State Of Washington v. Alexander J. Kitt

Filed
Washington State
Court of Appeals
Division Two
June 18, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49534-1-II
Respondent,
v.
consolidated with
ALEXANDER JABBAAR KITT,
Appellant.
STATE OF WASHINGTON, No. 49555-4-II
Respondent,
v.
and
JERMOHNN ELIJAH NATHANIEL GORE,
Appellant.
STATE OF WASHINGTON, No. 49556-2-II
Respondent,
v.
PUBLISHED IN PART OPINION
CLIFFORD JACARE KRENTKOWSKI,
Appellant.
MELNICK, J. — The State alleged that on May 1, 2015, Alexander Kitt, Jermohnn Gore,
Clifford Krentkowski, and three other men initiated a retaliatory drive-by shooting at a rival gang’s
territory in Tacoma. Law enforcement officers concluded their gunfire struck and killed Brandon
Morris, who was unaffiliated with the rival gang but happened to be in the area. Kitt, Gore, and
Krentkowski were jointly tried and convicted of murder in the first degree and four counts of
49534-1-II / 49555-4-II / 49556-2-II
assault in the first degree. In addition, Kitt and Gore were convicted of unlawful possession of a
firearm in the first degree, and Gore was convicted of intimidating a witness for threats he made
before the trial.
In the published portion of this opinion, we reverse Krentkowski’s conviction because his
trial counsel had an actual conflict of interest that affected the representation, and the trial court
erred by not allowing him to withdraw. In the unpublished portion of this opinion, we affirm the
majority of Kitt’s and Gore’s convictions, but remand for the trial court to dismiss their murder in
the second degree convictions with prejudice, conduct a Miller1 hearing for Gore, and strike
specific legal financial obligations (LFOs) for Kitt and Gore.
FACTS2
I. INCIDENT3
Kitt, Gore, and Krentkowski were all members of the Hilltop Crips street gang.
In the weeks before May 1, LeShaun Alexander, a member of the Knoccout Crips street
gang, shot at some members of the Hilltop Crips, including Krentkowski. On the morning of May
1, Alexander shot at Kitt in the Tacoma Hilltop area outside the home of Trevion Tucker, another
Hilltop Crips member.
A few minutes after the shooting, Gore called Tucker’s house and said he intended to go
look for the shooters. A group gathered in a white Cadillac Escalade, driven by fellow Hilltop
1
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
2
The following facts provide some background information and relate to the published portion of
this opinion. Additional relevant facts will be related in the unpublished portion.
3
Witnesses related the following events at trial.
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Crips member Lance Milton-Ausley. The group included Milton-Ausley, Kitt, Gore,
Krentkowski, and Tucker.
Kitt brought a backpack that contained two handguns. He kept one and gave the other to
Gore. Kitt said he wanted to shoot Alexander. Krentkowski had an AK-47 semiautomatic assault
rifle. The group planned to shoot at a convenience store, known as the “red store,” in Knoccout
territory where Knoccout members were known to gather. They planned to park somewhere near
the store, get out, and shoot at it. They also planned to take pictures of themselves in Knoccout
territory and post them on social media as a sign of disrespect to the rival gang.
As the group approached the red store, they noticed Alexander’s car parked nearby.
Milton-Ausley drove into the alley beside the red store. Alexander and several other Knoccout
members were in a group near the store.
As soon as they pulled into the alley, Gore and Kitt began shooting in the direction of the
store. Each of them fired one of Kitt’s handguns. During the shooting, Milton-Ausley drove
slowly down the alley. He accelerated away when the shooting subsided. Krentkowski had the
assault rifle on his lap but did not shoot. Tucker testified that no one was aiming and none of them
saw anyone get shot; they were “just shooting at the store.” 14 Report of Proceedings (RP) at
2600.
That same day, Morris and four companions were walking in the alley behind the red store.
A bullet fired from the Escalade struck Morris in the head and he died several days later. Another
bullet struck a backpack worn by one of Morris’s companions, but it did not injure him. None of
the Knoccout members near the store was injured.
At the time of the shooting, Kitt was 23 years old, Gore was 16 years old, and Krentkowski
was 17 years old.
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The State charged Kitt, Gore, and Krentkowski each with one count of murder in the first
degree and one count of murder in the second degree for the death of Morris. It also charged each
of them with four counts of assault in the first degree, one for each of Morris’s companions. It
charged Kitt and Gore with unlawful possession of a firearm in the first degree and Gore with
intimidating a witness. The case proceeded to a jury trial.
II. CONFLICT OF INTEREST
At the start of trial, Walter Peale, Krentkowski’s lawyer, informed the court about a conflict
of interest. He stated that he had represented Alexander in an unrelated case, in which the court
had granted Peale’s motion to withdraw based on his representation of Krentkowski. Peale argued
that Krentkowski should be advised about the conflict by an independent counsel before the case
could proceed.
The State argued that there was no actual conflict because Alexander was not involved in
the case other than that his “name may come up.” 1 RP at 10. It explained that it would not be
calling Alexander as a witness, but that the facts involved back-and-forth shootings between the
Hilltop Crips and the Knoccout Crips and that Alexander was a “principal[] on the Knoccoutz
side.” 1 RP at 10.
The court ruled that no conflict existed that required withdrawal. It stated that, “[i]f they’re
totally unrelated matters, the representation of either Mr. Krentkowski or Mr. Alexander is not
directly adverse to the other client.” 1 RP at 31. The court recognized that a conflict would exist
if there was “a significant risk that the representation of one or more clients will be materially
limited by a lawyer’s responsibility to another client, a former client or a third person or by a
personal interest of the lawyer,” but stated that it would “be surprised that a criminal defense
attorney would have such a conflict” and that, even in that case, the rule allowed representation
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“in certain circumstances.” 1 RP at 31-32. The court said Peale could raise the issue again with
additional citation to authority.
Several days later, Peale brought a motion to delay jury selection so that he could withdraw
and Krentkowski could be appointed a new attorney or represent himself. Peale’s motion raised
his lack of preparation, his difficulties with the case, and the conflict of interest. The court denied
the motion and stated that it had already ruled on Peale’s motion to withdraw and substitute
counsel. The court engaged in a colloquy with Krentkowski regarding self-representation. After
conferring with Peale, Krentkowski withdrew his request to represent himself.
Peale raised the conflict of interest issue again the following day, after an independent
counsel had reviewed the situation and opined that Peale had a conflict. The court stated that it
had ruled on the issue and again denied Peale’s motion to withdraw.
During its opening statement, the State told the jury that the evidence would show that
Alexander had shot at Gore and Krentkowski a few days before the red store shooting. Peale then
argued that the State had made Alexander a part of the case, “creat[ing] a relationship that [was]
entirely different” from how the conflict had previously been explained. 4 RP at 710. He argued
that his client was alleged to be the victim of his former client and that a central part of the State’s
case placed his clients at odds with one another, creating a “much greater risk of violating a variety
of rules of professional responsibility.” 4 RP at 711. Peale moved for a mistrial. The court denied
Peale’s mistrial motion and again denied his motion to withdraw.
During witness testimony, Peale raised the issue of his alleged conflict of interest two
additional times. The first time, during Milton-Ausley’s testimony, he stated that the case would
require him to ask,
[W]hat was in the mind of Mr. Alexander? What was his reputation? What was
his character? What do I know about him that would offer up an explanation in
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defense of Mr. Krentkowski? And why am I not pursuing that? And the reason I
can’t pursue it is because he’s a former client.
8 RP at 1471. Peale argued that if evidence about Krentkowski and Alexander’s interactions came
in, he would be unable to respond due to his conflict of interest. The court delayed ruling until
Peale had a chance to interview Tucker about his planned testimony.
After interviewing Tucker, Peale learned that Tucker intended to testify that Alexander was
armed and present at the red store shooting and may have fired at Krentkowski. Peale suggested
that the court exclude evidence of Alexander’s involvement so he could continue representing
Krentkowski despite the conflict. He argued that, otherwise, Tucker’s testimony would “raise[] a
considerable amount of information about [his] former client that in defense of [his] present client
may be relevant to explore which [he couldn’t] explore,” preventing him from presenting a
defense. 13 RP at 2372. The court denied Peale’s motion.
At the conclusion of the trial, the jury returned guilty verdicts as to each count against all
three defendants and found that each defendant was armed with a firearm during the commission
of each murder and assault offense. The defendants appeal.
ANALYSIS
Krentkowski contends that he received ineffective assistance of counsel because the trial
court denied his trial counsel’s motion to withdraw based on a conflict of interest. He argues that,
because an actual conflict of interest existed, we should presume prejudice and reverse his
conviction. We agree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State 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); State v. Grier, 171
Wash. 2d 17, 32, 246 P.3d 1260 (2011).
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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. Grier, 171 Wash. 2d at 32-33; State v. Linville,
191 Wash. 2d 513, 524, 423 P.3d 842 (2018). Representation is deficient if, after considering all the
circumstances, the performance falls “‘below an objective standard of reasonableness.’” Grier,
171 Wash. 2d at 33 (quoting Strickland, 446 U.S. at 688).
Effective assistance of counsel includes a duty of loyalty and a duty to avoid conflicts of
interest. State v. McDonald, 143 Wash. 2d 506, 511, 22 P.3d 791 (2001). To establish a Sixth
Amendment violation based on a conflict of interest, “a defendant must demonstrate that an actual
conflict of interest adversely affected his lawyer’s performance.” State v. Regan, 143 Wash. App.
