State Of Washington v. Damien R. Davis & Marcus A. Reed ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
August 15, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48324-6-II
Respondent,
v. consolidated with
DAMIEN RAPHAEL DAVIS,
Appellant.
STATE OF WASHINGTON, No. 48520-6-II
Respondent,
v.
MARCUS ANTHONY REED, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Damien R. Davis and Marcus A. Reed were tried together and a jury
convicted them of murder in the first degree, two counts of assault in the second degree, and
burglary in the first degree, all with firearm enhancements. The jury also found Reed guilty of
unlawful possession of a firearm. Both Davis and Reed appeal their convictions, and Reed also
appeals his sentence as a persistent offender. They raise numerous other issues. We affirm.
48324-6-II / 48520-6-II
FACTS
I. THE INCIDENT
On March 28, 2013, Davis and Daniel Davis1 helped Reed’s sister move to a new
apartment. Subsequently, Davis received a call from his child’s mother, Kelsey Kelly. Davis,
Daniel, and Reed went to the Morgan Motel. Daniel and Reed went into a nearby store while
Davis went to the motel.
Kelly had been staying with Donald Phily at the Morgan Motel. When Davis visited Kelly,
Phily was also present. Phily and Kelly had electronic devices, including cell phones and
computers, and heroin out in the open. With Davis present, Kelly spoke to Phily about his friend
Keith. After Davis left, Kelly used heroin and fell asleep.
Davis, Daniel, and Reed returned to Davis and Daniel’s apartment. 2 On the way there,
Davis told them that his child was not at the motel, but he saw electronics in the room. That
evening, a man wanting to buy Percocet from Daniel, text messaged him. Daniel, Davis, and Reed
discussed robbing the man.
Reed and Davis went to Reed’s house to get a gun. They returned to the apartment with a
black 9 mm handgun. Daniel took the gun and placed it in Melynda Sue Davis-Orr’s purple
backpack. At some point, the three men left to pick up Reed’s friend, Ariel Abrejera,3 to have her
drive them around. When they realized the man seeking the Percocet from Daniel would not
1
Daniel Davis, a co-defendant, has the same last name as one of the appellants. For clarity we
refer to Daniel by his first name. We intend no disrespect.
2
Daniel and Davis lived with Melynda Sue Davis-Orr, Daniel’s half-sister.
3
Abrejera’s testimony on events differed, but based on the issues raised on appeal, her testimony
is not important. Abrejera pled guilty to murder in the first degree and robbery in the first degree.
The State agreed to drop the murder charge if she testified truthfully.
2
48324-6-II / 48520-6-II
actually buy anything that evening, they returned to the apartment. They discussed robbing Phily
“because there was talk about how there was drugs and money in there, and we could sell the
electronics for money, too.” 6 Report of Proceedings (RP) at 745.
At some point, Reed had switched cars with his wife, and he took his yellow Crown
Victoria from her. Abrejera got into the car and drove. Reed sat in the front passenger seat, Daniel
sat behind the driver’s seat, and Davis sat in the other backseat. Daniel carried the loaded gun.
They brought the gun to intimidate Phily into giving them whatever he had. When they arrived at
the motel, Reed wanted the gun, and Daniel gave it to him. Davis told Daniel and Reed to knock
on the door and use the name Keith, a person Phily knew.
After parking at a nearby store, Abrejera and Davis stayed in the car. The plan was for
Daniel to enter the room first with Reed following while brandishing the gun. For about a minute,
Reed knocked on the door of Phily’s room and claimed he was Keith. The door opened, Daniel
pushed his way in, and Reed followed. Daniel and Phily began to scuffle and “the next thing
[Daniel knew, he] heard a gun go off.” 6 RP at 769.
Earlier in the evening, Phily’s friend, Kathy Devine, went to the motel with Mark
McGlothlen to visit Phily. While they were there, Kelly remained asleep on the bed. After hearing
a loud knocking on the motel door, Phily yelled to the people to leave. Kelly heard someone say
it was Keith. The door opened and two men entered. Devine saw one man with a gun against
McGlothlen’s head, and the other man with a gun struggle with Phily and shoot him.4 The gunshot
killed Phily.
4
Devine testified that there were two guns used in the crime, however, no one else testified about
two guns.
3
48324-6-II / 48520-6-II
After Phily got shot, the shooter held the gun to McGlothlen’s face and said, “Give me
anything you got.” 3 RP at 377. The other man had Devine and Kelly gather electronics. Devine
stated that the gun was pointed at her, but she did not know if he meant to point it at her. She was
shocked and scared. She feared for her safety.
Kelly awoke around midnight to banging on the door of the motel room. Almost
immediately after the door opened, she heard a gunshot. Before that, Kelly turned and ran into the
bathroom because she was scared. One of the men came in and asked for some items, and she
responded that she did not know where they were located. Kelly stated that the man held a gun,
but she could not remember whether he pointed the gun at her. She feared for her safety. After
the man exited the bathroom, Kelly grabbed some of her belongings and ran out to her mother’s
house.
A few seconds after taking cell phones, laptops, and a wicker basket filled with
miscellaneous items, Daniel and Reed returned to the vehicle. Daniel had a gash on his arm. Reed
bragged about shooting Phily and apologized for hitting Daniel’s arm when he fired the shot. Days
later, Abrejera hid the gun.
II. CHARGES
The State charged Davis and Reed as principals, and in the alternative as accomplices, with
murder in the first degree (count I); robbery in the first degree (count II); two counts of assault in
the second degree (counts III, V); burglary in the first degree (count VI); unlawful possession of a
4
48324-6-II / 48520-6-II
firearm in the second degree (count VII).5 All counts included firearm enhancements, with the
exception of count VII.6
III. TRIAL
A. MOTION TO SEVER
In anticipation of the State offering Davis’s post-arrest statement to law enforcement, Reed
moved to sever defendants. Davis confessed to law enforcement that Reed had the idea to rob
someone, that they used Reed’s gun and car in the crime, that Reed and Daniel robbed the
occupants of the motel room, and that Reed shot Phily. Davis also stated that Reed bragged about
shooting Phily and apologized to Daniel for injuring him when he fired the shot.
Reed argued that the State’s redactions were insufficient to eliminate prejudice to him
because the statements still clearly referred to him. Davis did not object to the severance. The
State’s redactions changed references to Reed to, “the other guy,” “this one guy,” and “he.” See
e.g., Clerk’s Papers (CP) (Reed) at 76.
The trial court found that the redacted interview did not include direct reference to Reed,
and the statements did not violate the confrontation clause. The trial court denied Reed’s motion
to sever with the condition that the State redact any reference to the precise number of participants
in the crime. After the State made the ordered redactions, Reed maintained his objection. The
final redactions changed references to Reed to “he” or were omitted.
5
Count IV is not included in the second amended information. RCW 9A.32.030(1)(c) (count I);
RCW 9A.56.190 and 9A.56.200(1)(a)(i) (count II); RCW 9A.36.021(1)(c) (counts III, V); RCW
9A.52.020(1)(a), (b) (count VI); RCW 9.41.040(2)(a) (count VII).
6
RCW 9.94A.530, RCW 9.94A.533.
5
48324-6-II / 48520-6-II
Before the trial court played Davis’s redacted statement to the jury, Reed renewed his
objection. The court gave a limiting instruction that the jury could consider the statement as
evidence against Davis, but not Reed.
B. FINDINGS OF FACT AND CONCLUSIONS OF LAW ENTERED ON CONFESSION HEARING
A different judge than the one trying the case held a hearing on the admissibility of Davis’s
confession and ruled it admissible. The State told the trial judge that the findings of fact and
conclusions of law from the hearing had not been entered. The State noted that the parties did not
dispute the facts. It provided the trial judge with proposed findings and conclusions and a copy of
the transcript from the hearing. The trial court stated, “I did read through the transcript, as well as
the State’s Findings of Fact and Conclusions of Law. When the parties think that they are prepared
to ask the Court for either a signature or some other action, please let me know.” 2 RP at 155-56.
Davis did not object and his lawyer signed the order entered by the trial court.
C. DANIEL’S PRIOR STATEMENT TO LAW ENFORCEMENT
On April 2, 2013, Daniel provided a taped statement to police. When he made the
statement, Daniel was under arrest for a Department of Corrections violation. Daniel gave the
following story to the police.
After Davis told Reed and Daniel about visiting Kelly and Phily, Reed tried to convince
Daniel to rob Phily, but Daniel refused. Eventually, Reed scared Daniel into robbing Phily.
Abrejera and Davis stayed in the car. When Reed and Daniel reached the motel room, Daniel
entered first, and a few seconds later the gun went off. Reed shot Phily. Reed pointed the gun at
Daniel to grab whatever he could, and Daniel feared Reed would shoot him. Daniel grabbed
whatever he could from the room and ran back to the car. When they returned to the apartment,
Reed bragged that he shot Phily.
6
48324-6-II / 48520-6-II
Daniel testified at trial that he participated in planning the crime to rob Phily. He claimed
Davis originated the idea. Daniel admitted that he and Reed were the men who entered the motel
room, but claimed Reed carried the gun and shot Phily. He admitted that they took cell phones
and laptops from the motel room.
On cross-examination, Daniel admitted that the State offered him a plea agreement with a
significantly lesser sentence if he testified truthfully at trial. He admitted that he initially lied to
police when he told them that he participated in the crimes because Reed threatened him and he
believed Reed would kill him if he did not participate. He admitted he lied to the police because
he hoped they would make him a deal.
Both Davis and Reed cross-examined Daniel on whether his plea agreement allowed him
to reduce a potential sentence of 60 to 70 years of confinement. Davis asked, “And what you are
really hoping to do is convince the prosecutor that you are a helpful witness, so that you can get
the deal, right? . . . Aren’t you just saying things that you think are going to help to keep you from
going to prison for a long time?” 7 RP at 992.
