State Of Washington, V Agyel Jumanne Mcdaniel ( 2015 )

FILED
COURT OF APPEALS
DIVISION II
2015 FEB 18
MI 9: 16
STA
IN THE COURT OF APPEALS OF THE STATE OF WASIII
DIVISION II
STATE OF WASHINGTON, No. 44972 -2 -II
Respondent,
v.
AGYEI JUMAANE MCDANIEL, PART PUBLISHED OPINION
Appellant.
WoRSwIcK, J. — Agyei McDaniel appeals his convictions for second degree murder and
second degree unlawful possession of a firearm. He argues, among other things, that the felony
murder statute is ambiguous regarding whether assault is a predicate offense and therefore the
rule of lenity requires his conviction be reversed. In the published portion of this opinion, we
hold that the felony murder statute is not ambiguous, and that it clearly includes a deadly assault
as a predicate offense. In the unpublished portion of the opinion, we disagree with McDaniel' s
remaining assignments of error. Accordingly, we affirm.
FACTS
McDaniel shot and killed Patrick Nicholas. Testimony at trial showed that the two men
were close friends.
McDaniel rented a large storage unit in Tacoma, and Nicholas' s family kept some
belongings in it in exchange for a small portion of the monthly fee. Being late in payments,
McDaniel was required to vacate the unit on December 4, 2012.
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On the afternoon of December 4, McDaniel, McDaniel' s wife Angela, 1 Nicholas, and
Nicholas' s wife Korrin Tennyson went to the storage unit. At the storage unit, McDaniel and
Nicholas argued with each other. McDaniel felt nervous during the argument because Nicholas
seemed extremely angry, and was atypically keeping his hands in his pockets as he talked.
McDaniel knew that Nicholas often carried a gun, and McDaniel thought Nicholas might be
pointing a gun at McDaniel through Nicholas' s pocket. McDaniel also thought Nicholas might
be under the influence of PCP2 - dipped cigarettes, which McDaniel knew Nicholas sometimes
used.
Nicholas began to advance on McDaniel, saying " What you gonna do ?" 6 Verbatim
Report of Proceedings ( VRP) at 690 -91. McDaniel saw that Nicholas had one hand fully in one
pocket and the other hand halfway in another pocket. McDaniel could see something in
Nicholas' s hand. Nicholas continued to advance on McDaniel, who thought Nicholas was either
going to pistol -whip or shoot him. McDaniel then drew a gun and shot Nicholas twice.
McDaniel and Angela left the storage facility, returned home, packed some bags, and
drove north. They stayed in a motel in Arlington overnight, but returned to Tacoma the
following day, where McDaniel surrendered to authorities.
Nicholas died at a hospital the day after the shooting. The medical examiner determined
the cause of death to be a penetrating gunshot wound to the head around the front of Nicholas' s
scalp. Nicholas also suffered a nonfatal gunshot wound to his shoulder.
1 We refer to Angela McDaniel by her first name for clarity. No disrespect is intended.
2 PCP, or phencyclidine, is a recreational street drug. State v. Baity, 140 Wash. 2d 1, ' 5, 991 P.2d
1151 ( 2000).
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The State charged McDaniel in an amended information with one count of second degree
murder with intent to cause Nicholas' s death3 and, in the alternative, second degree felony
murder while committing or attempting to commit second degree assault.4 The State also
charged him with second degree unlawful possession of a firearm.5
The jury found McDaniel guilty of second degree felony murder with assault as the
predicate felony and unlawful possession of a firearm. By a special interrogatory, the jury found
that McDaniel did not intentionally kill Nicholas but rather found him guilty of felony murder in
the course of and in furtherance of assault.
ANALYSIS
McDaniel argues that because the felony murder statute is ambiguous with regard to
whether an assault causing death is a predicate offense, the rule of lenity applies and requires his
conviction be reversed. We disagree with McDaniel that the felony murder statute is ambiguous.
Its plain language clearly includes assault as a predicate offense.