419, 427, 177 P.3d 783 (2008). This requires the defendant to show “both that his attorney had a
conflict of interest and that the conflict adversely affected counsel’s performance.” State v.
Reeder, 181 Wash. App. 897, 909, 330 P.3d 786 (2014). If the defendant meets this two-part test,
prejudice is presumed. Reeder, 181 Wash. App. at 909.
To show that the conflict adversely affected his lawyer’s performance, the defendant must
show that the conflict either “‘cause[d] some lapse in representation contrary to the defendant’s
interests,’” or “‘likely’ affected particular aspects of counsel’s advocacy on behalf of the
defendant.” Regan, 143 Wash. App. at 428 (quoting State v. Robinson, 79 Wash. App. 386, 395, 902
P.2d 652 (1995) and United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992)). “[T]he
possibility of a conflict [is] not enough to warrant reversal of a conviction.” State v. Dhaliwal, 150
Wash. 2d 559, 573, 79 P.3d 432 (2003).
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We review a trial court’s decision on a motion to substitute counsel for an abuse of
discretion. Reeder, 181 Wash. App. at 908. However, whether the circumstances demonstrate a
conflict under ethical rules is a question of law we review de novo. Regan, 143 Wash. App. at 428.
“An actual conflict of interest exists when a defense attorney owes duties to a party whose
interests are adverse to those of the defendant.” State v. White, 80 Wash. App. 406, 411-12, 907
P.2d 310 (1995). The matters alleged to be in conflict must be “substantially related.” State v.
MacDonald, 122 Wash. App. 804, 813, 95 P.3d 1248 (2004).
RPC 1.7(a) provides that a concurrent conflict of interest exists if “the representation of
one client will be directly adverse to another client” or “there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer’s responsibilities to
another client, a former client or a third person or by a personal interest of the lawyer.” RPC 1.9(c)
prohibits a lawyer who has formerly represented a client from “us[ing] information relating to the
representation to the disadvantage of the former client” except as the ethical rules would permit or
require.
To determine whether an actual conflict exists, the trial court should perform a three-prong
factual inquiry:
“First, the court reconstructs the scope of the facts involved in the former
representation and projects the scope of the facts that will be involved in the second
representation. Second, the court assumes that the lawyer obtained confidential
client information about all facts within the scope of the former representation.
Third, the court then determines whether any factual matter in the former
representation is so similar to any material factual matter in the latter representation
that a lawyer would consider it useful in advancing the interests of the client in the
latter representation.”
MacDonald, 122 Wash. App. at 813 (quoting State v. Hunsaker, 74 Wash. App. 38, 44, 873 P.2d 540
(1994)).
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In White, the defendant’s lawyer had been appointed to represent a codefendant earlier in
the case. 80 Wash. App. at 408-09. He reviewed the first client’s file and police reports and
recommended to the first client’s relative that the first client should consider a guilty plea, but he
never met with the first client. White, 80 Wash. App. at 408-09. Eleven days after his appointment,
the lawyer was replaced. White, 80 Wash. App. at 409. Two weeks later, the court appointed the
lawyer to represent White. White, 80 Wash. App. at 409. Neither party raised the conflict issue until
after trial, when the lawyer noted in an affidavit that the police report from White’s case had
“seemed familiar” but he had not realized he had represented two codefendants until after it was
brought to his attention. White, 80 Wash. App. at 409.
White concluded that the attorney had not “‘actively’ represented conflicting interests”
because he “never directly communicated with [the codefendant]” and was not “privy to any
confidences that could create an active conflict of interest.” 80 Wash. App. at 412. There was
“nothing in the record to support White’s allegation that Appointed Counsel’s allegiance to him
was impaired.” White, 80 Wash. App. at 412.
In MacDonald, the trial court disqualified the defendant’s chosen defense lawyer because
of a conflict of interest. 122 Wash. App. at 812. The disqualified lawyer had represented the victim’s
mother in an unrelated marital dissolution case. MacDonald, 122 Wash. App. at 812. Although the
matters were completely unrelated, the court assumed the lawyer had received confidential
information about the victim in the course of representing her mother. MacDonald, 122 Wash. App.
at 813-14. This information “was relevant to [the victim’s] credibility and, potentially, her current
rape accusation.” MacDonald, 122 Wash. App. at 814. Because the marital dissolution action
“would have necessitated receiving information about” the victim, and her testimony was “the sole
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evidence against” the defendant, a conflict existed and the lawyer could not represent the
defendant. MacDonald, 122 Wash. App. at 814.
In Dhaliwal, the defendant’s lawyer had represented several witnesses who testified at trial.
150 Wash. 2d at 564. The representation of the witnesses occurred both prior to and during the
defendant’s case. Dhaliwal, 150 Wash. 2d at 564-65. The trial court asked the lawyer about his
representation of the witnesses and the lawyer said there was no conflict. Dhaliwal, 150 Wash. 2d at
565. Dhaliwal never objected and he said he wanted the lawyer to continue representing him.
Dhaliwal, 150 Wash. 2d at 565. The other representation involved a shareholder action which may
have been related to the motive for the murder at issue in the case. Dhaliwal, 150 Wash. 2d at 572.
Dhaliwal focused on the lawyer’s actual performance at trial and concluded that Dhaliwal
showed “the possibility that his attorney was representing conflicting interests,” but “failed to
establish an actual conflict because he ha[d] not shown how [his lawyer’s] concurrent
representation of the witnesses . . . affected [his] performance at trial.” 150 Wash. 2d at 573.
Dhaliwal did not show a “strong possibility that a conflict of interest had an effect on [his lawyer’s]
performance.” Dhaliwal, 150 Wash. 2d at 574.
In this case, Peale repeatedly raised a conflict of interest based on his representation of a
rival gang member. Trial testimony established that Alexander had shot at Kitt the morning of the
shooting and had shot at Krentkowski a few weeks prior. Alexander was one of the intended
targets of the red store shooting. Peale said that the State’s case raised a considerable amount of
information about Alexander that may be relevant to his defense of Krentkowski, but that he could
not explore this information because of his ongoing duty to Alexander.
We accept Peale’s representations that he learned confidential information in his
representation of Alexander that he could not use to defend Krentkowski. Although Peale no
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longer represented Alexander at the time of trial, RPC 1.9(c)(1) prohibited him from using any
confidential information he had obtained in his representation of Krentkowski. Peale raised
numerous issues that could have been helpful to his defense of Krentkowski that he could not
explore due to his ongoing duty to Alexander, such as Alexander’s reputation and character and
his relationship to Krentkowski. He was unable to pursue a defense relying on this information
because Alexander was his former client.
This case bears similarities to Dhaliwal, where the attorney represented numerous
witnesses in the case. However, unlike in Dhaliwal, Peale raised the conflict numerous times
before the trial court, repeatedly claiming that an actual conflict existed. Additionally, an
independent counsel spoke with Krentkowski and concluded that Peale had a conflict of interest.
Peale had an actual conflict of interest that affected his defense of Krentkowski. He
repeatedly informed the trial court of this conflict and stated that the conflict would limit his
representation of Krentkowski throughout the trial. We conclude that Krentkowski received
ineffective assistance of counsel. In so ruling, we are mindful that the lawyer made numerous
motions to withdraw due to the conflict, and the court denied all of them. Although Krentkowski
couches his argument as ineffective assistance of counsel, the true error is in the court’s failure to
grant the motions to withdraw. We reverse Krentkowski’s convictions.
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
pursuant to RCW 2.06.040, it is so ordered.
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ADDITIONAL FACTS
I. WITNESS INTIMIDATION
The same juvenile detention facility housed Gore and Tucker pending trial. A no-contact
order prevented Gore from being near Tucker’s cell.
Before trial, Gore sent Tucker a note that said, “Please don’t snitch. Take your statement
back or were [sic] gonna kill your family.” Clerk’s Papers (CP) at 40. The court admitted the note
into evidence and the jury saw it. Immediately after admitting the note, the court read a limiting
instruction to the jury that said,
[E]vidence of an alleged threat allegedly made by Defendant Jermohnn Gore, . . .
[is] being admitted for a limited purpose. Any evidence related to this alleged threat
may only be considered by you as evidence against Jermohnn Gore and may not be
used as evidence against any other defendants, including Alexander Kitt and
Clifford Krentkowski.
12 RP at 2301.
II. JOINDER
The State moved to join Kitt, Gore, Krentkowski, and two other defendants’ cases for trial.
None of the defendants objected to joinder. The court joined the cases.
At the start of trial, the State filed an amended information, charging Gore with the
additional crime of intimidating a witness based on the note he sent to Tucker. Kitt moved for
severance in light of the witness intimidation charges against Gore. He argued that the jury would
interpret the note’s reference to “we” to mean all of the defendants, not just Gore.
The parties and the trial court addressed the motion as a Bruton4 issue, concerning the
admissibility of out-of-court statements by non-testifying codefendants. The State contended that
4
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
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Bruton did not apply and that, to the extent the note prejudiced Kitt, it could be remedied by a
limiting instruction which the court ultimately gave.
The court ruled that the note was not a “testimonial statement” or “confession” by Gore
that implicated either of the other two defendants. It stated that the issue could be dealt with “by
use of a limiting instruction that specifically limit[ed] the use of th[e] note for the purpose of Mr.
Gore’s state of mind” and for the intimidating a witness charge. 2 RP at 252.
