingo later claimed that she and Tracer's counsel 

had not yet agreed on the final details of the plea bargain.  These inadequacies and 
disagreements cast a cloud of impropriety over the proceedings.11   We therefore 

affirm the Court of Appeals' holding that the superior court erred in appointing 

Harrison because Harrison was not qualified to serve under RCW 36.27.020(3) due 

       1Because we conclude that Harrison was statutorily disqualified from serving as a special 
deputy prosecuting attorney, we need not reach the issue of whether the appointment violates the 
separation of powers doctrine.
       11Harrison should not be blamed for the appearance of impropriety that arose, and we do 
not mean to cast any doubt on his character or reputation.  Upon the trial judge's initial 
suggestion that Harrison be appointed as a special deputy prosecuting attorney, Harrison 
immediately responded, "It's a conflict."  CP at 90. There is no evidence that Harrison acted with 
bias after the judge persisted in appointing him.  Harrison should not suffer negative consequences 
for his good faith cooperation with the court's explicit instructions.  
                                               13 

State v. Tracer, No. 84452-6

to a conflict of interest. 

                                               14 

State v. Tracer, No. 84452-6

C.     The de facto public official doctrine does not bar the State's challenge to 
       Harrison's acts as special deputy prosecuting attorney

       The next issue is whether the de facto official doctrine applies to save 

Harrison's appointment. Under the doctrine, "a person duly appointed to a public 

office is a de facto officer . . . . As  such[,] his official acts are not subject to 

collateral attack." State v. Carroll, 81 Wn.2d 95, 108, 500 P.2d 115 (1972).  

       According to Tracer, even if Harrison lacked legal authority to represent the 

State, Harrison's acts were valid because he was a de facto official acting under 

apparent authority of law.  In support of this argument, Tracer cites several cases, 

including  State v. Cook, 84 Wn.2d 342, 350, 525 P.2d 761 (1974) (legal intern was 

de facto prosecuting attorney when "acting under color of his appointment by the 

prosecuting attorney"); State v. Corcoran, 7 Idaho 220, 61 P. 1034, 1036 (1900) 

(attorney from neighboring county had de facto authority to prosecute when district 

court appointed him and the responsible prosecutor stated he could not attend to his 

duties); and  State v. Smith, 52 Wn. App. 27, 756 P.2d 1335 (1988) (court 

commissioner who was not technically qualified for the position but was appointed 

by the court had de facto authority to issue search warrant). 

       Tracer's argument fails because in each of these cases, the relevant agency 

did not object to the de facto official's authority. In contrast, the Jefferson County 

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State v. Tracer, No. 84452-6

Prosecuting Attorney's Office, to which Harrison was ostensibly appointed, timely 
and unequivocally objected to Harrison's appointment.12

       Further, because the de facto doctrine is based upon public policy, it only

applies when it serves the public interest -- when it would be                      "'unjust and 

unreasonable to require every individual doing business with an officer to 

investigate and determine at his peril the title of such office.'" Nat'l Bank of Wash.

v. McCrillis, 15 Wn.2d 345, 361, 130 P.2d 901 (1942) (quoting Joseph Jarrett, De 

Facto Public Officers: The           Validity of Their Acts and Their Rights to 

Compensation, 9 S. Cal. Rev. 189, 218 (1936)). These concerns are not present 

here, because Harrison served as a "special deputy prosecutor" for only two-and-

one-half hours. "The temporary character" of Harrison's appointment "and the fact 

that only the parties litigant are concerned with his right to act, in our opinion 

destroy the basis for the normal rules concerning de facto [officers]." Id. at 361-62

(emphasis omitted). Under the circumstances presented here, Harrison cannot be 

said to have acted with apparent authority of the law, and the de facto official 

doctrine does not apply. 

D.     Remand does not violate the double jeopardy clause

       The final issue before us is whether remand of Tracer's case violates the 

       12The "State's Motion Prohibiting Noah Harrison from Representing the State" was filed 
on May 19, 2008, 10 days after the hearing at which Harrison was appointed.  CP  99. 
                                               16 

State v. Tracer, No. 84452-6

double jeopardy clause. Under the Fifth Amendment to the United States 

Constitution, no person shall "be subject for the same offense to be twice put in 

jeopardy of life or limb." The double jeopardy clause bars (1) a second prosecution 

for the same offense after acquittal, (2) a second prosecution for the same offense 

after conviction, and (3) multiple punishments for the same offense. Ohio v. 

Johnson, 467 U.S. 493, 498, 104 S. Ct. 2563, 81 L. Ed. 2d 425 (1984). However, 

the double jeopardy clause does not bar retrial when a court lacks authority to 

accept a defendant's guilty plea. See, e.g., Genesee County Prosecutor v. Genesee 

Circuit Judge, 391 Mich. 115, 215 N.W.2d 145 (1974) (double jeopardy does not 

bar prosecution where the trial judge did not have the authority to accept a guilty 

plea, over the prosecuting attorney's objection, to a lesser included offense).

       Tracer contends that remand for a trial on the original vehicular assault charge 

would violate the  double jeopardy clause. According to Tracer, "Regardless of 

whatever anomalies in the plea bargaining process may have occurred, the 

acceptance of the guilty plea resulted in a conviction, for which jeopardy attached." 

Pet. for Review at 13. Tracer's argument fails, because it presupposes the result of 

the central legal issue in this case: the validity of Tracer's plea.  As noted above, 

Harrison was not authorized to represent the State and had no authority to amend 

Tracer's charge to DUI.       Because the amendment was invalid and the guilty plea 

                                               17 

State v. Tracer, No. 84452-6

was void, the trial court lacked authority to accept Tracer's plea and jeopardy did 

not attach.  We therefore affirm the Court of Appeals on this issue and hold that 

remand of Tracer's case does not violate the double jeopardy clause.

                                       CONCLUSION

       We affirm the Court of Appeals' holdings that the State has a right to appeal

and that a superior court may appoint an attorney to replace any special prosecuting 

attorney but that Harrison was not qualified to serve as a prosecuting attorney due to

a conflict of interest. In addition, we affirm the Court of Appeals' holdings that the 

de facto official doctrine does not save Harrison's appointment and that remand of 

Tracer's case does not violate the double jeopardy clause.

       However, we reverse the Court of Appeals' holding that Tracer's case must 

be remanded to a different trial judge. While the State alleged that Judge Verser 

exhibited "continued animosity toward the State and bias in favor of Tracer," there 

is no evidence in the record to support this allegation.  Br. of Appellant at 37.

Contrary to the State's claim, Judge Verser did not keep "identifying dismissal of 

charges as the alternative response" for Vingo's absence. Id. Instead, Judge Verser 

stated, "Either [Tracer] goes to trial or he pleads to a lesser charge, or it gets 

dismissed,  and I certainly wasn't about to dismiss it."  Verbatim Report of 

Proceedings (June 13, 2008) at 21 (emphasis added).  Judge Verser did not exhibit 

                                               18 

State v. Tracer, No. 84452-6

animosity or bias but simply demonstrated frustration at Vingo's repeated failure to 

appear.  

AUTHOR:
        Justice Mary E. Fairhurst

WE CONCUR:
                                                         Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

        Justice Susan Owens                              Gerry L. Alexander, Justice Pro Tem.

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