I. STANDARD OF REVIEW
We review interpretation of a statute de novo. State v. Bunker, 169 Wash. 2d 571, 577 -78,
238 P.3d 487 ( 2010). We endeavor to effectuate the legislature' s intent. 169 Wash. 2d at 577 -78.
First, we look to the plain language of the statute: if it is unambiguous, then the plain meaning
governs. State v. Bostrom, 127 Wash. 2d 580, 586 -87, 902 P.2d 157 ( 1995). If the statute is
3 RCW 9A.32. 050( 1)( a).
4 RCW 9A.32. 050( 1)( b).
5
RCW 9. 41. 040( 2)( a). This provision was amended in 2014, but the amendments do not affect
our analysis.
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ambiguous, we apply traditional statutory interpretation rules to determine its meaning. State v.
Evans, 177 Wash. 2d 186, 192 -94, 298 P.3d 724 ( 2013). The rule of lenity applies only if the plain
language of the statute is ambiguous and traditional statutory interpretation rules do not help
clarify it. Evans, 177 Wash. 2d 192 -94.
II. STATUTE UNAMBIGUOUSLY INCLUDES ASSAULT AS PREDICATE OFFENSE
McDaniel argues that the felony murder statute is ambiguous with regard to whether
assault is a predicate offense when the assault is the same act resulting in the death. He argues
that the statute could be read to apply only to those assaults separate from the act resulting in
death. We disagree.
Division One of this court has rejected an argument identical to McDaniel' s. State v.
Gordon, 153 Wn. App. 516, 527 -29, 223 P.3d 519 ( 2009), rev 'd on other grounds, 172 Wash. 2d
671, 260 P.3d 884 ( 2011). The Gordon court concluded that RCW 9A.32. 050( 1)( b) was not
ambiguous. 153 Wash. App. at 529. We follow the holding of Gordon. The statute is not
ambiguous and a plain language reading of the statute defeats McDaniel' s argument.
RCW 9A.32.050( 1)( b) provides that a person commits felony murder if he or she
commits or attempts to commit any felony, including assault ... and, in the course of and 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. ". (Emphasis added.) This statute
unambiguously singles out assault as a predicate offense.
McDaniel urges this court to hold that the " in course of and in furtherance of' language
demonstrates that the legislature intended only separate, non -fatal assaults to be predicate
offenses. Br. of Appellant at 17. But this is an illogical reading of the statute: it ignores the fact
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that a death cannot occur " in furtherance of' a separate assault that does not cause the death.
Were McDaniel correct, the phrase " including assault" would encompass only assaults which
were non -deadly by themselves, but nonetheless caused deaths to occur in furtherance of these
assaults. McDaniel provides no examples of a factual scenario that would fit this reading. We
avoid construing statutes in a way that produces an absurd result, because we presume that the
legislature does not intend absurd results. State v. Engel, 166 Wash. 2d 572, 579, 210 P.3d 1007
2009). We therefore presume the legislature did not intend to include only assaults that do not
cause a death, but where a death results in furtherance of assaults as well.
Moreover, McDaniel' s reading ignores the fact that the legislature explicitly added the
words " including assault" to the statute after our Supreme Court held that assault was not a
predicate offense. In re Pers. Restraint ofAndress, 147 Wash. 2d 602, 610, 56 P.3d 981 ( 2002). In
adding this phrase the legislature found
that the 1975 legislature clearly and unambiguously stated that any felony,
including assault, can be a predicate offense for felony murder.... The legislature
does not agree with or accept the court' s findings of legislative intent in State v.
Andress ... and reasserts that assault has always been and still remains a predicate
offense for felony murder in the second degree.