At the conclusion of the witness intimidation evidence against Gore, Kitt renewed his
motion to sever and the court again denied it.
III. SUPPRESSION MOTION
Four days after the shooting, Kitt had a scheduled appointment with his probation officer.
Kitt arrived at his appointment in a Cadillac DeVille driven by Gore’s father, Jermaine Gore. Gore
and another man also occupied the DeVille. The police were waiting for Kitt at the appointment
location and arrested him.
The police approached the DeVille, questioned its occupants, and ultimately arrested all of
them and impounded the DeVille.5 The record is unclear as to whether police performed a Terry6
stop of the vehicle or approached the occupants for voluntary questioning. The record does not
clarify on what basis police approached the DeVille, nor whether they had reasonable suspicion or
probable cause of any crime involving the DeVille. Three days after impounding the DeVille,
5
Kitt alleged in an evidence suppression motion that “[w]hen [he] arrived and exited the vehicle
he was immediately arrested as were the passengers and the [vehicle].” CP at 151. Per testimony
at trial, Kitt had left the vehicle and entered the building for his appointment before police
approached the DeVille.
6
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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police acquired a search warrant for it based largely on information obtained from questioning
Gore. The police searched the DeVille and found the guns used in the shooting.
Kitt moved to suppress the seized evidence and Gore and Krentkowski joined his motion.
Kitt argued that, because the police did not have probable cause to arrest him on May 5, the items
seized from the DeVille in the execution of the warrant must be suppressed. He argued that all
evidence seized from the DeVille was fruit of the original unlawful arrest.
The court questioned the relationship between the allegedly unlawful arrest of Kitt and the
search of the DeVille and stated they were “two totally different things.” 2 RP at 274. Kitt
responded that they were related because the police were looking for him and seized the DeVille
as part of his arrest. Kitt claimed that his unlawful arrest led to the seizure, the issuance of the
warrant, and the search of the DeVille.
The court denied the suppression motion, but allowed Kitt to provide additional authority
and explain the connection between Kitt’s arrest and the evidence seized pursuant to the warrant.
The court declined to hold an evidentiary hearing and ordered the State to prepare a written order
setting forth its reasons for doing so. Our record on appeal contains no such order.
In supplemental briefing before the trial court, Kitt did not draw any connection between
Kitt’s allegedly unlawful arrest and the issuance and execution of the warrant for the DeVille.
Rather, Kitt argued that no probable cause existed for his arrest or for seizure of the DeVille and
claimed that, therefore, the evidence later seized pursuant to the warrant must be suppressed. He
argued all evidence seized from the DeVille was fruit of the poisonous tree.
The court again denied Kitt’s motion, concluding that, even if probable cause did not exist
to arrest Kitt, there was no causal relationship between his arrest and the execution of the warrant
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to search the DeVille three days later. It declined to order an evidentiary hearing and did not enter
any written order regarding this ruling.
IV. GANG-AFFILIATION EVIDENCE
The defendants moved to exclude “other bad acts” evidence under ER 404(b), including
evidence of their gang affiliation.
The trial court utilized the four-part test for determining admissibility of ER 404(b)
evidence. It found that the gang evidence had been established by a preponderance of the evidence,
was clearly relevant to prove a motive for the shooting, and explained why the shooting happened.
The court found the evidence explained “why all of those particular people were in that specific
car at the time that the shooting took place.” 2 RP at 226. It concluded the evidence was “clearly
more probative than prejudicial” and allowed its admission. 2 RP at 226.
V. UNLAWFUL FIREARM POSSESSION EVIDENCE
When trial began, the court permitted the State to amend the information to add one count
of unlawful possession of a firearm in the first degree and one count of intimidating a witness
against Gore. Gore asked which firearm he was alleged to have possessed, and the State
responded,
I think counsel is aware that there is evidence that a .40 caliber semiautomatic pistol
and a 9mm semiautomatic pistol were used in this event, and there’s evidence that
an assault rifle was possessed by individuals in the car during the course of this
event, so it would be any one of those three firearms.
2 RP at 264.
At trial, the State presented evidence that two handguns and an assault rifle were in the
Escalade at the time of the shooting. Kitt provided Gore one handgun and kept another for himself,
and they each fired out of the car as they drove past the red store. Krentkowski had the assault
rifle on his lap, but he did not fire it. A witness testified that he had seen Gore with the assault
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rifle in the past. Milton-Ausley testified that, when he picked up Gore and Krentkowski, Gore had
a guitar bag containing the assault rifle.
The State also presented evidence that, when it executed the search warrant on the DeVille,
it recovered a guitar case containing a semiautomatic rifle and three handguns, two of which were
in a backpack. The rifle and the two handguns in the backpack were identical to the types used in
the shooting.
In closing arguments, the State argued that the defendants collectively “had their guns
ready, two firearms in a backpack, an AK-47 . . . in a guitar case.” 18 RP at 3506. The State
emphasized that Gore “had the AK-47. It is not just, [o]h, Mr. Gore walks around town with an
AK-47. . . . It was in a car, in a Cadillac DeVille with his father Jermaine, Sr. with two other
firearms with a backpack a few days after the incident. The AK was in there. The AK was brought
into the Cadillac Escalade that morning for a purpose.” 19 RP at 3661.
VI. EYEWITNESS EVIDENCE
Defense witness Amber Fetcher was in her home near the red store and heard two gunshots
near the time of the shooting. She looked out her window and saw “a blue Corsica with a young
black male hanging out the passenger side window with a gun in his hand” and then heard seven
or eight more gunshots. 17 RP at 3235. She said she did not see any other vehicles or persons
with weapons. She heard many gunshots, but did not see the person in the Corsica fire his weapon.
She could not tell if anyone was firing from the alley.
Fetcher was unable to identify whether a vehicle in security camera footage was the vehicle
she described. She said the Corsica did not enter the alley that the Escalade was alleged to have
shot from, but was near the corner where the alley met the street.
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Morris’s four companions each testified and described the shooter’s vehicle. Three of them
described it as a white sport utility vehicle (SUV). Another described it as an SUV that he at first
thought was white, then “tan-ish silver-ish gold.” 7 RP at 1265. Numerous additional
eyewitnesses identified the shooters’ vehicle as a white SUV.
Security camera evidence showed a white SUV drive down the alley. Forty seconds later,
the same camera showed a blue sedan drive past the alley without turning down it. Another
security camera video showed two Knoccout members near the red store possibly holding weapons
immediately after the shooting.
One of Morris’s companions testified that he heard a single shot before the rapid fire shots
began. He testified he did not know where it came from.
Tucker testified that he saw Alexander and other Knoccout members near the red store, but
did not see guns in their hands and did not see any of them pull out a gun. Milton-Ausley and
Tucker both testified that Gore and Kitt immediately began shooting as soon as they pulled into
the alley. Tucker had told police in an interview that he saw Alexander holding a gun but did not
believe he fired it. Tucker testified that the Knoccout members near the store did not shoot at their
car.
VII. JURY INSTRUCTIONS
Kitt proposed a self-defense jury instruction, arguing that the Knoccout members near the
store had fired first and any shots the defendants fired were in self-defense. His proposed
instruction mimicked WPIC 16.02:7
It is a defense to a charge of murder and/or manslaughter that the homicide
was justifiable as defined in this instruction.
7
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 16.02, at
234 (3d ed. 2008).
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Homicide is justifiable when committed in the lawful defense of the slayer
or another in the slayer’s presence or company when:
1) the slayer reasonably believed that the person slain or others whom the
defendant reasonably believed were acting in concert with the person slain
intended to commit a felony to inflict death or great personal injury;
2) the slayer reasonably believed that there was imminent danger of such
harm being accomplished; and
3) the slayer employed such force and means as a reasonably prudent person
would use under the same or similar conditions as they reasonably appeared
to the slayer, taking into consideration all the facts and circumstances as
they appeared to him or her, at the time of and prior to the incident.
The State has the burden of proving beyond a reasonable doubt that the
homicide was not justifiable. If you find that the State has not proved the absence
of this defense beyond a reasonable doubt, it will be your duty to return a verdict
of not guilty.
CP at 242.
The court stated that the “the only evidence in this entire case that I heard that even comes
remotely close” to showing self-defense was Fetcher’s testimony that she heard two shots, then
saw a blue Corsica driving by the alley with a young black male with a gun hanging out of it. 17
RP at 3462. It noted that this happened “a considerable period of time after the white SUV had
already driven down the alley” and that other testimony suggested that “the first couple of shots
hit the ground and the dirt flew up” when the SUV first entered the alley. 17 RP at 3462.
The court ruled:
I will not be giving an instruction on self defense. First, it is illogical to require the
State to prove the absence of self defense beyond a reasonable doubt but not give
the State notice of such a defense until the end of the fourth week of trial. Second,
there is no credible evidence that the occupants of the Cadillac Escalade reasonably
believed that Brandon Morris, or anyone whom the defendants reasonably believed
were acting in concert with Brandon Morris, intended to inflict death or great
personal injury.
CP at 256.
No party proposed a unanimity instruction requiring the jury to ensure its verdict was
unanimous as to which gun Gore or Kitt possessed for the unlawful possession of a firearm charge.
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VIII. JUROR
After trial, the court presented each juror with a certificate of appreciation. Juror 11 noticed
that the middle initial was incorrect and realized that the summons for jury duty he had received
had been intended for his son. They shared a first and last name. The jury summons included a
first and last name, but did not include a middle initial. Juror 11’s son lived with him at some
point, but at the time of the end of trial, his son had moved to California. The record is unclear as
to whether the son lived with Juror 11 at the time Juror 11 received the summons.