The State moved to admit the audio recording of Daniel’s arrest statement as a prior
consistent statement. Davis conceded that the statement in question occurred before the proffer or
the plea agreement. The trial court admitted the statement as a prior consistent statement, because
the defendants challenged the credibility of the witness and the prior statement predated a motive
to lie.
D. DAVIS-ORR TESTIMONY
Davis-Orr initially testified that either Reed, Davis, or Daniel said he wanted to rob
somebody, but she could not recall who made the statement. She did recall that all three of them
were conversing at the time.
7
48324-6-II / 48520-6-II
On cross-examination, Davis-Orr testified that she never told the police that she heard
anyone say they were going to rob somebody. She responded that she actually did not know who
specifically said they wanted to commit a robbery.
On redirect, Davis-Orr again testified she did not recall anyone saying they were going to
rob somebody. The State asked whether Davis-Orr based her conclusion that they were going to
rob someone on her observations. Reed objected on the basis of “speculation.” 9 RP at 1266. The
trial court overruled the objection. The State again asked a similar question. Davis objected,
arguing the question included multiple questions, was vague, and also constituted improper
speculation and opinion. The trial court overruled the objections. On further redirect, Davis-Orr
testified that she told law enforcement, “I kind of already figured that they did a robbery, but I
didn’t know it was a murder.” 9 RP at 1270-71.
After Davis-Orr completed her testimony and outside the presence of the jury, Reed raised
the issue that the testimony constituted improper opinion evidence and improper impeachment.
Davis joined in the objection. The State responded that the evidence was not offered as
impeachment evidence. It was offered to demonstrate that she deduced they committed a robbery
based on her observations.
The trial court stated that
because what the State did was an attempt to rehabilitate a witness who
expressed herself, and also demonstrated consistent poor memory about the
events of that particular night, based on the questions that were asked by
defense counsel, I believe that the statement there was proper in that form
of rehabilitation, given what the cross-examination was.
9 RP at 1275.
8
48324-6-II / 48520-6-II
E. JURY INSTRUCTIONS
The court gave a limiting instruction to the jury on Davis-Orr’s testimony:
Certain evidence has been admitted in this case for only a limited purpose.
This evidence consists of testimony by [Davis-Orr] that she “. . . figured that they
had done a robbery,” and may be considered by you only for the purpose of
evaluating the state of mind of [Davis-Orr]. You may not consider it for any other
purpose. Any discussion of the evidence during your deliberations must be
consistent with this limitation.
CP (Davis) at 271 (Instr. 11). Both Reed and Davis objected to this instruction on the basis that
Davis-Orr’s state of mind was irrelevant. However, Davis acknowledged that he would rather
have the instruction than not.
In addition, the court instructed the jury:
The State must prove an accomplice had general knowledge of the charged
crime. The State is not required to prove the accomplice had knowledge of every
element of the charged crime.
Thus, the State must prove beyond a reasonable doubt an accomplice in a
charged crime of robbery in the first degree had general knowledge of the crime of
“robbery.” The State is not required to prove an accomplice had knowledge that
another participant would be armed with a deadly weapon or would inflict bodily
injury.
The State must prove beyond a reasonable doubt an accomplice in a charged
crime of burglary in the first degree had general knowledge of the crime of
“burglary.” The State is not required to prove an accomplice had knowledge that
another participant would be armed with a deadly weapon or would assault any
person.
The State must prove beyond a reasonable doubt an accomplice in a charged
crime of assault in the second degree had general knowledge of the crime of
“assault.” The State is not required to prove an accomplice had knowledge the
assault would be committed with a deadly weapon.
CP (Davis) at 280 (Instr. 20).7
F. CLOSING ARGUMENTS
7
Davis challenges this jury instruction and quotes it in his brief, but miscited the instruction as
jury instruction 23.
9
48324-6-II / 48520-6-II
While describing the concept of reasonable doubt in closing argument, the prosecutor
began to make an analogy to a puzzle. Both Davis and Reed objected, arguing that the analogy
trivialized and misstated the State’s burden of proof.
Outside the presence of the jury, the trial court heard arguments on the objections. The
trial court acknowledged that the puzzle analogy had come under criticism of reviewing courts,
but overruled the objection.
The jury returned and the prosecutor continued to argue the analogy:
Think about going on a ferry, and for those that have gone on a ferry, oftentimes
there are puzzles on a table left behind. . . . Imagine no box, and so you don’t know
what the image is. You sit down to do a puzzle and you are putting it together and
there are pieces and you just don’t know what to do with them. You have tried it
on every conceivable spot. You can’t figure it out, so you set it aside.
There may have been pieces of the puzzle that, frankly, were gone before
you even sat down to do the puzzle. You may at some point get to the point of
putting together that puzzle and realize what the image is. And you are confident
beyond a reasonable doubt as to what that image is, even though, maybe again,
there were pieces that disappeared before you even sat down, even though there are
pieces that you had to set aside because you don’t know what to do with.
Now, take that concept and think about this trial, because a trial is in many
respects like putting together a puzzle. You are offered a large quantity of evidence,
like pieces of a puzzle, and those pieces of evidence are intended to be put together
in such a fashion that when you view them in total there is an image that convinces
you beyond a reasonable doubt as to the defendant’s guilt. You may have pieces
of evidence, like pieces of a puzzle, you just don’t know what to do with, right? It
may be an entire witness’s testimony that you just can’t make heads nor tails of. It
may be only parts of a witness’s testimony that you just can’t make heads nor tails
of, so that witness or what he or she had to say, you just disregard.
Likewise, there may be pieces of evidence or pieces of a puzzle that you
never receive in the first place, that you can conceive that might exist out there
somewhere in the ether, but you didn’t hear about it. And yet, still the question for
all of you is the evidence that you have received, those pieces of the puzzle, when
you have put all of that evidence together are you convinced beyond a reasonable
doubt as to the image? And the image here is the defendant’s guilt of the charged
crimes. So I offer that to you as one way to think about proof beyond a reasonable
doubt.
13 RP at 1786-87.
10
48324-6-II / 48520-6-II
The State argued that Reed and Davis could both be found guilty as accomplices, but if the
jury found Reed shot the gun, he was also guilty as a principal. The prosecutor also argued:
Now, let’s focus on the central issue in this case. There is really only one,
because when you think about this central issue, you came to realize that if [Davis]
and [Reed] were party to a robbery, they are guilty of the charged offenses here. If
they were party to a robbery, their guilt as to each of these offenses flows naturally.
13 RP at 1787. Reed objected to this statement, but the trial court overruled the objection. The
prosecutor continued,
If I shoot someone in your presence, guess what? You are scared out of
your mind that you might be next. And so, when [Devine] and [Kelly] witnessed
[Phily] shot inexplicably with a gun and he is dying in front of them, are they
victims of an assault at that moment? Absolutely. Absolutely. The men who have
come into that room have put them in fear for their lives. And again, that assault
was perpetrated with a firearm, and it is the very act of coming into that room and
shooting [Phily] in their presence with [Devine] and [Kelly] watching, watching
that gun go off, and if they didn’t see the gun, watching him be shot, and if they
don’t see him watching him be shot, hearing him, watching him stumble to the
ground, clearly having been shot by a gun, the men in the room with a gun, they are
victims of an assault, and that assault has been perpetrated with a gun, with a
firearm.
13 RP at 1813.
In rebuttal, the prosecutor argued:
It’s my opportunity to respond to the arguments of [defense counsel], and to that
end I want you to understand, and I’m sure that you appreciate, the State, both
myself and [co-counsel], have a great deal of respect for [defense counsel] and the
job that they do. Everyone who is charged with a crime is entitled to representation.
And everyone is entitled to vigorous representation and an advocate that will fight
for you, but don’t confuse vigorous advocacy with there being any merit to what
[defense counsel] said to you during their comments.
13 RP at 1878. Reed objected to the statement, but the trial court overruled the objection.
The prosecutor also argued in rebuttal:
The act that [Reed] and Daniel Davis did, the act that they did that makes
them responsible for Second Degree Assaults for [Devine] and [Kelly], the act, it’s
barging into the room. That is an act, barging into a room. They are there. They
are guests. This is a happy place. It’s supposed to be a happy place, and two men,
11
48324-6-II / 48520-6-II
uninvited, forced their way in. That’s an act, and then one of those men has a gun,
and then one of those men shoots [Phily]. . . . What’s the act they did? That’s the
act. The act of invading that space, one of them armed with a gun, one of them
shooting [Phily]. . . .
What is the definition of assault? Any act that puts one in a reasonable
apprehension of harm. Were [Kelly] and [Devine] in those moments assaulted?
Absolutely. Were they put in fear for their safety? Absolutely. And was part of
the fear for their safety, is it because one of the men was armed with a deadly
weapon? Absolutely. That’s what makes them victims of Second Degree assault.
13 RP at 1889-90.
IV. VERDICT AND SENTENCE
The jury found Davis and Reed guilty of murder in the first degree (count I), both counts
of assault (count III, V), and burglary in the first degree (count VI). The jury also found Reed, but
not Davis, guilty of unlawful possession of a firearm (count VII). The jury found Davis and Reed
not guilty of robbery in the first degree (count II). The jury found that Davis and Reed were armed
with a firearm on every count, with the exception of Reed’s unlawful possession of a firearm
conviction.
The trial court sentenced Davis to a total of 642 months of confinement. The trial court
admitted certified copies of the judgment and sentences from Reed’s prior convictions for robbery
in the second degree and robbery in the first degree in 2007, and a conviction for robbery in the
second degree in 2009. Based on these convictions, the trial court determined that Reed was
subject to sentencing as a persistent offender. The trial court sentenced Reed to confinement for
life without the possibility of release as a persistent offender.
Reed and Davis both appeal.
12
48324-6-II / 48520-6-II
ANALYSIS
I. DAMIEN DAVIS
A. KNOWLEDGE JURY INSTRUCTION FOR ACCOMPLICE LIABILITY
Davis argues that he received ineffective assistance of counsel when his lawyer did not
offer an instruction defining knowledge as the word is used in the accomplice liability instruction.8
We disagree.
