Opinion
No. 22003-6-III
Filed: December 28, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 02-1-01963-4. Judgment or order under review. Date filed: 03/31/2003. Judge signing: Hon. Linda G Tompkins.
Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, PO Box 20008, Spokane, WA 99204-0008.
Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Lamark A. Walker was convicted of one count of second degree manslaughter and three counts of second degree assault. Claiming his constitutional rights were violated, the evidence was insufficient to support the convictions, and the court made a number of improper evidentiary rulings, he appeals. Contending the court erred by instructing the jury on self-defense, dismissing the second degree felony murder charge, and admitting hearsay testimony, the State cross appeals. Mr. Walker also raises several other issues in his statement of additional grounds for review. We affirm.
At about 10:00 p.m. on August 2, 2002, Amy Parkhill, her boyfriend Ronald Jones, and his brother Tad Ferguson, visited Mr. Walker and his girlfriend, Samara Vaught, at their home. The group decided to go to a bar. After leaving the bar, they stopped at a convenience store to buy beer and went to Mr. Walker's home. While at the home, Mr. Walker slapped Ms. Vaught in the face and then hit her again. Ms. Parkhill tried to intervene, but Mr. Walker told her it was none of her business and threw a potted plant at her. When Mr. Jones and Mr. Ferguson stood up, Ms. Parkhill saw a very upset Mr. Walker grab a gun.
Meanwhile, Sean Spence and his friends, Justin Rockey and Michael Royce, were sitting in a car outside Mr. Walker's home. While they were in the car, they saw a woman fighting with a man. She was screaming for help. Mr. Rockey and Mr. Royce stayed in the car, but Mr. Spence got out and ran up to the house to see if anyone needed help.
As Mr. Jones was leaving through the home's front door, Mr. Spence appeared at the doorway. Mr. Jones tried to stop him from entering the house, but Mr. Spence went inside with his hands raised and swinging wildly. Mr. Spence hit Ms. Vaught and then hit Mr. Walker. The two men started to fight. Mr. Walker hit Mr. Spence on the head with the gun. Mr. Spence fell near the front door, but got up and came back towards Mr. Walker. Ms. Parkhill, Mr. Jones, and Mr. Rockey then heard a gunshot. After the gunshot, Mr. Rockey, who was still waiting in the car for Mr. Spence, saw people running out of the house and into a black SUV parked outside. They left. When Mr. Rockey and Mr. Royce saw Mr. Spence, they got out of the car and ran to him. Mr. Spence then fell to the ground with a cut on his head and a gunshot wound to his stomach. He died from the gunshot wound.
Mr. Walker was charged with one count of second degree felony murder and one count of unlawful possession of a firearm. On August 29, 2002, the information was amended to charge Mr. Walker with one count of second degree felony murder, four counts of second degree assault, and one count of first degree unlawful possession of a firearm. On December 10, 2002, the information was again amended to charge Mr. Walker with second degree felony murder, while committing first degree unlawful possession of a firearm, or in the alternative, first degree manslaughter. Mr. Walker pleaded guilty to the unlawful possession of a firearm charge and went to trial on the remaining counts. At trial, the court dismissed the second degree felony murder charge and a second degree assault charge. The jury found Mr. Walker guilty on the remaining charges — one count of first degree manslaughter and three counts of second degree assault. Mr. Walker was sentenced to life in prison without the possibility of parole. He appeals.
Mr. Walker first claims a violation of his constitutional rights. Mr. Walker is African-American. During jury selection, Sam Sledge, the only African-American on the jury venire, told the prosecutor he would be an `advocate' for the defendant. Report of Proceedings (RP) (Jan. 14, 2003) at 329-30. The exchange between the prosecutor and Mr. Sledge follows:
[Prosecutor]: Does it trouble you that the prospective panel that is here to eventually evaluate this particular case is not as diverse in terms of all those things that I mentioned earlier? Do you believe that there are problems with that?