Kitt moved for a new trial on the basis of an unconstitutional volunteer juror. Gore and
Krentkowski joined in Kitt’s motion. After a fact-finding hearing, the trial court found that Juror
11 received a summons and had no reason to believe it was not intended for him, as the summons
did not include a middle initial. It stated that Juror 11 was “certainly inquired of during the voir
dire process” and “otherwise qualifie[d] to be a juror.” RP (sentencing) at 103. The court
concluded there had not been any juror misconduct and, if there had been, that it would not have
changed the outcome. It denied the motion for a new trial.
IX. SENTENCE
The court dismissed the guilty verdicts for murder in the second degree as to each defendant
without prejudice, citing double jeopardy concerns. At sentencing, Kitt objected to this action and
requested that these counts be dismissed with prejudice. The court noted the objection but did not
respond to it.
A. KITT
The court sentenced Kitt to a standard-range sentence of 338 months for the murder, 93
months on each assault, and 77 months for unlawful possession of a firearm. It additionally
sentenced him to 60 months on each firearm enhancement. The court ordered that each of the
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murder and assault counts, as well as their firearm enhancements, would run consecutively for a
total sentence of 1,010 months.
The court found Kitt indigent, waived discretionary fines and costs, and imposed a $500
crime victim assessment, a $200 criminal filing fee, and a $100 DNA (Deoxyribonucleic acid)
collection fee.
Kitt was 23 years old at the time of the murder and the court did not discuss or address his
youthfulness.
B. GORE
Gore was 16 years old at the time of the murder. Gore raised his youthfulness as a factor
to be considered in his sentence and requested that “the juvenile mind development” be taken into
consideration. RP (sentencing) at 162. He did not specifically request a downward departure on
that basis. The State cited Miller v. Alabama8 and the Miller-fix9 statute and stated that Gore
would be eligible for early release in 20 years, regardless of the sentence the court imposed.
The court noted that criminal sentences for juveniles are more intended to “hopefully
reform people” but stated that “there’s a reason why we decline youth at a certain age with a certain
charge and treat them as adults despite the whole issue with the lack of full brain development.”
RP (sentencing) at 169. It stated that it did not see Gore’s youthfulness as a basis to differentiate
Gore from Kitt and imposed an equivalent sentence, taking into account the differences in Kitt’s
and Gore’s criminal histories and standard ranges.
The court sentenced Gore to a standard-range sentence of 312 months for the murder, 93
months for each assault, 77 months for the unlawful possession of a firearm, and 67 months for
8
567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
9
RCW 10.95.030.
20
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intimidating a witness. It ran the murder and assault sentences consecutive and consecutive to the
five 60-month firearm enhancements for a total sentence of 984 months.
The court found that Gore was indigent and waived discretionary costs, but assessed a $500
victim assessment, a $200 criminal filing fee, and a $100 DNA collection fee.
ANALYSIS10
I. SUFFICIENCY OF EVIDENCE – ASSAULT
The defendants contend that the State failed to prove beyond a reasonable doubt that they
intended to cause anyone great bodily harm. They claim that sufficient evidence does not support
the four convictions of assault in the first degree. We disagree.
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). 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.’” State v. Homan, 181 Wash. 2d 102, 106,
330 P.3d 182 (2014) (quoting State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992)).
To convict the defendants of assault in the first degree, the jury had to find beyond a
reasonable doubt:
(1) That on or about May 1, 2015, defendant [individual defendant] or an
accomplice assaulted [victim];
(2) That the assault was committed with a firearm;
10
We reversed Krentkowski’s conviction in the published portion of this opinion, but must still
decide whether sufficient evidence supports his conviction. The unpublished portion of our
analysis applies primarily to Kitt and Gore, but the sufficiency of the evidence analysis applies to
Krentkowski as well.
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(3) That defendant [individual defendant] or an accomplice acted with intent
to inflict great bodily harm; and
(4) That this act occurred in the State of Washington.
CP at 334-45; RCW 9A.36.011. The State charged each defendant with four counts of assault in
the first degree, one for each of Morris’s companions. The defendants contend that the State failed
to present sufficient evidence as to the third element, that they “acted with intent to inflict great
bodily harm.”
“Assault in the first degree requires a specific intent; but it does not, under all
circumstances, require that the specific intent match a specific victim.” State v. Wilson, 125 Wash. 2d
212, 218, 883 P.2d 320 (1994). Once intent to inflict great bodily harm is established, the mens
rea may be transferred to any unintended victim. State v. Elmi, 166 Wash. 2d 209, 218, 207 P.3d 439
(2009).
The evidence showed that the defendants traveled to the red store with the intent to either
disrespect their rival gang by taking pictures of their territory, or to shoot at them in retaliation for
other recent shootings. It further showed that Kitt and Gore both fired handguns repeatedly toward
the red store and a group of rival gang members as Milton-Ausley drove past. Krentkowski sat in
the car with an assault rifle on his lap and took part in planning the assault.
A fellow gang member who was with the defendants at the time of the shooting testified
that they were looking for the car that had shot at them that morning to “shoot at them” because
“they keep shooting at us.” 13 RP at 2440. The same person also testified that they shot at the
store without aiming. Another gang member testified that Kitt said he wanted to shoot Alexander.
In a sufficiency of evidence challenge, we draw all reasonable inferences in favor of the
State. Where the State produced evidence that the defendants planned to shoot at their gang rivals
and did shoot at them as they drove past, a reasonable juror could infer that the defendants intended
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to inflict great bodily harm. This intent to inflict great bodily harm may then be transferred to the
victims. Sufficient evidence supports the convictions for assault in the first degree.
II. GANG AFFILIATION EVIDENCE
The defendants contend that the trial court erred by admitting evidence of their gang
affiliation. They claim that the trial court abused its discretion by admitting the evidence in this
case because the State failed to show a nexus between the gang evidence and the crime. We
disagree.
ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
“If the evidence is admissible for one of these purposes, a trial judge must determine whether the
danger of undue prejudice from its admission outweighs the probative value of the evidence.”
State v. Jackson, 102 Wash. 2d 689, 693, 689 P.3d 76 (1984).
We review a “trial court’s decision to admit or deny evidence of a defendant’s past crimes
or bad acts under ER 404(b) for an abuse of discretion.” State v. Fuller, 169 Wash. App. 797, 828,
282 P.3d 126 (2012). “A trial court abuses its discretion by not following the requirements of ER
404(b) in admitting evidence of a defendant’s prior convictions or past acts.” Fuller, 169 Wn.
App. at 828. A trial court also abuses its discretion if its decision is manifestly unreasonable,
meaning it falls outside the range of acceptable choices, given the facts and the applicable legal
standard, its decision is based on untenable grounds, meaning its factual findings are unsupported
by the record, or its decision is ‘based on untenable reasons, meaning it applied an incorrect legal
standard. State v. Dye, 178 Wash. 2d 541, 548, 309 P.3d 1192 (2013).
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When a trial court admits evidence under ER 404(b), it must “‘(1) find by a preponderance
of the evidence the misconduct actually occurred, (2) identify the purpose of admitting the
evidence, (3) determine the relevance of the evidence to prove an element of the crime, and (4)
weigh the probative value against the prejudicial effect of the evidence.’” Fuller, 169 Wash. App.
at 828-29 (quoting State v. Fisher, 165 Wash. 2d 727, 745, 202 P.3d 937 (2009)).
“Like membership in a church, social club, or community organization, affiliation with a
gang is protected by our First Amendment right of association. Therefore, evidence of criminal
street gang affiliation is not admissible in a criminal trial when it merely reflects a person’s beliefs
or associations.” State v. Scott, 151 Wash. App. 520, 526, 213 P.3d 71 (2009) (internal citation
omitted). “There must be a connection between the crime and the organization before the evidence
becomes relevant.” Scott, 151 Wash. App. at 526.
However, “[c]ourts have regularly admitted gang affiliation evidence to establish the
motive for a crime or to show that defendants were acting in concert.” Scott, 151 Wash. App. at 527.
When there is a “connection between the gang’s purposes or values and the offense committed,”
the evidence is admissible, whereas “when there [is] no connection between a defendant’s gang
affiliation and the charged offense,” admission of gang evidence is prejudicial error. Scott, 151
Wash. App. at 527.
In this case, the trial court stated the evidence was relevant “for purposes of motive, why
this happened, and why all of those particular people were in that specific car at the time that the
shooting took place.” 2 RP at 226. The court balanced on the record the prejudicial effect of the
evidence against its probative value, and ruled that it was clearly more probative than prejudicial.
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The evidence showed that Alexander, a Knoccout, shot at Kitt, Krentkowski, Tucker, and
other Hilltop Crips multiple times in the weeks leading up to the crime. The defendants traveled
to the red store, located in Knoccout territory, to either shoot at them or take pictures of their
territory as a sign of disrespect. Kitt and Gore began shooting at the red store when they saw
Alexander’s car parked there and Alexander and other Knoccout members outside the store.
The gang affiliation evidence was relevant to explain the motive for the shooting, the
rivalry between the defendants and their intended targets, and the facts that led up to the shooting.
The evidence in this case demonstrated a “connection between the gang’s purposes or values and
the offense committed.” Scott, 151 Wash. App. at 527. The trial court did not abuse its discretion
by concluding that the gang affiliation evidence was more probative than prejudicial in this case.