1. Legal Principles
Jury instructions are appropriate if they allow the parties to argue their theories of the case,
do not mislead the jury, and do not misstate the law. State v. Stevens, 158 Wash. 2d 304, 308, 143
P.3d 817 (2006). We review de novo whether the jury instructions, when read as a whole,
adequately state the applicable law. State v. Levy, 156 Wash. 2d 709, 721, 132 P.3d 1076 (2006).
“[J]ury instructions read as a whole must make the relevant legal standards manifestly apparent to
the average juror.” State v. Marquez, 131 Wash. App. 566, 575, 127 P.3d 786 (2006).
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wash. 2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both (1) that defense counsel’s representation was deficient, and (2) that
the deficient representation prejudiced the defendant. State v. Grier, 171 Wash. 2d 17, 32-33, 246
P.3d 1260 (2011) (applying Strickland, 466 U.S. at 685-86). Representation is deficient if after
8
Davis also assigns error to the trial court’s failure to instruct the jury on the definition of
knowledge in the accomplice liability instruction. This issue is addressed within this section.
13
48324-6-II / 48520-6-II
considering all the circumstances, the performance “‘falls below an objective standard of
reasonableness.’” Grier, 171 Wash. 2d at 33 (quoting Strickland, 466 U.S. at 688). Prejudice exists
if there is a reasonable probability that except for counsel’s errors, the result of the proceeding
would have differed. Grier, 171 Wash. 2d at 34.
An appellant faces a strong presumption that counsel’s representation was effective. Grier,
171 Wash. 2d at 33. Legitimate trial strategy or tactics cannot serve as the basis for a claim of
ineffective assistance of counsel. State v. Kyllo, 166 Wash. 2d 856, 863, 215 P.3d 177 (2009).
“Conversely, a criminal defendant can rebut the presumption of reasonable performance by
demonstrating that ‘there is no conceivable legitimate tactic explaining counsel’s performance.’”
Grier, 171 Wash. 2d at 33 (quoting State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004)).
The defense counsel’s strategic decisions must be reasonable. Grier, 171 Wash. 2d at 34.
2. Davis Did Not Receive Ineffective Assistance
Davis argues that his attorney’s failure to request WPIC 10.029 as an instruction constituted
deficient performance because the word knowledge was used in the accomplice instruction. WPIC
10.02 states:
A person knows or acts knowingly or with knowledge with respect to a
[fact] [circumstance] [or] [result] when he or she is aware of that [fact]
[circumstance] [or] [result]. [It is not necessary that the person know that the [fact]
[circumstance] [or] [result] is defined by law as being unlawful or an element of a
crime.]
If a person has information that would lead a reasonable person in the same
situation to believe that a fact exists, the jury is permitted but not required to find
that he or she acted with knowledge of that fact.
[When acting knowingly [as to a particular fact] is required to establish an
element of a crime, the element is also established if a person acts intentionally [as
to that fact].]
9
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02, at
206 (3d ed. 2008) (WPIC).
14
48324-6-II / 48520-6-II
To constitute ineffective assistance of counsel, we must determine whether (1) the
defendant was entitled to the instruction; (2) failure to offer the instruction was tactical; and (3) if
the defendant was prejudiced by the failure to offer the instruction. State v. Powell, 150 Wash. App.
139, 154-58, 206 P.3d 703 (2009).
Due process requirements are met when a trial court instructs the jury on all elements of
an offense and that unless each element is established beyond a reasonable doubt, the defendant
must be acquitted. State v. Scott, 110 Wash. 2d 682, 690, 757 P.2d 492 (1988). Further, “‘[t]he court
in the trial of a criminal case is required to define technical words and expressions, but not words
and expressions which are of ordinary understanding and self-explanatory.’” Scott, 110 Wash. 2d at
689 (quoting State v. Lyskoski, 47 Wash. 2d 102, 111, 287 P.2d 114 (1955)) (internal quotations
omitted).
The exact argument Davis makes in this case has been rejected. The failure to define
knowledge, is not error. Scott, 110 Wash. 2d at 687. In Scott, an accomplice complained that the
failure to define “knowledge” for the jury, as it was used in the accomplice instruction, constituted
error. 110 Wash. 2d at 691. The court disagreed because “knowledge” is not a technical term that
requires a jury to be instructed on its meaning, even though WPIC 10.51 recommends its use.
Scott, 110 Wash. 2d at 692. Therefore, because the trial court need not have instructed the jury on
the definition of knowledge for accomplice liability, we conclude that Davis’s counsel was not
deficient by failing to request the instruction.
Davis claims he was prejudiced by his attorney’s failure to request a definitional instruction
because “the jury was not told that it could find that he did not act with the knowledge that he was
aiding in a crime despite what a reasonable person would have believed in the same situation.” Br.
of Appellant Davis at 31. He also argues that if his attorney had proposed the instruction, his
15
48324-6-II / 48520-6-II
attorney could have “expanded” his closing argument that Davis did not know the extent of the
crime. Br. of Appellant Davis at 30.
As analyzed above, the failure to request a definitional instruction did not constitute
deficient performance. Even if it did, Davis has not shown prejudice. Davis’s theory was that he
tried to stop the crime from occurring, not that he did not have knowledge of it. He made that
point in closing argument. Therefore, we conclude that the trial court did not err by failing to give
an instruction defining knowledge, and that Davis failed to show he received ineffective assistance
of counsel.
B. CrR 3.5 HEARING FINDINGS OF FACT AND CONCLUSIONS OF LAW
Davis argues that the trial court exceeded its authority by entering findings of fact and
conclusions of law for a CrR 3.5 hearing heard by a predecessor judge. We disagree.10
Under RCW 2.28.030(2), a judicial officer is disqualified from acting as a judge when “he
or she was not present and sitting as a member of the court at the hearing of a matter submitted for
its decision.” The general rule is that “a successor judge is without authority to enter findings of
fact on the basis of testimony heard by a predecessor judge.” State v. Bryant, 65 Wash. App. 547,
549, 829 P.2d 209 (1992). “The rule is applied even where the prior judge had entered an oral
decision . . . or a memorandum decision.” Bryant, 65 Wash. App. at 549. “‘Taken together, the case
law and [court] rules set forth the rule that a successor judge only has the authority to do acts which
do not require finding facts. Only the judge who has heard evidence has the authority to find
facts.’” In re Marriage of Crosetto, 101 Wash. App. 89, 96, 1 P.3d 1180 (2000) (quoting Bryant, 65
Wash. App. at 550).
10
The State argues the issues is waived because of the invited error doctrine. State v. Case, 187
Wash. 2d 85, 384 P.3d 1140 (2016). We disagree and consider the issue on the merits.
16
48324-6-II / 48520-6-II
Nevertheless, the parties may agree to allow a successor judge to make findings of fact
based on the evidence in the record. Crosetto, 101 Wash. App. at 96. Crosetto held that “there is
no necessity for a new trial where, as here, the parties agree to allow the successor judge to rely
on the record. Therefore, we hold that the successor judge did not abuse his discretion in making
findings of fact based upon the original record.” 101 Wash. App. at 98.
Here, it is clear that the successor judge made findings after reading the transcript from the
hearing and made findings. There were no disputed facts adduced at the hearing. Therefore, there
was no error by the successor judge in entering the findings of fact and conclusions of law.
II. MARCUS REED
A. SEVERANCE MOTION AND CONFRONTATION CLAUSE
Reed argues that the trial court erred by denying his severance of defendants motion
because the redaction of Davis’s statements did not protect Reed’s right to confrontation. Reed
also argues that the violation of his right to confrontation was not harmless.11
We conclude that the trial court erred by denying the motion to sever because some of the
redactions to Davis’s statement were insufficient and violated Reed’s right to confrontation.
However, the error was harmless beyond a reasonable doubt. Thus, the trial court’s denial of
Reed’s motion to sever is not reversible error.
11
In his Statement of Additional Grounds (SAG), Reed makes the same arguments on this issue
as did his appellate counsel.
17
48324-6-II / 48520-6-II
1. Standard of Review and Legal Principles
a. Severance Generally
“Separate trials are not favored in this state.” State v. Dent, 123 Wash. 2d 467, 484, 869 P.2d
392 (1994); State v. Campbell, 78 Wash. App. 813, 819, 901 P.2d 1050 (1995). Severance of
defendants is discretionary with the trial court. Dent, 123 Wash. 2d at 484-85. We review a trial
court’s decision on a motion for severance under CrR 4.4(c) for a manifest abuse of discretion.
State v. Rodriguez, 163 Wash. App. 215, 228, 259 P.3d 1145 (2011); State v. Wood, 94 Wash. App.
636, 641, 972 P.2d 552 (1999). A trial court abuses its discretion when its decision is manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons. State v. Barry, 184
Wash. App. 790, 802, 339 P.3d 200 (2014).
The defendant “must be able to point to specific prejudice” to support a claim that the trial
court abused its discretion. Wood, 94 Wash. App. at 641. “‘Defendants seeking severance have the
burden of demonstrating that a joined trial would be so manifestly prejudicial as to outweigh the
concern for judicial economy.’” State v. Moses, 193 Wash. App. 341, 359, 372 P.3d 147, review
denied, 186 Wash. 2d 1007 (2016) (quoting State v. Bythrow, 114 Wash. 2d 713, 718, 790 P.2d154
(1990)).
We review alleged violations of the confrontation clause de novo. Moses, 193 Wash. App.
at 356. The Sixth Amendment to the United States Constitution states: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.”
b. Bruton Issues
Under the confrontation clause, out-of-court testimonial statements by non-testifying
witnesses are barred because of their prejudicial impact unless the declarant is unavailable and the
18
48324-6-II / 48520-6-II
defendant had a prior opportunity to cross-examine the witnesses. Crawford v. Washington, 541
U.S. 36, 54-55, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Bruton v. United States, 391 U.S. 123,
126, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) held that a criminal defendant is denied his right of
confrontation when a nontestifying codefendant’s confession that names the defendant as a
participant in the crime is admitted at a joint trial, even where the court instructs the jury to consider
the confession only against the codefendant.