[Mr. Sledge]: Spokane is so much more civilized than where I am from. My duty as a citizen is to be the advocate of the defendant until evidence weighs the other way. So I believe we are all the defendant's advocate until proven otherwise.
[Prosecutor]: You indicated that you are the defendant's advocate?
[Mr. Sledge]: Yes.
[Prosecutor]: Why are you Mr. Walker's advocate?
[Mr. Sledge]: He is on trial. He is the one who is innocent until proven otherwise. So we are all his advocate until proven otherwise.
[Prosecutor]: So is it fair to say from your perspective the defendant is up here, is it fair to say that you are more impartial towards Mr. Walker than you are towards the state?
[Mr. Sledge]: No. No, that is not my meaning at all. See, I didn't create the constitution, but I do understand it, and I live by it proudly. If you are proven — if you are innocent until proven guilty, then I come with an open mind. With an open mind, you are innocent. When the state presents evidence to show otherwise, then my duty calls for me to prosecute the defendant. But before then, I am his advocate.
RP (Jan. 14, 2003) at 329-30. The prosecutor subsequently challenged Mr. Sledge for cause, but the trial court denied the challenge because there was no bias that would permit it to excuse the juror. The prosecutor then removed Mr. Sledge with a peremptory challenge.
Mr. Walker claims the State's use of a peremptory challenge to remove the only African-American juror on the venire violated the equal protection clause. A party generally has the right to exercise peremptory challenges against potential jurors without giving a reason. State v. Evans, 100 Wn. App. 757, 763, 998 P.2d 373 (2000). But under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), discriminatory challenges against a member of a protected class are prohibited by the equal protection clause. State v. Beliz, 104 Wn. App. 206, 212-13, 15 P.3d 683 (2001).
In determining whether a peremptory challenge violates the equal protection clause, courts apply the three-part test developed in Batson. Id. at 213; State v. Burch, 65 Wn. App. 828, 840, 830 P.2d 357 (1992). First, one party must establish a prima facie case of purposeful discrimination. Belize, 104 Wn. App. at 213. This burden is met by showing that a peremptory challenge was exercised against a member of a protected class and that it can be inferred the challenge was based upon membership in that class, given all relevant circumstances. Id. Once this showing is made, the burden shifts to the party exercising the challenge to articulate a race-neutral explanation for the challenge. Id. This explanation must be "clear and reasonably specific." Burch, 65 Wn. App. at 840 (quoting Batson, 476 U.S. at 98 n. 20). The court must then determine whether purposeful discrimination occurred. Belize, 104 Wn. App. at 213. In making this determination, the court considers the prospective juror's specific responses and demeanor during voir dire. Burch, 65 Wn. App. at 840. The court's ruling will not be reversed unless it was clearly erroneous. Belize, 104 Wn. App. at 213.
The State asserts Mr. Walker did not establish a prima facie Batson violation and, if the trial court erred at all, it was in requiring the prosecutor to explain his peremptory challenge. But a prosecutor's `dismissal of the only eligible African-American juror may imply a discriminatory act or motive.' State v. Rhodes, 82 Wn. App. 192, 201, 917 P.2d 149 (1996). Therefore, when a juror is the only African-American on the venire, the trial court should ask the prosecutor to articulate a reason for the challenge in order to determine, based on the circumstances and the prosecutor's explanation, whether purposeful discrimination did in fact occur. Id. at 201-02.
The prosecutor here explained the reasons for exercising the peremptory challenge of Mr. Sledge:
Well, Your Honor, in this particular case, I understand that there is also — and it should be on the record that there is one other minority that is back in the pool that the state has not struck. Again, the basis for striking Mr. Sledge is because he indicated that he was going to be an advocate for the defendant. He said that over and over again. What he said with respect to law enforcement is he said he had no problem with law enforcement. Obviously, in a criminal case, a particular juror — all the jurors have to come in here and be fair and impartial. The concern for the state is that he is already leaning more towards the defendant and, therefore, from the state's perspective, is more bias towards the defendant than the state. That is the trouble that the state has with Mr. Sledge's response. If Mr. Sledge were a Caucasian person and he said the same thing, that he is an advocate for the defendant, obviously, I am a prosecutor, I represent the state, I would also have a problem with that individual.