III. JUROR
The defendants contend that the court’s seating of Juror 11, who had responded to his son’s
summons for jury duty, created a “volunteer juror” which destroyed the randomness of the jury
selection process in violation of Washington’s jury selection statute. Br. of Appellant (Kitt) at 23.
They claim that, because the error in this case created a “material departure” from Washington’s
juror selection statute, prejudice should be presumed and their convictions should be overturned.
Br. of Appellant (Kitt) at 28. We disagree.
“The purpose of article I, section 22 of the Washington State Constitution is to guarantee
a fair and random selection of jurors from the county in which a crime is alleged to have been
committed.” City of Tukwila v. Garrett, 165 Wash. 2d 152, 155, 196 P.3d 681 (2008). RCW
2.36.080(1) provides that “all persons selected for jury service be selected at random from a fair
cross section of the population of the area served by the court.” “A randomly selected jury is a
25
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right provided by statute and is based on the Legislature’s policy of providing an impartial jury.”
State v. Tingdale, 117 Wash. 2d 595, 600, 817 P.2d 850 (1991).
A person is competent to be a juror in Washington unless he or she (1) is less than eighteen
years old, (2) is not a citizen of the United States, (3) is not a resident of the county, (4) is unable
to communicate in English, or (5) has been convicted of a felony and not had civil rights restored.
RCW 2.36.070.
The statutory requirements for making jury lists are “merely directory and need be only
substantially complied with.” Garrett, 165 Wash. 2d at 159. “As long as the method chosen
preserves the element of chance in selection of the panel, it has been found to be proper.” Tingdale,
117 Wash. 2d at 600. Where the trial court substantially complies with the applicable statutes, the
defendant must show prejudice. Tingdale, 117 Wash. 2d at 600. However, if the trial court materially
departs from the statutes, prejudice is presumed. Tingdale, 117 Wash. 2d at 600.
The trial court may grant a new trial on the basis of “[m]isconduct of the prosecution or
jury” or “[i]rregularity in the proceedings of the court, jury or prosecution.” CrR 7.5(a). We
review a trial court’s ruling on a motion for a new trial based on juror misconduct for an abuse of
discretion. State v. Gaines, 194 Wash. App. 892, 896, 380 P.3d 540 (2016).
In this case, Juror 11 responded to a jury summons intended for his son, with whom he had
recently lived. They shared a first and last name. The jury summons did not include a middle
initial, preventing Juror 11 from knowing to whom the summons was directed. Juror 11 realized
that the summons had been intended for his son only after the trial, when the court provided him
with a certificate of appreciation that included a middle initial.
26
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The trial court found that Juror 11 had “no reason to believe” that the summons was not
directed to him. RP (sentencing) at 103. Juror 11 was “inquired of during the voir dire process”
and was “otherwise qualifie[d] to be a juror.” RP (sentencing) at 103. The court ruled that Juror
11 had not committed juror misconduct and that it saw no reason to set aside the jury verdict and
grant a new trial.
Kitt characterizes Juror 11 as a “volunteer juror” which is prohibited by RCW 2.36.080’s
requirement that jurors be selected randomly. However, Juror 11 did not “volunteer” to sit on the
jury; he believed he was responding to a jury summons. Under the circumstances of this case, that
belief was reasonable. The court sent the summons to his address. No further identifying
information other than a first and last name appeared on the summons. Additionally, nobody
questioned Juror 11’s competency to sit as a juror under RCW 2.36.070. Nothing suggests Juror
11 committed any misconduct, or that the County erred in following procedures for assembling a
valid jury pool. The procedures in this case “preserve[d] the element of chance in selection of the
panel.” Tingdale, 117 Wash. 2d at 600. The trial court did not abuse its discretion by denying a new
trial on this issue.
IV. VEHICLE SEIZURE
The defendants contend that police did not have probable cause to seize the DeVille in
which Kitt arrived for his probation appointment four days after the shooting. They claim that,
because police lacked probable cause for the seizure, all evidence taken from the DeVille should
have been suppressed. They also contend that the trial court erred by failing to hold an evidentiary
27
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hearing on this issue and failing to explain its reasons for not holding an evidentiary hearing in
writing. Given the inadequacies in the record, we are unable to effectively review this issue. 11
When a trial court receives a motion to suppress evidence, it must determine whether an
evidentiary hearing is required. CrR 3.6(a). If it determines that no evidentiary hearing is required,
it must “enter a written order setting forth its reasons.” CrR 3.6(a).
If law enforcement has probable cause to search a vehicle, it may seize it and deny access
to it for a reasonable time while obtaining a search warrant. State v. Campbell, 166 Wash. App. 464,
472, 272 P.3d 859 (2011). To seize a vehicle under this exception, police must “have probable
cause to believe it contains contraband or evidence of a crime.” State v. Houser, 95 Wash. 2d 143,
149, 622 P.2d 1218 (1980).
Kitt moved to suppress evidence stemming from his allegedly unlawful arrest. His
arguments focused on whether probable cause supported his arrest and he did not explain the
connection between that arrest and the seizure of the DeVille.12
The trial court did not hold an evidentiary hearing because it believed it could deny Kitt’s
suppression motion on a purely legal issue. It concluded that any evidence seized from the DeVille
was seized pursuant to a valid and unchallenged warrant because the defense had not shown any
connection between Kitt’s arrest and the issuance of the warrant. Any deficiencies in the probable
cause for Kitt’s arrest were unrelated to evidence seized from the DeVille pursuant to the
unchallenged warrant.
11
Because review of this issue would necessitate consideration of facts outside the record, the
appropriate means of review would be through a personal restraint petition. State v. McFarland,
127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
12
Kitt argued that the DeVille’s seizure was incident to Kitt’s unlawful arrest, but this argument
appears factually inaccurate because Kitt was neither near the DeVille when he was arrested nor
when police first approached the DeVille.
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Now, on appeal, Gore’s suppression arguments focus exclusively on an alleged stop and
subsequent impoundment of the DeVille prior to police obtaining the search warrant. Without an
evidentiary hearing or written order, the record is insufficient for us to determine the legality of
the officers’ interaction with the DeVille and its occupants. The record contains no facts
explaining what led police to approach the DeVille, or on what basis they had it impounded
pending the search warrant. The record does not contain these facts because the theory of
suppression argued on appeal is distinctly different from the one argued at trial.
The trial court in this case erred by failing to enter a written order stating its reasons for
denying an evidentiary hearing. We are unable to review the present issue because the parties did
not argue it below and the record provides no detail about the officers’ bases for the initial stop or
impoundment of the DeVille.
V. UNANIMOUS JURY VERDICT
Gore contends that his right to a unanimous jury verdict was violated as to his unlawful
possession of a firearm conviction. He claims that the State presented evidence that he possessed
multiple firearms and the court did not provide a unanimity instruction, such that different jurors
could have voted to convict based on Gore’s possession of different firearms.13 We disagree.
“In Washington, a defendant may be convicted only when a unanimous jury concludes that
the criminal act charged in the information has been committed.” State v. Petrich, 101 Wash. 2d 566,
569, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wash. 2d 403,
756 P.2d 105 (1988), abrogated in part on other grounds by In re Pers. Restraint of Stockwell,
179 Wash. 2d 588, 316 P.3d 1007 (2014). “When the evidence indicates that several distinct criminal
13
Kitt adopts this argument as well. However, Gore’s arguments on this issue are factually specific
to him and make little sense as applied to Kitt. We address this argument as to Gore only.
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acts have been committed, but [the] defendant is charged with only one count of criminal conduct,
jury unanimity must be protected.” Petrich, 101 Wash. 2d at 572. In order to protect jury unanimity,
the State must either identify one specific act it intends to rely on as the crime charged, or the court
must give the jury a Petrich instruction, “explaining that all ‘12 jurors must agree that the same
underlying criminal act has been proved beyond a reasonable doubt.’” State v. McNearney, 193
Wash. App. 136, 140, 373 P.3d 265 (2016) (quoting Petrich, 101 Wash. 2d at 572). “‘[F]ailure to
follow one of these options is error, violative of a defendant’s state constitutional right to a
unanimous jury verdict and United States constitutional right to a jury trial.’” McNearney, 193
Wash. App. at 140-41 (quoting Kitchen, 110 Wash. 2d at 409).
Failure to give a unanimity jury instruction is a manifest constitutional error that may be
raised for the first time on appeal. State v. Moultrie, 143 Wash. App. 387, 392, 177 P.3d 776 (2008).
“A multiple acts unanimity instruction is not required when the State presents evidence of
multiple acts that indicate a ‘continuing course of conduct.’” State v. Locke, 175 Wash. App. 779,
803, 307 P.3d 771 (2013) (quoting State v. Crane, 116 Wash. 2d 315, 326, 804 P.2d 10 (1991)). “‘A
continuing course of conduct requires an ongoing enterprise with a single objective.’ To determine
whether multiple acts constitute a continuing course of conduct, we evaluate the facts in a
commonsense manner.” Locke, 175 Wash. App. at 803 (internal citation omitted) (quoting State v.
Love, 80 Wash. App. 357, 361, 908 P.2d 395 (1996)).
“Washington courts have found a continuing course of conduct in cases where multiple
acts of the charged crime were committed with a single purpose against one victim in a short period
of time.” Locke, 175 Wash. App. at 803.