CrR 4.4(c) insures compliance with Bruton. It provides,
(1) A defendant’s motion for severance on the ground that an out-of-court
statement of a codefendant referring to him is inadmissible against him shall be
granted unless:
....
(ii) deletion of all references to the moving defendant will eliminate any
prejudice to him from the admission of the statement.
“‘[T]he United States Supreme Court held [in Bruton] that the defendant was deprived of
his confrontation rights under the Sixth Amendment when he was incriminated by a pretrial
statement of a codefendant who did not take the stand at trial.” State v. Hoffman, 116 Wash. 2d 51,
75, 804 P.2d 577 (1991). “But in Richardson v. Marsh, 481 U.S. 200, 208, 107 S. Ct. 1702, 95 L.
Ed. 2d 176 (1987), the United States Supreme Court held that a confession redacted to omit all
reference to the codefendant fell outside Bruton’s prohibition because the statement was ‘not
incriminating on its face’ and became incriminating ‘only when linked with evidence introduced
later at trial (the defendant’s own testimony).’” Moses, 193 Wash. App. at 356-57.
“Bruton applies to inculpatory statements.” Moses, 193 Wash. App. at 357. The Bruton
Court recognized the “powerfully incriminating” effect of the extrajudicial statements of a
codefendant “who stands accused side-by-side with the defendant.” 391 U.S. at 135-36. “Not
only are the statements ‘devastating to the defendant, but their credibility is inevitably suspect.’”
19
48324-6-II / 48520-6-II
Moses, 193 Wash. App. at 357 (quoting Bruton, 391 U.S. at 135-36). However, “[s]tatements that
do not incriminate a codefendant are not subject to the Bruton rule.” Moses, 193 Wash. App. at 357.
“[A] non-testifying codefendant’s statement violates the confrontation clause unless
certain criteria are met when redacting the statement.” Moses, 193 Wash. App. at 357. “Redacted
statements must be (1) facially neutral, i.e., not identify the non-testifying defendant by name
(Bruton[, 391 U.S. 123] ); (2) free of obvious deletions such as ‘blanks’ or ‘X’ (Gray [v. Maryland,
523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)] ); and (3) accompanied by a limiting
instruction (Richardson[, 481 U.S. 200]).” Moses, 193 Wash. App. at 357 (internal quotation marks
omitted).
We rejected the use of an “other guy” redaction where only two accomplices committed
the crime and only two defendants were on trial. State v. Vincent, 131 Wash. App. 147, 154, 120
P.3d 120 (2005). Yet State v. Medina approved the admission of the codefendant’s statement
because the redactions were so varied among six possible accomplices (“‘other guys,’ ‘the guy,’
‘a guy,’ ‘one guy,’ and ‘they’”) that the redactions did not clearly imply whether the codefendant’s
statement referred to either the appellant or the other codefendant. 112 Wash. App. 40, 51, 48 P.3d
1005 (2002).
In State v. Fisher, 185 Wash. 2d 836, 845, 374 P.3d 1185 (2016), the court held that:
the exact form of the redaction is not dispositive. Rather, under [Richardson] and
Gray, the question is whether the redaction obviously refers to the defendant. We
decline to adopt the bright line rule of some circuit courts that a neutral pronoun
always satisfies Bruton and instead hold that whatever the form of the redaction, it
must be clear that the redaction does not obviously refer to the defendant.
2. Redactions
Based on the preceding, we review the State’s redactions to Davis’s statement. Throughout
the redacted version of Davis’s statement, Reed’s name was replaced with “he” or omitted.
20
48324-6-II / 48520-6-II
Reed challenges some specific statements. He challenges Davis’s statements regarding
Reed looking for someone to rob, Reed’s seating position in the vehicle, Reed’s apologies after
the crime for shooting Phily, that they helped Reed’s sister move, and that Reed switched cars with
his wife.
Reed also challenges the redactions in general terms based on the use of “he” throughout
the statement. We need not consider the other instances from the interview because he did not
properly raise them. Moses, 193 Wash. App. at 357; RAP 10.3(a)(6). It is Reed’s obligation to point
to the specific parts of the record he claims constitutes error. RAP 10.3(a)(6). “‘Without adequate,
cogent argument and briefing, [this court will] not consider an issue on appeal.’” Moses, 193 Wn.
App. at 357 n.10 (quoting Schmidt v. Cornerstone Invs., Inc., 115 Wash. 2d 148, 160, 795 P.2d 1143
(1990)).
Here, we conclude that a number of the redactions were inadequate because the statements
referred to a woman and Daniel, accomplices to the crimes. Because the crimes involved four
defendants, and because Davis made the statement, it was clear that “he” must have referred to
Reed as the final and fourth accomplice. Thus, these statements violated the confrontation clause.
Vincent, 131 Wash. App. at 154. Yet the error here was harmless because overwhelming
independent evidence demonstrated Reed’s involvement in the crimes. See Vincent, 131 Wash. App.
at 154-55.
The statements challenged by Reed on appeal that violated Bruton include: When Davis
stated, “[w]e pulled up, he went inside, grabbed the gun, came back . . . to the car.” Ex. 70A, at 9.
After they retrieved the gun, Davis explained:
That’s when we got to um, go to Melynda’s so he can give Danny the gun
to put up, to stash while we’re helping his sister move. He didn’t want to travel
with the gun, you know, up and down the street. So he gave Danny the gun, cause
21
48324-6-II / 48520-6-II
Danny didn’t want to help move, so he’s like well just hold this, stay here, you
know, hold it til I come back home, you know, don’t leave.
Ex. 70A, at 9.
Another statement includes when Davis stated exactly where the occupants of the vehicle
sat on the way to the motel:
[Detective]: When does, when she gets in the car, does she get in the driver’s seat?
Davis: Yeah. He wanted her to drive.
[Detective]: Okay. And he’s sitting in the front passenger?
Davis: Um-hum.
[Detective]: You’re behind the driver?
Davis: No, passenger.
[Detective]: You’re behind the passenger and Danny’s behind the driver?
Davis: Yes.
Ex. 70A, at 18.
The third statement that violated Bruton was when Davis described being around other
people at their apartment after the shooting:
Well I wanted, I wanted to tell him to shut up, but Danny . . . kinda like, like
telling him to shut up, don’t be talking about this around these people because, you
know, everybody doesn’t need to know, you know. But he still was, I, I didn’t
mean to shoot him, but he, he rushed me man. I, I mean I told you, I’m not scared.
Ex. 70A, at 27.
The final statement that violated Bruton was when Davis stated: “Cause the gun was at
Melynda’s, like, you know, he gives it to Danny so he’s not driving with the gun, so he don’t, he’s
not scared to drive around, but he’s you know, probably scared to drive around with a, with a gun.”
Ex. 70A, at 32.
However, there are a number of other statements challenged by Reed which do not violate
Bruton because they are either non-incriminatory, facially neutral, or they do not clearly identify
Reed without the help of other evidence. Moses, 193 Wash. App. at 357. These statements include
when Davis described Reed’s plan to rob the man calling to purchase Percocet, Davis’s description
22
48324-6-II / 48520-6-II
of helping Reed’s sister move, and when Davis told law enforcement that they used the yellow
car, not a white SUV they rode in earlier.
Therefore, because many of the challenged portions of Davis’s statement included obvious
references to Reed as the final accomplice, the redactions violated Reed’s right to confrontation.
Although the trial court provided the necessary limiting instruction, the use of Davis’s redacted
statement violated Reed’s confrontation rights under Bruton and its progeny. Accordingly, the
trial court erred by admitting Davis’s redacted statements.
3. Harmless Error
Confrontation clause violations are subject to a constitutional harmless error analysis.
Fisher, 185 Wash. 2d at 847. A constitutional error is harmless if we are persuaded beyond a
reasonable doubt that the jury would have reached the same result in absence of the error. State v.
Watt, 160 Wash. 2d 626, 635, 160 P.3d 640 (2007). “The test is whether the untainted evidence was
so overwhelming that it necessarily leads to a finding of guilt.” Fisher, 185 Wash. 2d at 847.
Here, untainted, overwhelming evidence existed against Reed. That evidence includes the
following. Daniel and Abrejera each testified to Reed’s involvement in the crimes, including
looking to rob someone that evening. Daniel testified that Reed retrieved the gun used from his
house. The gun used in the crime was registered to Reed’s former father-in-law. The car used in
the crime was Reed’s car. When they arrived at the motel, Reed wanted the gun, and Daniel gave
it to him. Daniel identified Reed as the shooter. Therefore, we conclude that the confrontation
clause violation was harmless beyond a reasonable doubt and the trial court’s denial of Reed’s
motion to sever does not warrant reversal.
23
48324-6-II / 48520-6-II
B. DAVIS-ORR’S TESTIMONY
Reed argues that the trial court erred by admitting Davis-Orr’s testimony because she
provided an opinion on his guilt. The State argues the issue is not preserved for review.
We need not decide if the trial court erred by admitting the testimony because even if it
did, any error was harmless.
This issue has been preserved for appeal. Under RAP 2.5(a), a defendant generally may
not raise an error for the first time on appeal unless it is a manifest constitutional error. State v.
Kirkman, 159 Wash. 2d 918, 926, 155 P.3d 125 (2007). A trial court commits constitutional error by
allowing improper opinion testimony, but such an error is not manifest from the appellate record
if the jury was properly instructed that it alone must determine the facts and credibility of
witnesses. State v. Montgomery, 163 Wash. 2d 577, 595, 183 P.3d 267 (2008). The jury was
instructed in such a way.