LAws OF 2003, ch. 3, § 1; In re Pers. Restraint ofBowman, 162 Wash. 2d 325, 335, 172 P.3d 681
2007) ( "[ F] ollowing our decision in Andress, the legislature amended the second degree felony
murder statute, effective February 12, 2003, to clarify that assault is included as a predicate
crime under the second degree felony murder statute. "); Gordon, 153 Wash. App. at 527 -29. We
do not delete language from an unambiguous statute. State v. J.P., 149 Wash. 2d 444, 450, 69 P.3d
318 ( 2003). We must therefore give effect to the plain language " including assault."
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2 -II
Because the statute is unambiguous under traditional rules of statutory interpretation, we
do not apply the rule of lenity. City ofSeattle v. Winebrenner, 167 Wash. 2d 451, 462, 219 P.3d
686 ( 2009). Therefore, we affirm McDaniel' s conviction.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
McDaniel also argues that his convictions for second degree murder and second degree
unlawful possession of a firearm should be reversed because ( 1) the breadth of prosecutorial
discretion when charging felony murder based on assault violated McDaniel' s equal protection
rights, ( 2) the trial court violated McDaniel' s right to present a defense when it excluded expert
gang testimony, and ( 3) McDaniel' s trial counsel was ineffective because she allowed the
prosecution to implicate McDaniel in an otherwise inadmissible prior offense during
impeachment of a witness. We disagree.
ADDITIONAL FACTS
McDaniel asserted the defense of self -defense. To support his defense, he sought to
introduce general evidence about gangs through an expert, Tacoma Police Detective John
Ringer. Before trial, McDaniel submitted a summary of his proposed expert testimony about
gangs. He planned to have Detective Ringer provide general information about gangs and
specific information about the Tacoma Hilltop Crips. McDaniel wanted Detective Ringer' s
testimony to show the jury that street gangs can have many purposes, including violence for
violence' s sake, arguing that this information was outside the jury' s common experience. In
addition, McDaniel also proposed to introduce evidence that Nicholas was a member of the
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Hilltop Crips. McDaniel argued that this evidence would demonstrate one cause of McDaniel' s
fear of Nicholas and would also help explain that McDaniel fled north after the shooting to get
out of Hilltop Crip territory.
The State moved to exclude Detective Ringer' s testimony as well as evidence of
Nicholas' s gang affiliation, apart from evidence McDaniel might offer of his own knowledge.
The trial court granted the State' s motion to exclude Detective Ringer' s testimony and evidence
of Nicholas' s gang involvement, but the court ruled that McDaniel could testify regarding his
personal knowledge about Nicholas. Despite this ruling, McDaniel did not testify at trial about
his knowledge of Nicholas' s gang affiliation.
McDaniel testified that he and Angela had been together for 22 years, and that their
oldest son was 20 years old. Angela also testified at trial. On cross -examination, the State asked
Angela about some statements she had made during the police investigation that differed from
her trial testimony. In response to questioning about why her impressions of events had
changed, Angela said that she was traumatized and terrified when she was questioned shortly
after the incident, so her memory was hazy. On redirect examination, McDaniel asked Angela:
Have you been through anything like this before ?" to which Angela responded, " No, nothing
like this." 6 VRP at 852.
Outside the presence of the jury, the State argued that this question and answer had
opened the door to impeachment based on a prior violent offense by McDaniel. The State noted
that Angela had testified that she had never been through anything like the shooting here, when
in fact in 1996 McDaniel had shot at a group of people in Angela' s apartment, striking one man
in the head. Angela had been a crucial witness in that investigation. The State argued that
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No. 44972 -2 -II
Angela' s trial testimony was therefore a lie, and opened the door to questioning about the 1996
incident. The trial court agreed with the State that the door had been opened. The State said it
did not intend to elicit testimony implicating McDaniel in the 1996 shooting, because it was
Angela' s credibility, not McDaniel' s criminal history, at issue.
The trial court agreed with the State. McDaniel' s counsel yielded, saying: " Well, I agree
with the assessment that I have heard this morning. My concern was that [ Angela] should be
impeached in regard to her experiences, but not in regard to any connection with my client." 7
VRP at 873. Neither party discussed the issue of the jury independently speculating that
McDaniel might have been Angela' s boyfriend, and therefore the shooter, in 1996.