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In Love, police found drugs on the defendant’s person, then executed a search warrant at
his residence and found additional drugs, guns, a large sum of money, and other drug delivery
paraphernalia. 80 Wash. App. at 359. The State charged Love with one count of possession of a
controlled substance with intent to deliver. Love, 80 Wash. App. at 358. On appeal, Love argued
that the jury should have received a unanimity instruction, because of the distinct drugs found on
his person and those found at his residence. Love, 80 Wash. App. at 360.
The court concluded that no unanimity instruction was required because Love’s possession
of the drugs on his person and at his residence reflected “his single objective to make money by
trafficking cocaine; thus, both instances of possession constituted a continuous course of conduct.”
Love, 80 Wash. App. at 362.
In State v. King, however, the State charged King with one count of possession of a
controlled substance for drugs found both in a vehicle in which King had ridden, and found on his
person in a fanny pack. 75 Wash. App. 899, 901, 878 P.2d 466 (1994). The court concluded that
the evidence showed “two distinct instances of cocaine possession occurring at different times, in
different places, and involving two different containers—the Tylenol bottle [found in the vehicle]
and the fanny pack. One alleged possession was constructive, the other actual.” King, 75 Wn.
App. at 903. The court reversed King’s conviction because the trial court had failed to provide the
jury with a unanimity instruction. King, 75 Wash. App. at 904.
Love distinguished King on the basis that a rational juror could have believed either that
King possessed the cocaine found on his person but the driver possessed the cocaine found in the
car, or that King possessed the cocaine found in the car, but police planted the cocaine on his
person, as King presented evidence as to both of these defenses. 80 Wash. App. at 363. Love,
however, did not provide distinct defenses to the different cocaine stashes found on his person and
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49534-1-II / 49555-4-II / 49556-2-II
in his residence; he contended that all of it had been planted by the police, leaving the jury “no
rational basis to conclude that Love possessed the cocaine found on his person for personal use,
and that found at the residence with intent to deliver.” Love, 80 Wash. App. at 363.
In State v. Furseth, 156 Wash. App. 516, 518, 233 P.3d 902 (2010), the State charged Furseth
with one count of possessing child pornography. The State produced evidence that Furseth had
possessed multiple specific images and Furseth argued that he was entitled to a unanimity
instruction because the jurors, in finding him guilty, could have found he had possessed different
images and not been unanimous on the verdict. Furseth, 156 Wash. App. at 519. The court looked
to State v. Sutherby, 165 Wash. 2d 870, 204 P.3d 916 (2009), which held that the unit of prosecution
for child pornography was each “possession” of child pornography, without regard to the number
of individual images possessed or the number of minors depicted. Furseth, 156 Wash. App. at 520-
21. The court ruled that the State had alleged only one “possession” of child pornography, making
the case “significantly different from prosecutions held to constitute multiple acts cases.” Furseth,
156 Wash. App. at 522. The court did not discuss the continuing course of conduct exception.
To prove that Gore unlawfully possessed a firearm in the first degree, the State had to prove
that Gore “ha[d] previously been convicted of a serious offense and knowingly own[ed] or ha[d]
in his possession or control any firearm.” CP at 361; RCW 9.41.040(1)(a). Unlawful possession
of a firearm is a “course of conduct’ rather than a discrete act because that behavior takes place
over a period of time rather than at one distinct moment.” State v. Kenyon, 150 Wash. App. 826,
834, 208 P.3d 1291 (2009). Because unlawful possession of a firearm is a “course of conduct, . .
. interruption in possession of a particular firearm may result in different ‘possessions.’” State v.
Mata, 180 Wash. App. 108, 120, 321 P.3d 291 (2014).
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In this case, the State presented evidence that Gore had the guitar bag containing the assault
rifle when Milton-Ausley picked him up. It also presented evidence that he fired one of Kitt’s two
handguns during the shooting at the red store.
The State charged Gore with a single count of unlawful possession of a firearm, despite
evidence tying Gore to two distinct firearms. It presented evidence of Gore’s “single objective”
to shoot at gang rivals and how possession of either firearm would advance that ultimate goal,
suggesting that the possession charge presented a continuous course of conduct rendering a
unanimity instruction unnecessary. The State charged only one count of unlawful possession
because the unit of prosecution for unlawful possession of a firearm is based on “course of
conduct” rather than individual firearms.
Gore did not present distinct defenses to the two firearms. In fact, his defense counsel
admitted in closing that Gore had possessed the assault rifle, and focused the defense on the murder
and assault charges.
No unanimity instruction was required because the State alleged a single course of conduct
in which Gore unlawfully possessed a firearm.
VI. AUTOMATIC DECLINE FROM JUVENILE COURT
Gore claims he was denied due process by his automatic decline from juvenile court.14 He
claims the statute providing for automatic decline of juvenile court jurisdiction for 16- and 17-
year-olds that commit serious violent offenses is facially unconstitutional. We disagree.
14
This argument appears in Krentkowski’s brief, but we do not address it as to him because we
reverse his conviction in the published portion of this opinion. Kitt and Gore join this argument,
however we address it only at to Gore because Kitt was older than 18 at the time of the offense.
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Since the parties filed their briefs in this case, the Supreme Court decided State v. Watkins,
191 Wash. 2d 530, 423 P.3d 830 (2018). The defendant in Watkins made an identical argument to
the one Gore makes in this case. 191 Wash. 2d at 533. The court ruled that there is “no constitutional
right to be tried in juvenile court and, hence, no constitutional right to a [decline] hearing before
being tried in adult court.” Watkins, 191 Wash. 2d at 536. We follow Watkins and conclude that
Gore had no due process right to have his case heard in juvenile court or to have a hearing for the
juvenile court to decline jurisdiction.
VII. DOUBLE JEOPARDY
The defendants contend that the trial court violated their double jeopardy rights when it
dismissed their murder in the second degree convictions without prejudice. We agree.
“The United States Constitution provides that a person may not be subject ‘for the same
offense to be twice put in jeopardy of life or limb.’” State v. Chouap, 170 Wash. App. 114, 122, 285
P.3d 138 (2012) (quoting U.S. CONST. amend. V). “Similarly, the Washington Constitution
provides that a person may not be put in jeopardy twice for the same offense.” Chouap, 170 Wn.
App. at 122 (citing WASH. CONST. art. I, § 9). We review double jeopardy claims de novo. State
v. Kelley, 168 Wash. 2d 72, 76, 226 P.3d 773 (2010).
Double jeopardy prohibits “(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction, and (3) multiple punishments for
the same offense imposed in the same proceeding.” In re Pers. Restraint of Percer, 150 Wash. 2d
41, 48-49, 75 P.3d 488 (2003).
RCW 10.43.050 provides that defendants convicted or acquitted upon an information
“charging a crime consisting of different degrees . . . cannot be proceeded against or tried for the
same crime in another degree, nor for an attempt to commit such crime, or any degree thereof.”
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Courts may not “enter multiple convictions for the same offense without offending double
jeopardy.” State v. Womac, 160 Wash. 2d 643, 658, 160 P.3d 40 (2007). In Womac, a jury convicted
the defendant of homicide by abuse, felony murder in the second degree, and assault in the first
degree, all with the same victim. 160 Wash. 2d at 647. The trial court entered judgment on all three
convictions, denied Womac’s motion to dismiss the latter two counts and left both on his record,
merely declining to impose sentences on them. Womac, 160 Wash. 2d at 648-49. The Supreme
Court held that this practice violated double jeopardy because, although he did not receive
sentences on the latter two convictions, “he still suffer[ed] the punitive consequences of his
convictions,” such as an increased offender score in future prosecutions. Womac, 160 Wash. 2d at
656.
In State v. Turner, the trial court conditionally vacated the lesser included crimes of two
defendants, but specifically identified them as valid convictions on which the defendant could still
be sentenced in the event the greater convictions were reversed on appeal. 169 Wash. 2d 448, 452-
53, 238 P.3d 461 (2010). This was not problematic under Womac because the lesser included
crimes were not reduced to judgment and did not appear in the defendants records. Turner, 169
Wash. 2d at 462-63.
Turner concluded that “a court may violate double jeopardy either by reducing to judgment
both the greater and the lesser of two convictions for the same offense or by conditionally vacating
the lesser conviction while directing, in some form or another, that the conviction nonetheless
remains valid.” 169 Wash. 2d at 464. It held that “a judgment and sentence must not include any
reference to the vacated conviction—nor may an order appended thereto include such a reference;
similarly, no reference should be made to the vacated conviction at sentencing.” Turner, 169
Wash. 2d at 464-65.
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In this case, the trial court vacated all three defendants’ lesser-included convictions for
murder in the second degree without prejudice. Kitt objected to this procedure and requested these
counts be dismissed with prejudice. The court noted the objection for the record but did not
respond to it.
Unlike Womac and Turner, where the trial court maintained the lesser included conviction
contingent upon reversal of the greater conviction on appeal, the court in this case actually
dismissed the lesser included convictions. However, because it dismissed them without prejudice,
it left the State free to bring additional charges for murder in the second degree in the future.
Double jeopardy prohibits a second prosecution for the same crime. The trial court erred by
dismissing the murder in the second degree counts without prejudice.
VIII. MILLER HEARING
Gore contends that the trial court erred in sentencing him because it failed to take account
of his youthfulness pursuant to recent Supreme Court cases concerning sentencing of juveniles.