An appellant must make his own objection and cannot rely on a codefendant’s objection to
preserve the error for appeal. State v. Davis, 141 Wash. 2d 798, 850, 10 P.3d 977 (2000). Initially,
Reed’s counsel objected to Davis-Orr’s testimony on the basis of speculation during redirect
examination. Davis objected on the basis of improper opinion. Davis and Reed challenged Davis-
Orr’s statement that the men planned to rob someone. On further redirect, Davis-Orr testified that
she “kind of already figured that they did a robbery.” 9 RP at 1271. The trial court provided a
limiting instruction regarding this testimony. Immediately after the testimony, the jury was
excused for recess, and the parties had a colloquy with the trial court. During that colloquy, Reed
objected to Davis-Orr’s testimony on the basis of improper opinion. “Where, however, the
litigants have advanced the issue below, giving the trial court an opportunity to rule on relevant
authority, and the court does so rule, it may not be necessary to object at the time of admission of
24
48324-6-II / 48520-6-II
the claimed erroneous evidence in order to preserve the issue for appeal.” State v. Sullivan, 69
Wash. App. 167, 170, 847 P.2d 953 (1993). Therefore, we conclude that Reed preserved the issue
for appeal.
“Trial courts are afforded broad discretion in deciding whether to admit evidence, including
testimony.” State v. Olmedo, 112 Wash. App. 525, 530, 49 P.3d 960 (2002). We review a trial
court’s decision to admit or deny evidence for an abuse of discretion. Olmedo, 112 Wash. App. at
530. A trial court abuses its discretion only if no reasonable person would adopt the view espoused
by the trial court. Olmedo, 112 Wash. App. at 530.
Even if the trial court abused its discretion by admitting Davis-Orr’s testimony, we
conclude that any error was harmless. “Permitting a witness to testify as to the defendant’s guilt
raises a constitutional issue because it invades the province of the jury and the defendant’s
constitutional right to a trial by jury.” Olmedo, 112 Wash. App. at 533. An error of constitutional
magnitude is presumed prejudicial, and the State bears the burden of proving the error was
harmless beyond a reasonable doubt. State v. Spotted Elk, 109 Wash. App. 253, 261, 34 P.3d 906
(2001). “A constitutional error is harmless only when the untainted evidence provides an
overwhelming conclusion of guilt.” Olmedo, 112 Wash. App. at 533.
If the court erred, it was harmless. First, the jury did not convict Davis or Reed for the
robbery charge. In addition, the trial court provided a limiting instruction on Davis-Orr’s
testimony instructing that her testimony that she “. . . figured that they had done a robbery,” could
only be considered for the purpose of evaluating her state of mind. CP (Davis) at 271 (Instr. 11).
As outlined in the facts above, the untainted evidence was overwhelming that Reed, Davis, and
Daniel planned and carried out assaults while armed with a loaded gun. They did so in an effort
to intimidate Phily into giving them whatever property he possessed. Daniel and Reed took items
25
48324-6-II / 48520-6-II
from Phily and shot him when they entered the motel room. Therefore, since we presume the jury
follows its instructions, our review of the entire record and the other overwhelmingly untainted
evidence shows that if an error occurred, it was harmless beyond a reasonable doubt. State v.
Anderson, 153 Wash. App. 417, 428, 220 P.3d 1273 (2009).
C. IMPOSITION OF PERSISTENT OFFENDER SENTENCE
Reed argues that the trial court erred by imposing a persistent offender sentence without a
jury finding on his prior offenses because it deprived him of his right to a jury trial and due process.
We disagree.
Reed bases his argument on recent United States Supreme Court decisions. However, he
also acknowledges that the “Washington Supreme Court has rejected the argument Reed makes
here.” Br. of Appellant Reed at 32. He is correct that our Supreme Court rejected his argument,
and thus, his claim fails.
1. Standard of Review
A persistent offender is a person who has been convicted in Washington of a most serious
offense, and has on at least two other prior occasions been convicted of a most serious offense in
this or any other state. RCW 9.94A.030(38)(a). The Persistent Offender Accountability Act
(POAA) states that a persistent offender shall be sentenced to life imprisonment without the
possibility of release. RCW 9.94A.570. We review alleged constitutional violations de novo.
State v. Siers, 174 Wash. 2d 269, 273-74, 274 P.3d 358 (2012).
2. The Trial Court Did Not Err
The Sentencing Reform Act of 1981 (SRA) requires the trial court to conduct a sentencing
hearing. RCW 9.94A.500(1). “The trial court must decide by a preponderance of the evidence
whether a defendant has a criminal history and specify the convictions it has found to exist.” State
26
48324-6-II / 48520-6-II
v. Knippling, 141 Wash. App. 50, 55, 168 P.3d 426 (2007), aff’d, 166 Wash. 2d 93, 206 P.3d 332
(2009). “‘Sentencing under the persistent offender section of the SRA raises two questions of fact,
whether certain kinds of prior convictions exist and whether the defendant was the subject of those
convictions.’” Knippling, 141 Wash. App. at 55-56 (quoting State v. Lopez, 107 Wash. App. 270, 278,
27 P.3d 237 (2001) (internal quotations omitted).
A defendant has a constitutional right to a trial by jury. U.S. CONST. amend VI; WASH.
CONST. art. I, § 21. However, sentencing under the POAA does not violate a defendant’s right to
a jury trial or due process. State v. Witherspoon, 180 Wash. 2d 875, 893-94, 329 P.3d 888 (2014).
Specifically, Reed relies on the U.S. Supreme Court decisions that state any fact that
increases the penalty for a crime must be submitted to a jury. Alleyne v. United States, ___ U.S.
___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000); Almendarez–Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219, 140 L. Ed. 2d 350 (1998).
Our Supreme Court recently considered the cases relied on by Reed and rejected this issue.
Witherspoon, 180 Wash. 2d at 894. In State v. Langstead, 155 Wash. App. 448, 453, 228 P.3d 799
(2010), we stated that “[b]ecause of the exception for ‘the fact of a prior conviction,’ there is no
violation of the Sixth Amendment or the due process clause of the Fourteenth Amendment when
a judge determines by a preponderance of the evidence that a defendant has two prior ‘strikes’ for
purposes of the Persistent Offender Accountability Act.” Therefore, we conclude that the trial
court did not err by finding by a preponderance of the evidence that Reed had at least two prior
most serious offenses that counted as strikes under the POAA.
27
48324-6-II / 48520-6-II
D. EQUAL PROTECTION—PERSISTENT OFFENDER SENTENCE
Reed argues that the trial court erred by classifying the persistent offender finding as an
aggravator or sentencing factor instead of an element because it violated his right to equal
protection. We disagree.
Under both the state and federal constitutions, persons similarly situated with respect to the
legitimate purpose of the law must receive like treatment. U.S. CONST. amend. XIV; WASH.
CONST. art. I, § 12. We review the legislative classification for a rational basis when the
classification does not involve a suspect class or threaten a fundamental right. State v. Manussier,
129 Wash. 2d 652, 673, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201 (1997).
We have rejected similar arguments. In Langstead, we held that there existed a rational
basis to distinguish between prior convictions that are used to prove an element of a crime and
prior convictions that are used to prove an aggravating factor for sentencing. 155 Wash. App. at
455-57. Therefore, we conclude that because a rational basis exists for the classification, the trial
court did not violate Reed’s equal protection rights, and his claim fails.
III. COMMON ISSUES
A. SUFFICIENCY OF THE EVIDENCE
Davis and Reed argue that insufficient evidence supports their convictions for both counts
of assault because no evidence existed that the intruders intended to make Kelly or Devine
apprehensive or fearful of bodily injury or that they were in fear. We conclude sufficient evidence
exists to support both Davis’s and Reed’s convictions for both counts of assault. The same analysis
applies to both defendants.12
12
Although we may only discuss specific evidence in our analysis, we rely on the entire record in
resolving this issue.
28
48324-6-II / 48520-6-II
1. Legal Principles
To determine whether sufficient evidence supports a conviction, we view the evidence in
the light most favorable to the State and determine whether any rational fact finder could have
found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wash. 2d 572, 576,
210 P.3d 1007 (2009). “‘Substantial evidence’ is evidence sufficient to persuade a fair-minded
person of the truth of the asserted premise.” State v. Homan, 181 Wash. 2d 102, 106, 330 P.3d 182
(2014).
“In claiming insufficient evidence, the defendant necessarily admits the truth of the State’s
evidence and all reasonable inferences that can be drawn from it.” State v. Drum, 168 Wash. 2d 23,
35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the State and interpreted
most strongly against the defendant.’” Homan, 181 Wash. 2d at 106 (quoting State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992)). In addition, we “must defer to the trier of fact for purposes
of resolving conflicting testimony and evaluating the persuasiveness of the evidence.” Homan, 181
Wash. 2d at 106.
Although the State argued that the jury could find Reed shot the gun, it also argued that the
evidence showed both Davis and Reed acted as accomplices to the crime. To convict Davis and
Reed of assault in the second degree, the State had to prove that each acted as a principal, or as an
accomplice, and assaulted another with a deadly weapon. RCW 9A.36.021(1)(c).
To prove the assault under accomplice liability, the State had to prove that Davis and Reed
“‘must have known generally that he was facilitating an assault, even if only a simple,
misdemeanor level assault, and need not have known that the principal was going to use deadly
29
48324-6-II / 48520-6-II
force or that the principal was armed.’”13 State v. McChristian, 158 Wash. App. 392, 401, 241 P.3d
468 (2010) (quoting In re Pers. Restraint of Sarausad, 109 Wash. App. 824, 836, 39 P.3d 308
(2001)). “In Washington, an accomplice need not be aware of the exact elements of the crime. As
long as the defendant engaged in conduct that is ‘the crime,’ the defendant may be found guilty.”
State v. Berube, 150 Wash. 2d 498, 508-09, 79 P.3d 1144 (2003) (internal citation omitted).
Washington recognizes three common law definitions of “assault”: “(1) an attempt, with
unlawful force, to inflict bodily injury upon another (attempted battery); (2) an unlawful touching
with criminal intent (battery); and (3) putting another in apprehension of harm whether or not the
actor intends to inflict or is capable of inflicting that harm (common law assault).” State v.