RP (Jan. 14, 2003) at 346-47. In light of the record, juror bias was a valid, nondiscriminatory reason to exercise the peremptory challenge. The court's determination that this explanation was satisfactory was not clearly erroneous, and will not be disturbed.
Mr. Walker next contends the trial court erred in admitting hearsay statements into evidence under the excited utterance exception. The court allowed Detective George Benavidez to testify that, 13 hours after the shooting, Ms. Parkhill called the police saying she had information about a shooting. When detectives met with her, she was visibly upset and nervous. With hands shaking, she was on the verge of crying.
Ms. Parkhill told the detectives she was an acquaintance of Mr. Walker and Ms. Vaught. She was drinking at Mr. Walker's house, when he became upset with Ms. Vaught and slapped her. He then hit Ms. Vaught with his fist and slammed her head against the wall. Ms. Parkhill told Detective Benavidez she got very upset and started yelling. Mr. Jones and Mr. Ferguson also started to say something, but Mr. Walker went to a hall closet, grabbed a gun and pointed the gun at everyone, threatening them with it. Ms. Parkhill feared for her safety and went out the back door. When she got to the front of the house, she saw a white male walking up to the front door. She saw him standing by the threshold of the open front door. The white male went inside the house. She heard a gunshot. The white male and Ms. Vaught then came out of the house. Ms. Parkhill, Mr. Jones, and Mr. Ferguson got into a car and left. As they were driving away, Ms. Parkhill saw Mr. Walker waving his arms at them. They drove around the block and came back to where the victim was lying in the street. The court admitted this hearsay evidence under the excited utterance exception.
Mr. Walker claims the court erred by admitting as excited utterances Ms. Parkhill's hearsay statements to Detective Benavidez. We review the trial court's decision for an abuse of discretion. State v. Woods, 143 Wn.2d 561, 597-98, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001). `The excited utterance exception is based upon the theory that a statement made as a spontaneous reaction to the stress of a startling event offers little to no opportunity for misrepresentation or conscious fabrication.' State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000). A statement `qualifies as an excited utterance . . . if (1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition.' Id. Whether the declarant makes statements while still under the stress of an event is a factual determination. State v. Sims, 77 Wn. App. 236, 238, 890 P.2d 521 (1995). Often, the key factor is "whether the statement was made while the declarant was still under the influence of the event to the extent that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment." State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (quoting Johnson v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)).
Although spontaneity is critical, `[t]he statement need not be completely spontaneous and may be in response to a question.' State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000). `A declarant's ability to provide detailed information about the event . . . tends to show a calm, reflective state of mind.' State v. Ramires, 109 Wn. App. 749, 758, 37 P.3d 343, review denied, 146 Wn.2d 1022 (2002). The lapse of time between the startling event and the declaration is also a factor, but the lapse of time alone is not critical or dispositive. Id.; Williamson, 100 Wn. App. at 258. `The longer the time interval, [however,] the greater the need for proof that the declarant did not actually engage in reflective thought.' Ramires, 109 Wn. App. at 758.
Here, the shooting witnessed by Ms. Parkhill was a startling event. But her statements were not a spontaneous recitation to the event. Ms. Parkhill contacted the police on her own initiative nearly 13 hours afterward. Although she was nervous, shaking, and on the verge of crying, Ms. Parkhill was able to give police a detailed timeline of events. These facts tend to show that she had the opportunity to deliberate or reflect, so that these statements were not excited utterances.
Nevertheless, when the trial court's error results from a violation of an evidentiary rule and not a constitutional mandate, we apply the rule that an error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). `The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole.' Id.