See, e.g., State v. Ramos, 187 Wash. 2d 420, 387 P.3d 650 (2017); State v. Houston-Sconiers, 188
Wash. 2d 1, 391 P.3d 409 (2017); State v. Bassett, 192 Wash. 2d 67, 428 P.3d 343 (2018). The State
concedes that, due to developments in the law since Gore was sentenced, his case must be
remanded for resentencing. We accept the State’s concession and remand for a Miller hearing.
Washington has “consistently applied the Miller principle that ‘children are different.’”
Bassett, 192 Wash. 2d at 81 (quoting Miller v. Alabama, 567 U.S 460, 481, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012)). Miller requires that “a life-without-parole sentence cannot be imposed on a
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juvenile homicide offender whose crimes reflect transient immaturity.” Ramos, 187 Wash. 2d at 436.
Therefore, “where a juvenile offender facing a standard range life-without-parole sentence proves
that his or her crimes reflect transient immaturity, the juvenile has necessarily proved that there
are substantial and compelling reasons for an exceptional sentence downward.” Ramos, 187
Wash. 2d at 436.
A Miller hearing “is not an ordinary sentencing proceeding.” Ramos, 187 Wash. 2d at 443.
“Miller ‘establishes an affirmative requirement that courts fully explore the impact of the
defendant’s juvenility on the sentence rendered.’” Ramos, 187 Wash. 2d at 443 (quoting Aiken v.
Byars, 410 S.C. 534, 543, 765 S.E.2d 572 (2014)). Accordingly, a Miller hearing must “do far
more than simply recite the differences between juveniles and adults and make conclusory
statements that the offender has not shown an exceptional downward sentence is justified.”
Ramos, 187 Wash. 2d at 443. In a proper Miller hearing, a trial court must
receive and consider relevant mitigation evidence bearing on the circumstances of
the offense and the culpability of the offender, including both expert and lay
testimony as appropriate. The court and counsel have an affirmative duty to ensure
that proper consideration is given to the juvenile’s ‘chronological age and its
hallmark features—among them, immaturity, impetuosity, and failure to appreciate
risks and consequences.’ It is also necessary to consider the juvenile’s ‘family and
home environment’ and ‘the circumstances of the homicide offense, including the
extent of his participation in the conduct and the way familial and peer pressures
may have affected him.’ And where appropriate, the court should account for
‘incompetencies associated with youth’ that may have had an impact on the
proceedings, such as the juvenile’s ‘inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys.
Ramos, 187 Wash. 2d at 443-44 (internal citations omitted) (quoting Miller, 567 U.S. at 477). A
juvenile “cannot forfeit his or her right to a Miller hearing merely by failing to affirmatively request
it, and all doubts should always be resolved in favor of holding a Miller hearing.” Ramos, 187
Wash. 2d at 443.
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Ramos imposed the requirement of a Miller hearing in a case where the defendant was
sentenced to a “de facto” life sentence of four consecutive sentences, totaling 85 years with no
provision of law providing a possibility of parole. 187 Wash. 2d at 437. “Miller’s reasoning clearly
shows that it applies to any juvenile homicide offender who might be sentenced to die in prison
without a meaningful opportunity to gain early release based on demonstrated rehabilitation.”
Ramos, 187 Wash. 2d at 438.
Bassett held that sentencing juvenile offenders to life without parole or early release always
constitutes cruel punishment in violation of article I, section 14 of the Washington Constitution.
192 Wash. 2d at 91.
Gore was a juvenile at the time of his crimes. Gore raised his youthfulness as a mitigating
factor at his sentencing hearing and the trial court stated that it did not see Gore’s youthfulness as
a basis to differentiate his sentence from Kitt’s. The trial court did not specifically consider any
of the various factors the Supreme Court discussed as necessities for a Miller hearing in Ramos,
such as Gore’s immaturity, impetuosity, failure to appreciate risks and consequences, Gore’s
family and home environment, the extent of Gore’s participation in the crime, peer pressures, or
Gore’s abilities to assist his counsel at trial. The court then sentenced Gore to a standard range
sentence of 82 years in prison, a de-facto life sentence. Gore’s situation is near identical to that of
the defendant in Ramos except he did not receive a Miller hearing equivalent to that the court
stated was required in that case.
IX. LEGAL FINANCIAL OBLIGATIONS
Kitt and Gore contend that the court erred by including a $200 criminal filing fee and a
$100 DNA collection fee in their sentences. We agree.
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While this case was pending appeal, the legislature modified Washington’s LFO system.
Among other changes, it eliminated interest accrual on non-restitution LFOs, made the DNA
database fee non-mandatory for offenders whose DNA had already been collected due to a prior
conviction, and prohibited the $200 filing fee and discretionary costs on indigent defendants. State
v. Ramirez, 191 Wash. 2d 732, 747, 426 P.3d 714 (2018); RCW 10.01.160; RCW 10.82.090(1); RCW
36.18.020(2)(h); RCW 43.43.7541; LAWS OF 2018, ch. 269, §§ 1, 6, 17, 18. The amendments
apply to cases on appeal when they took effect on June 7, 2018, because those cases were not final.
Ramirez, 191 Wash. 2d at 738, 747.
SAG ANALYSIS
I. GORE SAG15
A. FINGERPRINT EVIDENCE
Gore contends in his SAG that his attorney did not argue that his handprints and
fingerprints were not found on the guns or the vehicle involved in the shooting. He argues that he
is “currently serving time for a charge but [his] fingerprints were not on any evidence that the law
charged [him] with in this case.” SAG (Gore) at 1.
We interpret Gore’s first argument as an ineffective assistance of counsel claim for his trial
counsel’s failure to argue about the lack of fingerprint evidence in the case. We apply the same
standard of review for ineffective assistance of counsel in a SAG as we did above. Prejudice exists
if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings
would have differed. Grier, 171 Wash. 2d at 34.
15
In addition to the arguments discussed below, Gore contends that he was “brought to jail with
no additional warrants” and was “being investigated with a charge that had nothing to do with this
case and . . . was detained when they did the illegal search.” SAG (Gore) at 1. This argument
does not inform this court of the nature or occurrence of any particular error. RAP 10.10(c). We
do not respond to this argument.
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The trial in this case lasted more than three weeks and included testimony of more than 40
witnesses. Although fingerprint evidence on the guns may have implicated Gore further, lack of
fingerprint evidence does not prove that Gore did not possess one of the handguns. The lawyer
was not deficient for failing to make this argument. Additionally, Gore has not shown that, had
his attorney mentioned the lack of fingerprint evidence in closing, that the result would have likely
differed. Gore did not receive ineffective assistance of counsel.
B. JUROR ISSUES
Gore contends that Juror 11 “went to sleep during the whole trial.” SAG (Gore) at 1.
Because no one moved to dismiss Juror 11 at trial, this issue is not preserved on appeal and we do
not consider it. RAP 2.5(a).
Gore also contends that Juror 11’s son was supposed to be on the jury rather than Juror 11.
Kitt’s attorney raised this issue in a substantive brief and Gore adopted the argument. Matters that
“have been thoroughly addressed by counsel” are “not proper matters for [the] statement of
additional grounds under RAP 10.10(a).” State v. Thompson, 169 Wash. App. 436, 493, 290 P.3d
996 (2012).
II. KITT SAG
A. SELF-DEFENSE INSTRUCTION
Kitt contends that the trial court erred by refusing to instruct the jury on self-defense. We
disagree.
“‘To be entitled to a jury instruction on self-defense, the defendant must produce some
evidence demonstrating self-defense; however, once the defendant produces some evidence, the
burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt.’”
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State v. McCreven, 170 Wash. App. 444, 462, 284 P.3d 793 (2012) (quoting State v. Walden, 131
Wash. 2d 469, 473-74, 932 P.2d 1237 (1997)).
The standard of review of the trial court’s decision whether to give a self-defense
instruction “depends on whether the reason for such refusal was based on fact or law.” State v.
George, 161 Wash. App. 86, 94, 249 P.3d 202 (2011). If the trial court refused the instruction
“‘because it found no evidence supporting the defendant’s subjective belief of imminent danger of
great bodily harm, an issue of fact, the standard of review is abuse of discretion.’” George, 161
Wash. App. at 94 (quoting State v. Read, 147 Wash. 2d 238, 243, 53 P.3d 26 (2002)).
“It is the rule that the accidental killing of a third person by the accused acting in self-
defense would constitute justifiable homicide.” State v. Labbee, 134 Wash. 55, 62, 234 P. 1049
(1925).
The proposed instruction in this case would have provided that the homicide was justifiable
if the jury found “that the person slain or others whom the defendant reasonably believed were
acting in concert with the person slain intended to commit a felony to inflict death or great personal
injury.” CP at 242; WPIC 16.02. The proposed instruction did not discuss self-defense against a
person unrelated to the person slain. At the trial court, no one raised the fact that any self-defense
argument by the defendants would relate to defending against Alexander and the other Knoccout
members, not any of the victims of the murder or assault charges.
The trial court declined to give this instruction for two reasons. First, it ruled that it would
be “illogical to require the State to prove the absence of self defense beyond a reasonable doubt
but not give the State notice of such a defense until the end of the fourth week of trial.” CP at 256.
This reason is unsupported by law, as a defendant “is entitled to a self-defense instruction when,
considering all of the evidence, the jury could have a reasonable doubt as to whether the defendant
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acted in self-defense.” State v. Thysell, 194 Wash. App. 422, 426, 374 P.3d 1214 (2016). The
defense is not required to provide advance notice to the State of its intent to raise self-defense.