Winings, 126 Wash. App. 75, 89, 107 P.3d 141 (2005). This case concerns the third definition.
“Assault by attempt to cause fear and apprehension of injury requires specific intent to
create reasonable fear and apprehension of bodily injury.” State v. Eastmond, 129 Wash. 2d 497,
500, 919 P.2d 577 (1996) overruled on other grounds by State v. Brown, 147 Wash. 2d 330, 58 P.3d
889 (2002). “A jury may infer specific intent to create fear from the defendant’s pointing a gun at
the victim, unless the victim knew the weapon was unloaded, but not from mere display.”
Eastmond, 129 Wash. 2d at 500. Intent “‘can be inferred as a logical probability from all the facts
and circumstances.’” State v. Yarbrough, 151 Wash. App. 66, 87, 210 P.3d 1029 (2009) (quoting
State v. Wilson, 125 Wash. 2d 212, 217, 883 P.2d 320 (1994)).
13
Neither Davis nor Reed challenges the sufficiency of the evidence supporting the firearm
sentencing enhancement. For this sentence enhancement to apply to an unarmed accomplice, the
accomplice must have had knowledge that his codefendant was armed. State v. Hayes, 182 Wash. 2d
556, 564, 342 P.3d 1144 (2015).
30
48324-6-II / 48520-6-II
2. Assault on Devine (Count III)
The record shows that Davis told Reed about the electronics in the motel room. Davis,
Reed, and Daniel discussed and planned the crime. Reed and Davis retrieved the gun used in the
crime from Reed’s house. In addition, Daniel’s testimony at trial proved that Davis knew of the
gun because Daniel held the gun as he sat next to Davis in the car on the way to the motel and he
handed the gun to Reed before entering the motel room. They brought the gun to intimidate Phily
into giving them whatever he had. However, Davis stayed in the car.
Reed held the gun when he entered the motel room and he shot Phily. Devine watched
Reed shoot Phily after they struggled with the gun. One of the men pointed the gun at her during
the incident. Devine was shocked and scared. She worried one of the men would shoot her that
night. The other man held another gun in McGlothlen’s face.
When taken in the light most favorable to the State, the record as a whole shows that Reed
pointed a gun at Devine, and she feared for her safety. In addition, Davis participated in the crime
as an accomplice because he aided Reed in committing the crime by retrieving the gun and
planning the crime, and he knew the crimes Reed intended to commit, a robbery and an assault by
intimidating the occupants with a weapon. Therefore, we conclude that sufficient evidence exists
to support both Davis’s and Reed’s convictions for assault in the second degree against Devine.
3. Assault on Kelly (Count V)
As previously stated, Davis planned the crime with Reed and Daniel. Davis and Reed
retrieved the gun from Reed’s house. They brought the gun to intimidate and scare Phily. Nearly
immediately after one of the men opened the door to the motel room, Reed shot Phily. Kelly ran
into the bathroom and crouched down because she feared for her safety. One of the men entered
the bathroom holding a gun and asked Kelly where items were located. She feared for her safety
31
48324-6-II / 48520-6-II
because she witnessed one of the men shoot Phily. Shortly thereafter, the man exited the bathroom.
Kelly grabbed her belongings and ran out to her mother’s house.
The evidence and its reasonable inferences, when taken in the light most favorable to the
State, shows that one of the defendants asked Kelly where items were located while holding a gun,
and Kelly feared for her safety. She displayed her fear by running away. In addition, Davis
participated in the crime as an accomplice. He aided the other men in committing the crime by
retrieving the gun and planning the crime, and he knew the crimes they intended to commit, a
robbery through intimidation of the occupants with a weapon, or an assault. Therefore, we
conclude that sufficient evidence exists to support both Davis’s and Reed’s convictions for assault
in the second degree against Kelly.
B. PROSECUTORIAL MISCONDUCT
Davis argues that the prosecutor committed misconduct in closing argument because he
twice misstated the law, he misused the puzzle analogy to explain reasonable doubt, and he
impugned defense counsel. Davis also argues that the repetitive misconduct of the prosecutor
denied him a fair trial. Reed adopts Davis’s arguments that the prosecutor committed misconduct.
We conclude that the prosecutor did not commit misconduct.
1. Standard of Review
“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial.
In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673 (2012). An appellant
claiming prosecutorial misconduct must demonstrate that the prosecutor’s conduct was both
improper and prejudicial. State v. Emery, 174 Wash. 2d 741, 759-61, 278 P.3d 653 (2012). To
establish prejudice, the appellant must then show that the improper comments had a substantial
likelihood of affecting the verdict. Emery, 174 Wash. 2d at 760.
32
48324-6-II / 48520-6-II
But when the defendant failed to object to the improper comments at trial, the defendant
must also show that the comments were “so flagrant and ill intentioned that an instruction could
not have cured the resulting prejudice.” Emery, 174 Wash. 2d at 760-61. The appellant must show
that (1) no curative instruction would have eliminated the prejudicial effect, and (2) the misconduct
resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wash. 2d
at 761. The focus of this inquiry is more on whether the resulting prejudice could have been cured,
rather than the flagrant or ill-intentioned nature of the remarks. Emery, 174 Wash. 2d at 761-62.
2. Misstating the Law
Davis and Reed argue that in closing argument the prosecutor misstated the law on the
robbery charge and the two counts of assault. Reed objected to the statement relating to the
robbery, but Davis did not. Neither Davis nor Reed objected to the argument on the assaults.
“A prosecuting attorney commits misconduct by misstating the law.” State v. Allen, 182
Wash. 2d 364, 373, 341 P.3d 268 (2015). Yet, the improper statements must also be prejudicial.
Allen, 182 Wash. 2d at 375.
a. Robbery
We address Davis’s and Reed’s argument that the prosecutor misstated the law by stating,
“If they were party to a robbery, their guilt as to each of these offenses flows naturally.” 13 RP at
1787. Davis and Reed argue the prosecutor misstated the law because the statement implied that
if the jury found one of the defendants guilty of murder in the first degree because he participated
in the robbery, then he was also guilty of all of the other charges. Br. of Appellant Davis at 34.
To convict Davis or Reed of any of the crimes as an accomplice, the jury must have found
that he,
with knowledge that it will promote or facilitate the commission of the crime, . . .
either:
33
48324-6-II / 48520-6-II
(1) solicits, commands, encourages, or requests another person to commit
the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word ‘aid’ means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is an accomplice in the
commission of a crime is guilty of that crime whether present at the scene or not.
CP (Davis) at 279 (Instr. 19).
Here, the prosecutor referred to incident or crimes committed as “the robbery” throughout
his argument. The prosecutor seemed to try to focus the jury on the robbery first, because the basis
of either defendant’s conviction as an accomplice relied on whether he was a party to the robbery.
As stated in the definition for accomplice liability, Davis or Reed must have solicited, encouraged,
or aided Daniel in the crimes. After the trial court overruled the objection to the challenged
statement, the prosecutor argued that “the central issue here is whether or not these people were
involved in a robbery . . . it is not about who the shooter was.” 13 RP at 1788. The prosecutor did
not misstate the law because he made a factual argument about the accomplice charges. The
prosecutor argued that if either defendant acted as an accomplice in the robbery, he was also
responsible for the crimes that occurred as part of the robbery and the murder that occurred during
the robbery. If the jury found a defendant guilty of the robbery, based on the facts, the defendant
would also be guilty of the other charges based on what occurred during the robbery.
Regardless, Davis and Reed are unable to show prejudice here under either standard.
Because Reed objected to the statement, he must show that the improper comments had a
substantial likelihood of affecting the verdict. Emery, 174 Wash. 2d at 759-61. Reed failed to show
that there was a substantial likelihood that the comment affected the verdict. Because Davis did
not object to the statement, he must show that the statement was “so flagrant and ill intentioned
that an instruction could not have cured the resulting prejudice.” Emery, 174 Wash. 2d at 760-61.
Davis fails to meet this burden.
34
48324-6-II / 48520-6-II
The trial court properly instructed the jury on accomplice liability and what was required
to convict either defendant as an accomplice on each crime. Emery, 174 Wash. 2d at 759-61. We
presume the jury follows the trial court’s instructions. Anderson, 153 Wash. App. at 428. Further,
the jury was instructed that it “must separately decide each count charged against each defendant.
Your verdict on one count as to one defendant should not control your verdict on any other count.”
CP (Davis) at 273 (Instr. 13). Even if the jury misunderstood the prosecutor’s argument that if it
found one defendant committed the robbery, the court instructed that the jury needed to consider
the other defendant’s actions separately. In addition, Reed’s counsel responded directly to this
statement in her closing argument and argued that the jury must consider each defendant and each
count separately. Accordingly, we conclude that the prosecutor did not commit misconduct by
this statement.
b. Assaults
Next, we address whether the prosecutor misstated the law twice when he first argued that
Kelly and Devine were victims of assault because they witnessed the intruders shoot Phily, and
second, in rebuttal, when he argued that “the act that they did that makes them responsible [for the
assaults] . . . it’s barging into the room.” 13 RP at 1889. Because neither of these statements was
objected to, Davis and Reed must show that the comments were “so flagrant and ill intentioned
that an instruction could not have cured the resulting prejudice.” Emery, 174 Wash. 2d at 760-61.
To determine whether the prosecutor misstated the law, we consider State v. Asaeli, 150
Wash. App. 543, 208 P.3d 1136 (2009), and review whether someone may be a victim of assault if
he or she witnessed someone else being shot. In Asaeli, the defendant intentionally shot into a car
containing multiple people, multiple times. 150 Wash. App. at 582. The court determined that “[a]t
35
48324-6-II / 48520-6-II
the very least, this was an act done with the intent to create in another apprehension and fear of
bodily injury.” Asaeli, 150 Wash. App. at 582. Because the victim of the charged assault’s testimony
established that she saw at least two of the bullets come through the car’s
windshield and that she lay down in the back seat after Asaeli started shooting.