After the jury returned to the courtroom, the State asked Angela if she had been through
anything like this before. When she again denied it, the State asked whether she had been a
witness to a shooting by the man she was dating in 1996. Although Angela at first denied that
she had witnessed such a shooting, she ultimately agreed that she had given a statement about a
1996 shooting to the police and that this made her a witness. McDaniel did not object.
ADDITIONAL ANALYSIS
III. EQUAL PROTECTION AND DUE PROCESS: PROSECUTORIAL DISCRETION
McDaniel argues that the State' s broad prosecutorial discretion to charge either voluntary
manslaughter or second degree murder for the same conduct violates his equal protection or due
6
process rights. U. S. CONST. amend. XIV; WASH. CONST. art. I, § 12. We disagree.
6 In his brief, McDaniel cites generally the Fourteenth Amendment to the United States
Constitution and article I,. § 12, of the Washington Constitution. His argument focuses
exclusively on equal protection.
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A. Standard ofReview
We review constitutional challenges de novo. State v. Vance, 168 Wash. 2d 754, 759, 230
P.3d 1055 ( 2010). When an appellant alleges an equal protection violation, this court must
determine which level of scrutiny applies. Schatz v. State Dep' t ofSoc. & Health Servs., 178
Wn. App. 16, 24, 314 P.3d 406 ( 2013), review denied, 180 Wash. 2d 1013( 2014). Where the
alleged discrimination affects a suspect classification such as race, or where it burdens
fundamental rights or liberties, it will be subject to strict scrutiny. State v. Hirschfelder, 170
Wash. 2d 536, 550, 242 P.3d 876 ( 2010). Intermediate scrutiny applies where a law affects a
semisuspect class, such as gender, or burdens an important right. 170 Wash. 2d at 550. Where
neither a suspect nor semisuspect class is involved, and where fundamental and important rights
are not burdened, the lowest level of scrutiny applies. 170 Wash. 2d at 550. This is rational basis
review. 170 Wash. 2d at 550. We use rational basis review to consider whether the differential
treatment of offenders violates equal protection. State v. Armstrong, 143 Wash. App. 333, 339,
178 P.3d 1048 ( 2008).
Our Supreme Court has articulated another test for reviewing equal protection challenges
to the felony murder statute. State v. Leech, 114 Wash. 2d 700, 711, 790 P.2d 160 ( 1990). Under
this second test, we consider whether " the crimes that the prosecuting attorney has the discretion
to charge require proof of different elements." 114 Wash. 2d at 711. Under this second framework,
equal protection is violated only when two statutes criminalize the same acts, but penalize them
differently. 114 Wash. 2d at 711.
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B. Rational Basis Exists for Felony Murder Based on Assault
McDaniel argues that, with assault as a predicate offense for felony murder, the class of
defendants who commit second degree assault resulting in death receive different treatment.
Some are charged with second degree murder (felony murder), while others are charged with
voluntary manslaughter. McDaniel argues that this distinction violates the equal protection and
fundamental fairness principles of both the federal and state constitutions.
Under rational basis review, the appellant bears the burden of demonstrating that the law
does not bear a rational relationship to any legitimate state interest. Hirschfelder, 170 Wash. 2d at
551. In Armstrong, Division One of this court addressed this question and held that the policy
choice to include assault as a predicate offense was rationally related to a legitimate state
interest. 143 Wash. App. at 340. As discussed below, we agree with the holding and rationale of
Division One.
Under Hirschfelder, McDaniel must show that the differential treatment of people who
commit an assault resulting in death bears no rational relation to any legitimate state interest.
170 Wash. 2d at 551. McDaniel cannot carry this burden. The felony murder statute seeks to
p] unish, under the applicable murder statutes, those who commit a homicide in the course [ of]
and in furtherance 'of a felony." LAws OF 2003, ch. 3, § 1; Armstrong, 143 Wash. App. at 339.