Mr. Walker argues the hearsay statements provided the only evidence that he pointed his gun at any of his guests and that his confrontation with Ms. Vaught involved anything more than a single slap. But it is unlikely that any erroneously admitted hearsay statement materially affected the outcome of this trial. Ms. Parkhill testified that Mr. Walker slapped Ms. Vaught and then hit her again. She testified that Mr. Walker was holding a gun, was very upset, and was yelling at his guests. Mr. Jones also testified that Mr. Walker had a gun in his hand. He was concerned for his brother and his girlfriend, and he was concerned because Mr. Walker was in a highly emotional state and brandishing a gun. Based on this evidence, it is unlikely, within reasonable probabilities, that the outcome of the trial would have been different had the hearsay statements not been admitted. In light of the evidence as a whole, the error was harmless.
The State contends on cross appeal that the trial court erred by giving self-defense instructions to the jury. The State argues the evidence at trial did not support such an instruction. `A trial court determines whether there is sufficient evidence to instruct the jury on self-defense by reviewing the entire record in the light most favorable to the defendant with particular attention to those events immediately preceeding and including the alleged criminal act.' State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997). But a defendant is not entitled to a self-defense instruction without first producing some evidence which tends to prove that the criminal act occurred in circumstances amounting to self-defense. State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993); State v. Walker, 40 Wn. App. 658, 662, 700 P.2d 1168, review denied, 104 Wn.2d 1012 (1985). Therefore, `[t]he sufficiency of the evidence to raise a claim of self-defense is a question of law for the trial court, viewing the evidence from the defendant's perspective.' Walker, 40 Wn. App. at 662.
Because three of Mr. Walker's issues on appeal involve self-defense, the State's cross-appeal issue on whether Mr. Walker was even entitled to a self-defense instruction will be examined first.
Evidence of self-defense is assessed from the standpoint of a reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees, which incorporates both objective and subjective elements. Janes, 121 Wn.2d at 238. The subjective element requires the trier of fact to stand in the shoes of the defendant and to consider all the facts and circumstances known to him. State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997). The objective element requires the trier of fact to use this information to determine what a reasonably prudent person similarly situated would have done. Id. `Accordingly, the degree of force used in self-defense is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant.' Id.
`The use of force against another is lawful `[w]henever used by a party about to be injured . . . in preventing or attempting to prevent an offense against his person, . . . [and] the force is not more than is necessary.'' Walker, 40 Wn. App. at 662 (quoting RCW 9A.16.020(3)). The right to use deadly force in self-defense, however, is based on the existence of a necessity. Id. `To raise a self-defense claim in a murder prosecution, a defendant must produce some evidence to establish the killing occurred in circumstances amounting to defense of life and produce some evidence he or she had a reasonable apprehension of great bodily harm and imminent danger.' State v. Read, 147 Wn.2d 238, 242, 53 P.3d 26 (2002). `If `there is no reasonable ground for the person attacked . . . to believe that his person is in imminent danger of death or great bodily harm, and it appears to him that only an ordinary battery is all that is intended, . . . he has no right to repel a threatened assault by the use of a deadly weapon in a deadly manner.'' State v. Walker, 136 Wn.2d 767, 777, 966 P.2d 883 (1998) (quoting Walden, 131 Wn.2d at 475)).
Here, the evidence did not establish a self-defense claim. The only evidence in support of self-defense for the manslaughter charge was provided by Ms. Vaught. She testified that Mr. Spence's hands were raised and he was `swinging wildly' when he entered the home. RP (Jan. 22, 2003) at 50. Mr. Spence hit Ms. Vaught and then hit Mr. Walker, thus provoking a fight between the two men. At some point during the fight, Mr. Walker pushed Mr. Spence off, but he got up and came back towards Mr. Walker, who then hit him on the head with the gun. Mr. Spence fell backwards, but returned to the living room, where Mr. Walker shot him. Despite this testimony, however, there was no evidence that Mr. Walker subjectively feared imminent danger of death or great bodily harm. There was no evidence that the victim used a weapon or threatened Mr. Walker with death or great bodily injury. There was also no evidence that Mr. Walker suffered any injuries or that he himself feared for his safety. Any reasonable person standing in Mr. Walker's shoes would have believed that `only an ordinary battery' was intended, in which case the use of deadly force was unjustified. Walker, 136 Wn.2d at 779.