[The court determined that a]lthough [the victim] did not testify that she was afraid
she would be shot and injured, the fact she was aware of the gunfire and took the
only cover she could creates a very strong inference that the shooting created an
apprehension and imminent fear of bodily injury.
Asaeli, 150 Wash. App. at 582. Accordingly, the court determined that the evidence that the
defendant committed an assault against the victim was strong. Asaeli, 150 Wash. App. at 582.
Here, the prosecutor’s statement was followed by:
That is an act, barging into a room. They are there. They are guests. This is a
happy place. It’s supposed to be a happy place, and two men, uninvited, forced
their way in. That’s an act, and then one of those men has a gun, and then one of
those men shoots [Phily]. . . . What’s the act they did? That’s the act. The act of
invading that space, one of them armed with a gun, one of them shooting [Phily].
13 RP at 1889. In context, the statement focuses on the fact that both Kelly and Devine similarly
witnessed a shooting at close range in the motel room. Based on Asaeli, there would be sufficient
evidence for an inference that the shooting created an apprehension and imminent fear of bodily
injury. The defendants barging into the room did not establish facts that support an inference of
apprehension and fear of bodily injury, it was the shooting. Accordingly, we conclude that the
prosecutor did not misstate the law.
Regardless, Davis and Reed again fail to prove that the statement prejudiced them because
the statement was not so flagrant and ill-intentioned that no curative instruction would have
eliminated any prejudicial effect of the statement. Again, we presume the jury follows the trial
court’s instructions. Anderson, 153 Wash. App. at 428. The court instructed the jury on the elements
of assault, and from the jury instructions it was clear what the State needed to prove. Davis and
Reed fail to meet their burden of proving that the comment was so flagrant and ill-intentioned that
36
48324-6-II / 48520-6-II
a curative instruction could not have cured it. Therefore, we conclude that the prosecutor did not
commit misconduct in closing argument by misstating the law.14
3. Puzzle Analogy
Next we address the prosecutor’s puzzle analogy. Davis and Reed both objected to this
argument, and thus, they must demonstrate that the comments were improper and had a substantial
likelihood of affecting the verdict. Emery, 174 Wash. 2d at 759-61.
Several cases have addressed the “puzzle analogy.” State v. Lindsay, 180 Wash. 2d 423, 436,
326 P.3d 125, 131 (2014); State v. Fuller, 169 Wash. App. 797, 825-27, 282 P.3d 126 (2012), review
denied, 176 Wash. 2d 1006, 297 P.3d 68 (2013); State v. Curtiss, 161 Wash. App. 673, 700, 250 P.3d
496 (2011); State v. Johnson, 158 Wash. App. 677, 685, 243 P.3d 936 (2010).
In Johnson, the court held that “the prosecutor’s arguments discussing the reasonable doubt
standard in the context of making an affirmative decision based on a partially completed puzzle
trivialized the State’s burden, focused on the degree of certainty the jurors needed to act, and
implied that the jury had a duty to convict without a reason not to do so.” 158 Wash. App. at 685.
Accordingly, the court found the statement was improper and prejudicial. Johnson, 158 Wash. App.
at 685-86.
The court in Curtiss held that a similar puzzle analogy was proper. 161 Wash. App. at 700-
01. There, the prosecutor stated, “There will come a time when you’re putting that puzzle together,
and even with pieces missing, you’ll be able to say, with some certainty, beyond a reasonable
doubt what that puzzle is: The Tacoma Dome.” Curtiss, 161 Wash. App. at 700.
14
Davis also argues that he received ineffective assistance of counsel because his attorney failed
to object to the prosecutor’s misstatement of the law. Because we conclude that the prosecutor did
not misstate the law, the proposed objection would not have been sustained, and thus, the argument
fails. See In re Pers. Restraint of Davis, 152 Wash. 2d 647, 714, 101 P.3d 1 (2004).
37
48324-6-II / 48520-6-II
The Fuller court explained the difference between Johnson and Curtiss. 169 Wash. App. at
825-28. The key difference was that the “quantification by the prosecutor of the number of pieces
and percentage of completion required for reasonable doubt in Johnson was entirely different from
the prosecutor’s general reference to being able to discern the subject of a puzzle with some pieces
missing in Curtiss.” Lindsay, 180 Wash. 2d at 435. “The former statement introduced elements of
specific quantification into the reasonable doubt analysis, while the latter did not.” Lindsay, 180
Wash. 2d at 435.
The Lindsay court held that its case was plainly analogous to Johnson because the
prosecutor stated, “You could have 50 percent of those puzzle pieces missing and you know it’s
Seattle,” quantifying the standard of proof. 180 Wash. 2d at 436.
Here, the prosecutor’s statements are analogous to the comments in Curtiss or Fuller
because he did not make a reference to what percent of the puzzle would need to be complete to
constitute reasonable doubt. The prosecutor merely suggested that at a certain point, even with
missing pieces, the jury could be certain of the puzzle’s image beyond a reasonable doubt. In
addition, the portion of the prosecutor’s argument that discussed being on a ferry boat did not
trivialize the burden for sitting as a juror in a murder trial. Therefore, we conclude that the
prosecutor did not commit misconduct when he argued the puzzle analogy because the statement
was not improper.
4. Impugning Defense Counsel
Finally, we address whether the prosecutor’s comments impugned defense counsel. Only
Reed objected to this statement, and thus, Davis must demonstrate the comments were “so flagrant
and ill intentioned that an instruction could not have cured the resulting prejudice.” Emery, 174
38
48324-6-II / 48520-6-II
Wn.2d at 760-61. Reed must show that the comments had a substantial likelihood of affecting the
verdict. Emery, 174 Wash. 2d at 761.
“[A] prosecutor must not impugn the role or integrity of defense counsel. Prosecutorial
statements that malign defense counsel can severely damage an accused’s opportunity to present
his or her case and are therefore impermissible.” Lindsay, 180 Wash. 2d at 431-32 (internal citation
omitted).
In cases where courts have found that the prosecutor impugned defense counsel, the
prosecutor made much more egregious statements than the challenged statements here.
In [State v.] Negrete, for example, the prosecutor said that defense counsel was
“‘being paid to twist the words of the witnesses.’” 72 Wn. App. [62,] 66, 863 P.2d
137 [1993]. In State v. Gonzales, the prosecutor impermissibly contrasted the roles
of prosecutor and defense counsel, stating that while the defense attorney’s duty
was to his criminal client, the prosecutor’s duty was “‘to see that justice is served.’”
111 Wash. App. 276, 283, 45 P.3d 205 (2002). And in Bruno [v. Rushen], “the
obvious import of the prosecutor’s comments was that all defense counsel in
criminal cases are retained solely to lie and distort the facts and camouflage the
truth.” 721 F.2d [1193,] 1194 [1983].
Lindsay, 180 Wash. 2d at 433. In Lindsay, the court found that one statement by the prosecutor did
impugn defense counsel: “This is a crock. What you’ve been pitched for the last four hours is a
crock.” 180 Wash. 2d at 433. The Lindsay court analogized the statement to a similar statement
found to impugn the defense counsel in State v. Thorgerson, 172 Wash. 2d 438, 451-52, 258 P.3d 43
(2011): the prosecutor referred to defense counsel’s presentation of his case as “‘bogus’” and
involving “‘sleight of hand.’” 180 Wash. 2d at 433.
Here, the prosecutor stated, “And everyone is entitled to vigorous representation and an
advocate that will fight for you, but don’t confuse vigorous advocacy with there being any merit
to what [defense counsel] said to you during their comments.” 13 RP at 1878. The statement was
not improper and did not impugn defense counsel.
39
48324-6-II / 48520-6-II
5. Repetitive Misconduct
Davis argues that the repetitive misconduct of the prosecutor denied him a fair trial.
“Repetitive misconduct can have a ‘cumulative effect.’” Allen, 182 Wash. 2d at 376 (quoting
Glasmann, 175 Wash. 2d at 707) (internal quotations omitted). Although repetitive misconduct can
have a cumulative effect, here it did not. Because of our conclusions regarding prosecutorial
misconduct, there exists no repetitive misconduct. Accordingly, we conclude that Davis was not
denied a fair trial.
C. PRIOR CONSISTENT STATEMENT15
Davis argues and Reed asserts that the trial court abused its discretion by admitting
Daniel’s prior consistent statement because the trial court did not consider whether he was unlikely
to have foreseen the legal consequences of his statement when he made it.16 Davis also argues that
the recording of Daniel’s statement was irrelevant and prejudicial. We disagree.
1. Standard of Review
We review a trial court’s decision to exclude or admit evidence under an abuse of discretion
standard. State v. Thomas, 150 Wash. 2d 821, 856, 83 P.3d 970 (2004). “A trial court’s decision will
be reversed only if no reasonable person would have decided the matter as the trial court did.”
Thomas, 150 Wash. 2d at 856. “Proper objection must be made at trial to perceived errors in
15
In his SAG, Reed joins and adopts Davis’s argument that the trial court its discretion by
admitting evidence as a prior consistent statement based on its erroneous view of the law.
16
Davis also argues that the trial court abused its discretion because it did not review the transcript
of the statement in its entirety before admitting the recording. He is incorrect. The trial court
found that the redacted interview did not include direct reference to Reed, and the statements did
not violate the confrontation clause. Regardless, Davis does not assign error to specific portions
of the statement. An appellant must provide this court with references to relevant parts of the
record to support its argument. Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809,
828 P.2d 549 (1992); RAP 10.3(a)(6). Accordingly, we do not address this portion of Davis’s
argument.
40
48324-6-II / 48520-6-II
admitting or excluding evidence and failure to do so precludes raising the issue on appeal.”
Thomas, 150 Wash. 2d at 856; RAP 2.5(a). “If the trial court based its evidentiary ruling on an
incomplete legal analysis or a misapprehension of legal issues, the ruling may be an abuse of
discretion.” State v. McComas, 186 Wash. App. 307, 312, 345 P.3d 36, review denied, 184 Wash. 2d
1008 (2015).