Second, the trial court found that there was “no credible evidence that the occupants of the
Cadillac Escalade reasonably believed that Brandon Morris, or anyone whom the defendants
reasonably believed were acting in concert with Brandon Morris, intended to inflict death or great
personal injury.” CP at 256.
On appeal, Kitt argues in his SAG that the trial court erred by declining to give the self-
defense instruction, but focuses all his arguments on facts about the Knoccout members’ allegedly
threatening actions and case law about when courts should give a self-defense instruction. He does
not address the trial court’s stated grounds for denying the instruction, nor does he acknowledge
that none of the victims in this case were the individuals alleged to have been the basis for the
proposed self-defense instruction.
Because there was no evidence that Morris or his companions took any action justifying
self-defense, and no one argues that self-defense should apply to the third-party Knoccout
members in this case, we affirm the trial court’s decision declining to give the jury instruction that
Kitt proposed.
B. FAILURE TO SEVER
Kitt contends that the trial court erred by failing to sever the joint-trial, causing him unfair
prejudice. He claims that he was unfairly prejudiced by the evidence of Gore’s note threatening
to kill Tucker and that the limiting jury instruction was insufficient to cure this prejudice under
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). We disagree.
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1. Bruton
CrR 4.4(c)(1) provides:
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:
(i) the prosecuting attorney elects not to offer the statement in the case in
chief; or
(ii) deletion of all references to the moving defendant will eliminate any
prejudice to him from the admission of the statement.
The Sixth Amendment provides criminal defendants a right to “to be confronted with the
witnesses against him.” U.S. CONST. amend VI. The admission of an out-of-court statement by a
nontestifying codefendant violates a defendant’s confrontation clause rights. State v. Wilcoxon,
185 Wash. 2d 324, 330, 373 P.3d 224 (2016). In Bruton, one defendant confessed to a crime,
implicating his codefendant, and the two were then tried together. 391 U.S. at 124. The trial court
instructed the jury to disregard the confession as to the codefendant’s guilt or innocence, but the
Supreme Court reversed, “holding that the use of [the confessing codefendant’s] confession
violated [the defendant’s] confrontation right, even with the limiting instruction.” Wilcoxon, 185
Wash. 2d at 330 (citing Bruton, 391 U.S. at 128).
In Wilcoxon, the Supreme Court considered how to harmonize Bruton with Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 185 Wash. 2d at 332. The
court ruled that “the confrontation clause applies only to situations that involve out-of-court
statements made by nontestifying codefendants when such statements are testimonial.”16
Wilcoxon, 185 Wash. 2d at 333-34. Accordingly, admission of Gore’s statements against Kitt only
16
Wilcoxon was a plurality opinion. 185 Wash. 2d at 337. However, five justices agreed that the
confrontation clause applies only to testimonial statements; two justices simply disagreed about
how to categorize a given statement as “testimonial.” Wilcoxon, 185 Wash. 2d at 336-38. Under
either the plurality or concurrence test from Wilcoxon, Gore’s threats were not testimonial
statements.
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violated Kitt’s confrontation clause rights if Gore’s out-of-court statements were “testimonial”
under the confrontation clause.
“[A] statement is ‘testimonial’ if it is the functional equivalent of in-court testimony.”
Wilcoxon, 185 Wash. 2d at 334. “A testimonial statement is designed to establish or prove some past
fact, or is essentially a weaker substitute for live testimony at trial.” Wilcoxon, 185 Wash. 2d at 334.
Gore’s threat to kill Tucker’s family if he “snitched” was not testimonial and Kitt’s
confrontation clause rights were not violated by admission of this evidence.
2. Unfair Prejudice
Kitt further contends that the admission of the note against Gore “was improper, unfair,
and highly prejudicial” such that severance should have been granted. SAG (Kitt) at 8. We
disagree.
CrR 4.4(c)(2)(ii) provides that the court should sever defendants whenever “during trial
upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of
the guilt or innocence of a defendant.” Washington law disfavors separate trials and we review a
trial court’s decision to proceed with joint or separate trials for manifest abuse of discretion. State
v. Emery, 174 Wash. 2d 741, 752, 278 P.3d 653 (2012). Trial courts properly grant severance motions
“only if a defendant demonstrates that a joint trial would be ‘so manifestly prejudicial as to
outweigh the concern for judicial economy.’” State v. Johnson, 147 Wash. App. 276, 283-84, 194
P.3d 1009 (2008) (quoting State v. Hoffman, 116 Wash. 2d 51, 74, 804 P.2d 577 (1991)).
“A ‘defendant must be able to point to specific prejudice’ to demonstrate that the trial court
abused its discretion.” Johnson, 147 Wash. App. at 284 (quoting State v. Grisby, 97 Wash. 2d 493,
507, 647 P.2d 6 (1982)). A defendant may demonstrate specific prejudice by showing
“(1) antagonistic defenses conflicting to the point of being irreconcilable and
mutually exclusive; (2) a massive and complex quantity of evidence making it
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almost impossible for the jury to separate evidence as it related to each defendant
when determining each defendant’s innocence or guilt; (3) a co-defendant’s
statement inculpating the moving defendant; (4) or gross disparity in the weight of
the evidence against the defendants.”
State v. Canedo-Astorga, 79 Wash. App. 518, 528, 903 P.2d 500 (1995) (quoting United States v.
Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)). In this case, Kitt claims that evidence of Gore’s
threats to witnesses inculpated him because Gore’s threats used the word “we.”
The evidence showed that Gore threatened Tucker with a note that said, “Please don’t
snitch. Take your statement back or were [sic] gonna kill your family.” CP at 40. The court then
read a jury instruction which said the evidence was admitted for a limited purpose and “may only
be considered by you as evidence against Jermohnn Gore and may not be used as evidence against
any other defendants, including [Kitt] and [Krentkowski].” 12 RP at 2301.
The jury is presumed to follow the court’s instructions. Grisby, 97 Wash. 2d at 499. To the
extent evidence of the threatening note could have prejudiced Kitt’s case, the court specifically
instructed the jury it should not consider the note as to Kitt. Because the court specifically
instructed the jury that any evidence of the threatening note was to be considered only against
Gore, it did not abuse its discretion by denying Kitt’s motion to sever the trials in this case.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Kitt claims he received ineffective assistance of counsel because his trial counsel failed to
request a third-party culpability jury instruction. We disagree.
Washington does not have any standard jury instruction on “third party culpability.” Kitt
cites to several cases concerning when evidence that a third party committed the charged crime
may be admissible at trial. See SAG (Kitt) at 10-11 (citing People v. Hall, 41 Cal. 3d 826, 833,
718 P.2d 99, 226 Cal. Rptr. 112 (1986); Evans v. Montgomery, No. CV 15-3296-R (JPR), 2016
WL 3457192 (C.D. Cal. May 17, 2016) (court order)).
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The defense presented evidence that a blue Chevy Corsica may have fired shots toward the
alley. However, if the jury believed that a shot from the Corsica killed Morris, it would not have
found the defendants guilty. No further jury instruction was required to inform the jury that, if it
believed that the Knoccout members or the Corsica had committed the murder, it should have
found the defendants not guilty. Kitt’s trial counsel was not deficient for failing to request a jury
instruction on this issue and Kitt has not shown that the lack of such an instruction prejudiced his
case.
D. MILLER
Kitt contends that, although he was not a juvenile at the time of the crime, the court should
have considered his youthfulness as a mitigating factor in his sentence because he was 23 years
old at the time of the offense. He claims this court must remand to the trial court for resentencing
for the trial court to consider his youthfulness as a mitigating factor. We disagree.
Miller and its Washington progeny are discussed above. In addition to those cases, State
v. O’Dell, 183 Wash. 2d 680, 683, 358 P.3d 359 (2015), applied the reasoning from Miller to a
defendant who had committed his offense 10 days after his 18th birthday. The court held that age
may mitigate a defendant’s culpability, “even if that defendant is over the age of 18” but noted that
“age is not a per se mitigating factor automatically entitling every youthful defendant to an
exceptional sentence.” O’Dell, 183 Wash. 2d at 695. The court held that “a trial court must be
allowed to consider youth as a mitigating factor when imposing a sentence on an offender like
O’Dell, who committed his offense just a few days after he turned 18.” O’Dell, 183 Wash. 2d at 696.
The court noted psychological and neurological studies that showed “‘parts of the brain involved
in behavior control’ continue to develop well into a person’s 20s.” O’Dell, 183 Wash. 2d at 691-92
(quoting Miller, 567 U.S. at 472).
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Unlike the defendant in O’Dell, Kitt was 23 at the time of the shooting in this case. Nothing
in the record demonstrated Kitt’s particular immaturity and he has not argued that he was
especially immature except for identifying his age as 23 years old at the time of the crime. Also
unlike O’Dell, Kitt did not raise the issue of his youthfulness before the trial court. Kitt was six
years older than the next youngest of all six individuals in the vehicle at the time of the shooting.
Kitt has not shown any particular youthful immaturity necessitating a Miller hearing.
CONCLUSION
We affirm Kitt’s and Gore’s convictions, but remand for the trial court to dismiss their
murder in the second degree convictions with prejudice, conduct a Miller hearing for Gore, and to
strike LFOs from both their sentences.
Melnick, J.
We concur:
Worswick, P.J.
Sutton, J.
47