Mr. Walker did not testify at the trial.
Moreover, there was no evidence to support a self-defense instruction on the assault charges. After watching Mr. Walker slap and then hit Ms. Vaught, Ms. Parkhill told Mr. Walker to stop and asked Mr. Jones to `do something.' RP (Jan. 22, 2003) at 12. Mr. Walker turned his attention to Ms. Parkhill and began to walk towards her, asking her what she was going to do about the situation. Mr. Jones then stood up in front of Ms. Parkhill and Mr. Walker approached Mr. Jones, asking him `what are you gonna do?' RP (Jan. 22, 2003) at 12. Mr. Jones stepped forward, while Mr. Walker stepped back, prompting Mr. Ferguson to stand up. Ms. Parkhill, Mr. Jones, and Mr. Ferguson then decided to leave the house. As they headed to the door, Mr. Walker brandished the gun. Based on these facts, there was no evidence that Mr. Walker subjectively believed he needed to defend himself from an unarmed individual, who had made no threatening or aggressive comments or gestures towards him. Furthermore, in brandishing a gun, Mr. Walker did not defend himself as an ordinary reasonably prudent person would have done in the same or similar circumstances. Because he failed to satisfy the subjective element of self-defense, the trial court erred in instructing the jury on the defense.
Mr. Walker also contends that (1) the trial court improperly admitted into evidence his unspecified prior conviction and court order prohibiting him from using or possessing a firearm for the purpose of rebutting his self-defense claim; (2) the trial court improperly commented on the evidence by giving a limiting instruction regarding the prior conviction and court order; (3) the trial court erred in excluding testimony concerning the effects of alcohol and drugs on Mr. Spence's behavior in support of his self-defense claim; and (4) the trial court erred in giving an initial aggressor instruction. In its cross appeal, the State contends the trial court erred in admitting into evidence hearsay statements concerning alleged threats made to Mr. Walker. But we need not address these issues because we conclude Mr. Walker was not entitled to raise a self-defense claim.
Mr. Walker next challenges the sufficiency of the evidence supporting his second degree assault conviction. In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The elements of a crime may be established by either direct or circumstantial evidence, and one type is no more valuable than the other. State v. Thompson, 88 Wn.2d 13, 16, 558 P.2d 202 (1977), appeal dismissed, 434 U.S. 898 (1977). Credibility determinations are within the sole province of the jury and are not subject to review. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). Assessing discrepancies in trial testimony and the weighing of evidence are also the sole province of the factfinder. State v. Longuskie, 59 Wn. App. 838, 844, 801 P.2d 1004 (1990).