2. The Trial Court Did Not Abuse Its Discretion
a. Relevance
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” ER 401. Relevant evidence is generally admissible. ER 402. “The
threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible.”
State v. Darden, 145 Wash. 2d 612, 621, 41 P.3d 1189 (2002). Yet, relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” ER 403.
Here, Daniel’s prior consistent statement was relevant because Daniel was a co-defendant
who testified about the crimes and both defendants’ involvement. Although he provided
inconsistent statements about Reed threatening him and his motivation for the crime, his other
statements were consistent. The statement was relevant to rebut the implied charge by the
defendants that he changed his testimony for the plea agreement. Because the majority of his
statement to police was consistent with his trial testimony, it was relevant. The trial court did not
abuse its discretion by admitting the evidence on relevancy grounds.
41
48324-6-II / 48520-6-II
b. Rebutting Improper Motive
ER 801(d)(1) provides that a statement is not hearsay if:
The declarant testifies at the trial or hearing and is subject to cross[-]examination
concerning the statement, and the statement is . . . (ii) consistent with the declarant’s
testimony and is offered to rebut an express or implied charge against the declarant
of recent fabrication or improper influence or motive.
If cross-examination raises an inference “that the witness changed [his] story in response to an
external pressure, then whether that witness gave the same account of the story prior to the onset
of the external pressure becomes highly probative of the veracity of the witness’s story given while
testifying.” Thomas, 150 Wash. 2d at 865. “Cross-examination designed to show that the witness
has the motive to change his story to receive a plea agreement triggers ER 801(d)(1)(ii).” State v.
McWilliams, 177 Wash. App. 139, 148, 311 P.3d 584 (2013).
Here, both Davis and Reed implied that Daniel fabricated his testimony to receive the
benefits of his plea bargain. The trial court concluded that both defendants highlighted and
emphasized Daniel’s reduced sentence to imply that the core of Daniel’s testimony could not be
believed because of the plea agreement.
However, “‘[t]he mere assertion that motives to lie may have existed at the time of the prior
statement is insufficient to prevent their admission.’” McWilliams, 177 Wash. App. at 149 (quoting
State v. Makela, 66 Wash. App. 164, 173, 831 P.2d 1109 (1992)). Accordingly, as a threshold matter,
the trial court must determine “whether the proffered motive [to lie] rises to the level necessary to
exclude the prior consistent statement.” Makela, 66 Wash. App. at 173. “To do so, the trial court
considers whether the witness made the prior consistent statements when ‘the witness was unlikely
to have foreseen the legal consequences of his or her statements.’” McWilliams, 177 Wash. App. at
149 (quoting Makela, 66 Wash. App. at 169).
42
48324-6-II / 48520-6-II
The trial court concluded that Daniel was unlikely to have foreseen the legal consequences
of his statement when he provided it to the police. The trial court considered that Daniel entered
into a plea agreement long after he made the prior consistent statement to law enforcement. Daniel
testified that he learned after a year and a half of being in jail that he could reach an agreement
with the State. All of the parties agreed on this issue. Accordingly, the trial court utilized the
proper test for admission and did not abuse its discretion in admitting the prior consistent
statement. Therefore, we conclude that because the trial court did not make a decision that no
reasonable person would have made, it did not abuse its discretion.
D. CUMULATIVE ERROR
Davis argues that reversal is required because cumulative error denied his right to a fair
trial. Reed also argues that reversal is required because cumulative error denied his right to a fair
trial. We disagree.
The cumulative error doctrine applies only in circumstances where there were several trial
errors that standing alone may not be sufficient to justify reversal, but viewed together may deny
the defendant a fair trial. State v. Greiff, 141 Wash. 2d 910, 929, 10 P.3d 390 (2000). Where no
prejudicial error is shown to have occurred, cumulative error cannot be said to have deprived the
defendant of a fair trial. State v. Stevens, 58 Wash. App. 478, 498, 794 P.2d 38 (1990).
None of Davis’s claimed errors undermined his right to a fair trial or the validity of his
convictions because there was no error. In addition, none of Reed’s claimed errors undermined
his right to a fair trial or the validity of his convictions because the only error was harmless.
Accordingly, we hold that both Davis’s and Reed’s claims of cumulative error fail.
43
48324-6-II / 48520-6-II
E. APPELLATE COSTS
Reed opposes appellate costs in light of State v. Sinclair, 192 Wash. App. 380, 367 P.3d 612,
review denied, 185 Wash. 2d 1034 (2016), asserting that he does not have the ability to pay. For the
first time in his reply brief, Davis asks us to exercise our discretion and not award costs to the
State. He filed a motion on this issue, and asks us to consider the motion as a supplement to his
opening brief.
If the State decides to file a cost bill and if Reed and Davis each object to that cost bill, a
commissioner of this court will consider whether to award appellate costs pursuant to RAP 14.2.
STATEMENT OF ADDITIONAL GROUNDS—DAVIS
Davis asserts that the prosecutor ignored exculpatory evidence and statements and
“bullied” the jury into a guilty verdict. SAG (Davis) at 1. He also asserts that the trial was biased.
However, Davis does not identify any clear error, he simply states these assertions as facts.
In addition, Davis asserts that his attorney withdrew because Davis refused to take plea
deal. Davis again does not identify any clear error. This assertion pertains to matters outside the
record. On direct appeal, we cannot consider matters outside the record. Curtiss, 161 Wash. App.
at 703 (citing State v. McFarland, 127 Wash. 2d 322, 338 n.5, 899 P.2d 1251 (1995) (“a personal
restraint petition is the appropriate means of having the reviewing court consider matters outside
the record”)). Although RAP 10.10 does not require an appellant to refer to the record or cite
authority, he is required to inform us of the “nature and occurrence of the alleged errors.” RAP
10.10(c). Davis’s assertions of error are too vague to allow us to identify the issues and we do not
reach them.
Davis also asserts that he did not receive a copy of his discovery. However, Davis actually
admits in the same sentence that he did receive a copy of his discovery, but it was only a week
44
48324-6-II / 48520-6-II
before trial. Furthermore, this argument pertains to matters outside the record, and he also
concedes the issue. Therefore, we do not reach the issue.
STATEMENT OF ADDITIONAL GROUNDS—REED
Reed asserts that he received ineffective assistance of counsel because he was denied
confidentiality in his conversations with his attorney. However, nothing in the record shows that
his attorney’s performance was deficient based on the concern about the strength of the victim’s
mother’s hearing aid. As previously stated, although RAP 10.10 does not require an appellant to
refer to the record or cite authority, he is required to inform us of the “nature and occurrence of
the alleged errors.” RAP 10.10(c). Reed’s assertion of error is too vague to allow us to identify
the issues and thus, we do not reach them.
In addition, Reed asserts that the victim’s mother could hear him speaking with his attorney
during trial with her listening device and shared the content of the conversations with the
prosecution. This claim pertains to matters outside the record.
During trial, the trial court informed the parties that the victim’s mother was using a hearing
device that could pick up conversations in the courtroom. The trial court asked the parties to
inform the court if they wanted the device silenced for some reason. After Reed’s attorney
expressed concern about her ability to speak to Reed, the trial court responded:
it can pick up conversations that otherwise a normal hearing person would not be
able to given the distance, so what I’m suggesting to the both of you, both to you
and [Davis’s attorney] is that you be circumspect in those conversations, do them
in writing or whatever, if there needs to be something of importance said, you
merely need to report the Court. If it takes that we have to take a break so you can
have a conversation with your client, then I will do so.
2 RP at 243. Reed’s attorney stated on the record that she did not feel she was able to communicate
freely with Reed because of her concern that the victim’s mother overheard their conversation. In
response, the trial court reiterated that they communicate in writing or ask for a brief break for a
45
48324-6-II / 48520-6-II
conversation, and the court would turn off the device.17 The State stated that it expressed to the
victim’s mother the importance of that counsel be able to confer with their clients in confidence
and to alert the court if she began to hear such communications.
Nothing in the record clearly reflects that the victim’s mother heard the conversations or
communicated anything to the State. Again, on direct appeal, we cannot consider matters outside
the record and a personal restrain petition is the appropriate means for this issue. McFarland, 127
Wash. 2d at 338 n.5. Therefore, we do not consider this issue.
I. SUFFICIENCY OF THE EVIDENCE
Reed seems to assert that his conviction should be reversed because insufficient evidence
supports a conviction of murder in the first degree because he was an accomplice and should only
have been on trial for a charge of murder in the second degree. Because Daniel, Reed’s co-
defendant, was the shooter but only convicted of murder in the second degree, Reed asserts that
he should also have been convicted of murder in the second degree as an accomplice.
RCW 9A.32.030(1) provides that “A person is guilty of murder in the first degree when: .
. . (c) He or she commits or attempts to commit the crime of . . . (3) burglary in the first degree, . .
. and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she,
or another participant, causes the death of a person other than one of the participants.”
Reed does not challenge his conviction of burglary in the first degree. Reed also does not
challenge that Phily died during the course of the robbery. Therefore, sufficient evidence supports
his conviction of murder in the first degree because he committed one of the enumerated felonies
and a death of someone other than a participant resulted in the course of the crime.
17
The trial court specifically noted that it was “not making a finding that Ms. Phily can overhear
anything at all.” 2 RP at 246-47.
46
48324-6-II / 48520-6-II
II. ISSUES ADDRESSED IN REED’S DIRECT APPEAL
In his SAG, Reed joins and adopts Davis’s argument that the trial court abused its discretion
by admitting Daniel’s statement as a prior consistent statement based on its erroneous view of the
law. For the same reasons explained in Section III C above, we hold that the trial court did not err
by admitting Davis’s statement.
Reed also requested to add to his appellate attorney’s argument in his appeal that the trial
court violated his right to confrontation by denying his motion to sever because the redaction of
Davis’s statement was insufficient. For the same reasons explained in Section II A above, we hold
that the trial court erred, but the error was harmless.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Bjorgen, C.J.
Lee, J.
47