This statute is rationally related to the legitimate interest of "punishing those who commit a
homicide in the course of and in furtherance of a felony in the same manner as those who intend
to kill." Armstrong, 143 Wash. App. at 340. McDaniel' s argument fails, because the felony
murder statute passes rational basis review. 143 Wash. App. at 340.
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C. No Equal Protection Violation Because Potential Charges Had Different Elements
McDaniel' s argument also fails under the second test, which considers whether the two
statutes have the same elements but penalize the same act differently. The elements of felony
murder are different from the elements of manslaughter. RCW 9A.32. 050( 1)( b);
9A. 32. 060( 1)( a); see Leech, 114 Wash. 2d at 712. The elements of felony murder as charged here,
where assault is the predicate offense, are intentionally assaulting another either by recklessly
inflicting substantial bodily harm or with a deadly weapon, and causing the victim' s death in the
course of and in furtherance of the assault. RCW 9A.36. 021; 9A. 32. 050( 1)( b); Armstrong, 143
Wn. App. at 341. The elements of first degree or voluntary manslaughter are recklessly causing
another person' s death. RCW 9A.32. 060( 1)( a). Therefore, these statutes require different
mental states: second degree assault, and therefore felony murder as charged here, requires an
intentional assault, whereas first degree manslaughter requires a reckless state of mind. Leech,
114 Wash. 2d at 712; Armstrong, 143 Wash. App. at 341 -42. Because these crimes do not have the
same elements, the authority of the prosecuting attorney to charge the defendant•with felony
murder does not violate equal protection. Leech, 114 Wash. 2d at 712; State v. Wanrow, 91 Wash. 2d
301, 312, 588 P.2d 1320 ( 1978); Armstrong, 143 Wash. App. at 342.
IV. RIGHT To PRESENT A DEFENSE: VICTIM' S GANG AFFILIATION
McDaniel next argues that the trial court violated his right to present a defense when it
ruled that he could not present expert testimony about gangs. We disagree.
A. Standard ofReview
The United States and Washington Constitutions guarantee the right to present a defense.
U. S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Wittenbarger, 124 Wash. 2d 467, 474,
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880 P.2d 517 ( 1994). But this constitutional right is not absolute and does not extend to
irrelevant or inadmissible evidence. State v. Maupin, 128 Wash. 2d 918, 925, 913 P.2d 808 ( 1996).
We review a trial court' s rulings on evidentiary matters for an abuse of discretion so long as the
trial court properly applies the rules of evidence. State v. Aguirre, 168 Wash. 2d 350, 362 -63, 229
P.3d 669 ( 2010); State v. Foxhoven, 161 Wash. 2d 168, 174, 163 P.3d 786 ( 2007).
To be admissible, evidence must be relevant. ER 402. 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. For
expert testimony to be admissible under ER 702, testimony must be ( 1) by a qualified expert, ( 2)
based on an explanatory theory generally accepted in the scientific community, and ( 3) helpful to
the trier of fact. State v. Rafay, 168 Wash. App. 734, 784, 285 P.3d 83 ( 2012).
B. Trial Court Did Not Err by Excluding Irrelevant Expert Testimony
McDaniel argues that the trial court violated his right to present a defense when it
declined to allow expert testimony about gangs from Detective Ringer. We disagree because the
evidence was irrelevant, and the right to present a defense does not extend to irrelevant evidence.
7 In State v. Aguirre, our Supreme Court held that the scope of the right to present a defense
does not extend to the introduction of otherwise inadmissible evidence. The admissibility of
evidence under the rape shield statute, in turn, `` is within the sound discretion of the trial court. "'
168 Wash. 2d 350, 3663, 229 P.3d 669 ( 2010) ( citations omitted) ( quoting State v. Hudlow, 99
Wash. 2d 1, 17, 659 P.2d 514 ( 1983)).In State v. Jones, 168 Wash. 2d 713, 719, 230 P.3d 576 ( 2010),
decided in the same term as Aguirre, the court held that the standard of review is de novo
whenever a defendant alleges a Sixth Amendment violation. See also State v. Iniguez, 167
Wash. 2d 273, 280 -81, 217 P.3d 768 ( 2009). We follow Aguirre, recognizing that the Sixth
Amendment right to present a defense does not extend to inadmissible evidence, and we review a
trial court' s ruling on admissibility of evidence for an abuse of discretion.