Assault is an attempt with unlawful force to inflict bodily harm on another. State v. Coffelt, 33 Wn.2d 106, 108, 204 P.2d 521 (1949). One of the essential elements of second degree assault is specific intent either to cause bodily harm or to create apprehension of bodily harm. State v. Eakins, 127 Wn.2d 490, 496, 902 P.2d 1236 (1995). Specific intent `can be inferred as a logical probability from all the facts and circumstances' of a case. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). Mr. Walker argues there was insufficient evidence to support the inference that he acted with intent to create a fear of bodily injury or that he in fact created such fear in Ms. Vaught, Ms. Parkhill, and Mr. Jones. But Ms. Parkhill testified Mr. Walker was holding the gun and was very upset. She said Mr. Walker was yelling at everyone in the house and she was scared. Although Ms. Vaught and Mr. Jones both testified the gun was not pointed at anyone, Mr. Jones said he was concerned because Mr. Walker was brandishing a gun and `anything can happen.' RP (Jan. 21, 2003) at 98. Ms. Vaught, however, testified she did not see Mr. Walker with a gun until he was fighting with Mr. Spence. Although she testified she was not scared but just `shocked' when she saw the gun in Mr. Walker's hand, Ms. Vaught also stated that, after Mr. Spence left her home, she did not call the police but left her house to go to a friend's home as she was `scared' and `panicked.' RP (Jan. 22, 2003) at 41, 61. Based on the testimony and the inferences to be drawn from it, there was sufficient evidence to support a logical probability that Mr. Walker intended to create, and in fact created, a reasonable apprehension and fear of bodily injury in Ms. Parkhill, Mr. Jones, and Ms. Vaught.
Mr. Walker contends his life sentence was based on a constitutionally invalid prior conviction. He was sentenced under the Persistent Offender Accountability Act (POAA) because of a 1991 conviction for attempted second degree robbery and a 1992 conviction for second degree robbery. He asserts the 1991 conviction was constitutionally invalid because his guilty plea statement did not include all the elements of the crime. But once the State proves the existence of a prior conviction, it does not have to prove the prior conviction is constitutionally valid unless it has been previously declared invalid or is facially invalid. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). A facially invalid conviction is one that evidences infirmities of a constitutional magnitude without further elaboration. Id. at 188.
The Statement of Defendant on Plea of Guilty stated: `I have been informed and fully understand that I am charged with the crime of attempted robbery in the second degree, that the elements of the crime are to attempt to steal property from the person of another in Benton County.' Clerk's Papers at 211; RP (Mar. 31, 2003) at 19.
Here, the conviction did not show infirmities of a constitutional magnitude. Although the guilty plea statement did not explicitly include each element of the crime, Mr. Walker provided the following statement, factually establishing each element:
The court has asked me to state briefly in my own words what I did that resulted in my being charged with the crime in the Information. This is my statement: I entered . . . restaurant in Kennewick on September 17, 1991 — I wore a mask — grabbed an employee — was going to try and get money — she screamed and I ran off. Clerk's Papers (CP) at 212. Moreover, Mr. Walker did not introduce any affirmative evidence to show he was not aware of his rights when he pleaded guilty. Under these circumstances, the conviction was facially valid.
In its cross appeal, the State claims the trial court erred by dismissing the second degree felony murder charge on Mr. Walker's Knapstad motion. The predicate crime for the felony murder charge was unlawful possession of a firearm.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d (1986).
A person is guilty of second degree felony murder when `[h]e . . . commits or attempts to commit any felony . . . other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime . . . he . . . causes the death of a person other than one of the participants.' RCW 9A.32.050(1)(b). `For felony murder, the homicide and the underlying felony must be part of the same transaction, not separate, distinct, and independent from it.' State v. Millante, 80 Wn. App. 237, 249-50, 908 P.2d 374 (1995), review denied, 129 Wn.2d 1012 (1996). `A homicide is deemed committed during the perpetration of a felony, for the purpose of felony murder, if the homicide is within the `res gestae' of the felony, i.e., if there was a close proximity in terms of time and distance between the felony and the homicide.' State v. Leech, 114 Wn.2d 700, 706, 790 P.2d 160 (1990). The State asserts that whether Mr. Spence's death was closely related to the unlawful possession of a firearm was a factual issue for the jury to decide. The State bases this assignment of error on one sentence taken from State v. Ryan, 192 Wash. 160, 166, 73 P.2d 735 (1937): `Each case must depend upon its own facts and circumstances and, as a rule, presents a question for the jury.' But, `[a] court's dismissal of charges contained in the information is proper if no rational trier of fact could have found beyond reasonable doubt the essential elements of the crime.' State v. Gary J.E., 99 Wn. App. 258, 264, 991 P.2d 1220, review denied, 141 Wn.2d 1020 (2000).