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Under ER 702, expert testimony must be helpful to the trier of fact to be admissible.
Rafay, 168 Wash. App. at 784. Expert testimony is only helpful if it is relevant. In re Pers.
Restraint of Morris, 176 Wash. 2d 157, 169, 288 P.3d 1140 ( 2012). To be relevant, expert
testimony must have the tendency to make a fact of consequence to the trial' s outcome more or
less probable. ER 401; State v. Atsbeha, 142 Wash. 2d 904, 918, 16 P.3d 626 ( 2001).
McDaniel challenges only the trial court' s exclusion of Detective Ringer' s expert
testimony. Although the trial court stated it would allow McDaniel to testify regarding his
knowledge of Nicolas' s gang involvement, McDaniel did not do so. Thus, he presented no
evidence that Nicholas was a member of a gang generally or of the Hilltop Crips specifically.
Without this evidence, Detective Ringer' s testimony could not make any fact of consequence to
McDaniel' s trial more or less probable. General information about gangs would not make it
more or less likely that McDaniel acted in self -defense when he shot Nicholas. Detective Ringer
could not, and did not plan to, testify about McDaniel' s state of mind or Nicholas' s affiliation
with any gang. His testimony could not make it more or less probable that McDaniel reasonably
feared Nicholas.
Because Detective Ringer' s proposed testimony did not address any specific facts about
McDaniel' s fear of Nicholas, it was irrelevant to McDaniel' s self -defense claim. Therefore, the
trial court did not err in refusing to admit Detective Ringer' s testimony.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, McDaniel argues that his trial counsel was ineffective for failing to object to
damaging propensity evidence. He argues that impeachment evidence against his wife
necessarily informed the jury of an otherwise- inadmissible prior bad act ( that he had shot
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someone in 1996), and that his trial counsel should have objected to the impeachment. We
disagree.
A. Standard ofReview
A claim of ineffective assistance of counsel is a mixed question of law and fact we
review de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 ( 2009). A showing of
ineffective assistance of counsel requires the appellant to demonstrate both that ( 1) his counsel' s
performance was deficient and ( 2) this deficiency prejudiced his case. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Hendrickson, 129 Wash. 2d
61, 77 -78, 917 P.2d 563 ( 1996). The appellant' s failure to establish either prong is fatal to an
ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.
Where the appellant claims ineffective assistance based on his trial counsel' s failure to
object, the appellant must also show that such an objection, if made, would have been successful.
State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 ( 2007). We strongly presume that counsel
was effective. State v. Grier, 171 Wash. 2d 17, 42, 246 P.3d 1260 ( 2011). " To rebut this
presumption, the defendant bears the burden of establishing the absence of any `` conceivable
legitimate tactic explaining counsel' s performance. "' Grier, 171 Wash. 2d at 42 ( quoting State v.
Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 ( 2004)).
B. Trial Counsel Not Deficient
We view trial counsel' s decision of whether and when to object as a " classic example of
trial tactics." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 ( 1989). Counsel is not
deficient for failing to object to a proper proceeding at trial. See Gerdts, 136 Wash. App. at 730.
Only in egregious circumstances, on testimony central to the State' s case, will the failure to
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object constitute incompetence of counsel justifying reversal. ' State v. Johnston, 143 Wash. App.
1, 19, 177 P.3d 1127 ( 2007) ( quoting Madison, 53 Wn. App. at 763). It is a legitimate trial tactic
to forego an objection in circumstances where counsel wishes to avoid highlighting certain
evidence. In re Pers. Restraint ofDavis, 152 Wash. 2d 647, 714, 101 P.3d 1 ( 2004).
On May 15, 2013, the jury heard McDaniel testify that he had been with Angela for 22
years and that their oldest son was 20. Then, on May 20, the State cross -examined Angela about
having witnessed the man she was dating shoot someone in 1996. The State was attempting to
impeach her credibility with this fact, because she had previously testified on redirect
examination that she had never been through an experience like McDaniel shooting Nicholas.
1. Conceivable Trial Tactic
McDaniel argues that his trial counsel was deficient because she failed to object to
impeachment evidence that potentially implicated McDaniel in a shooting from 1996. But there
is a conceivable legitimate trial tactic underlying McDaniel' s counsel' s performance, and so it
was not deficient.
McDaniel argues that the State violated the trial court' s ruling regarding the
impeachment' s scope, a contention we disagree with.8 But even if the prosecutor' s questioning
exceeded the boundaries set by the trial court, McDaniel' s trial counsel would likely have
avoided objecting in front of the jury. To object at that time would have been to call more
8 McDaniel argues that the prosecutor " assured the court he would not elicit testimony that
implicated McDaniel in the prior event, [ but] failed to keep that information from the jury." Br.
of Appellant at 36. But the record shows that the prosecutor diligently kept to the agreed
boundaries of asking Angela whether she had been a witness in an investigation about a shooting
by a man she was dating in 1996, without adding any other information implicating McDaniel.
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attention to Angela' s testimony, which would possibly invite the jury to consider otherwise -
incidental facts with more scrutiny. See Davis, 152 Wash. 2d at 714. Therefore, McDaniel' s trial
counsel' s performance was not deficient for failing to object to the State' s impeachment of
Angela.
2. Objection Would Not Have Been Sustained
Because McDaniel bases his argument on trial counsel' s failure to object, McDaniel must
also show that such an objection would have succeeded had it been made. Gerdts, 136 Wash. App.
at 727. Here, an objection would not have succeeded because the State presented admissible
impeachment evidence.
W]hen a party opens up a subject of inquiry on direct or cross -examination, he
contemplates that the rules will permit cross -examination or redirect examination, as the case
may be, within the scope of the examination in which the subject matter was first introduced."
State v. Gefeller, 76 Wash. 2d 449, 455, 458 P.2d 17 ( 1969). Thus, when a.party opens the door to
impeachment evidence by initiating exploration of a topic, the impeachment evidence is
admissible so long as it is within the scope that was first introduced.
Here, McDaniel opened the door to questioning about Angela' s previous experience with
a man she was romantically involved with shooting someone. McDaniel' s trial counsel elicited
testimony from Angela that she had never been through something like the shooting before, to
explain Angela' s inconsistent memories about the shooting of Nicholas. By introducing the
subject of inquiry whether Angela truly had never been through something like this before,
McDaniel permitted the State to explore and impeach Angela' s response on the same topic.
Therefore, an objection to this line of questioning would not have been sustained, because
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McDaniel opened the door to it and the State' s impeachment evidence was directly within the .
scope of Angela' s earlier statement that she had never been through something like this before.
The State merely showed that she had.
Because there was a conceivable legitimate trial tactic in McDaniel' s trial counsel' s
failure to object during cross -examination, and because such an objection would not have
succeeded, McDaniel cannot overcome the strong presumption that his trial counsel was
effective. State v. McLean, 178 Wn. App. 236, 247, 313 P.3d 1181 ( 2013), review denied, 179
Wash. 2d 1026( 2014).
To conclude, we hold that the felony murder statute is not ambiguous. We further hold
that McDaniel' s equal protection rights were not violated by the breadth of prosecutorial
discretion, the trial court did not violate McDaniel' s right to present a defense when it excluded
expert gang testimony, and McDaniel' s trial counsel was not ineffective. We affirm.
We concur:
A.C.T.
44001416: le
Melnick, J.
4-
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