Here, the evidence viewed most favorably to the State does not support a finding that the killing occurred in the course of and in furtherance of Mr. Walker's unlawful possession of a firearm. He had completed the crime of unlawfully possessing a firearm prior to Mr. Spence's death. The unlawful possession of a firearm was a distinct and separate transaction from the homicide. Therefore, the trial court did not err by dismissing the second degree felony murder charge.
In his statement of additional grounds for review, Mr. Walker contends the prosecutor committed prejudicial misconduct. To obtain reversal of a conviction on the basis of prosecutorial misconduct, a defendant must show the prosecutor's conduct was improper and the conduct had a prejudicial effect, which means there must be a substantial likelihood the conduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). A prosecutor's `remarks must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
Mr. Walker claims three instances of prosecutorial misconduct. He first notes that during direct examination of Mr. Jones, the prosecutor asked leading questions. Although Mr. Walker provides page citations to the record, he fails to show how these questions were so prejudicial as to affect the outcome of the trial. See State v. Markham, 40 Wn. App. 75, 89-90, 697 P.2d 263 (leading questions forcing the defense to object did not affect the jury to a level that constituted prosecutorial misconduct), review denied, 104 Wn.2d 1003 (1985).
Mr. Walker next argues the prosecutor committed misconduct when he intimated that Ms. Vaught was presenting perjured testimony to the jury. Mr. Walker points to the following questioning, which occurred during the prosecutor's direct examination of Ms. Vaught:
[Prosecutor]: You love Mr. Walker, is that correct?
[Ms. Vaught]: I do. [Prosecutor]: Is it fair to say that you'd do anything for Mr. Walker, including giving false statements to Detective Benavidez on his behalf?
[Ms. Vaught]: I gave Benavidez a false statement. I don't know that I — I can't say that I would do anything to protect anybody that I love. I mean I — myself and my kids.
[Prosecutor]: And you love Mr. Walker so much that you would even give misleading statements toward this honorable jury as to what happened, correct?
[Ms. Vaught]: No.
RP (Jan. 22, 2003) at 92-93. While it is improper for a prosecutor to express his personal opinion about the credibility of a witness, error does not occur unless it is clear and unmistakable that the prosecutor was not arguing inferences from the evidence. State v. Smith, 104 Wn.2d 497, 510-11, 707 P.2d 1306 (1985); State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984); State v. Sargent, 40 Wn. App. 340, 343-44, 698 P.2d 598 (1985). `Thus, prosecutors may argue inferences from the evidence, including inferences as to why the jury would want to believe one witness over another.' State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). Even assuming these questions were the prosecutor's expression of his personal belief about the credibility of Ms. Vaught, no one objected and the questions were not so flagrant that they could not have been neutralized with a curative instruction. Moreover, Mr. Walker has failed to show there was a substantial likelihood the prosecutor's questions affected the jury's decision. The prosecutor's questions related to the evidence and appropriately drew inferences from it. Any prejudice was mitigated when the court gave a general instruction stating that only the jury could determine the credibility of the witnesses. A jury is presumed to follow the court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
Mr. Walker also argues the prosecutor prejudicially misstated the law during closing argument, thus requiring reversal of his convictions. Specifically, he alleges the prosecutor incorrectly read the instruction on justifiable homicide to the jury.
While reading this instruction, the prosecutor incorrectly stated, `[w]hen you look at the other issue of a justified homicide, there are a number of conditions that must be met. He has to reasonably believe that Sean Spence intended to inflict death and grave personal injury.' RP (Jan. 28, 2003) at 59 (emphasis added). On the defense's objection, the trial court ruled the prosecutor incorrectly read the jury instruction by saying `and' rather than `or.' Because the trial court required the prosecutor to clarify the law by re-reading the correct instruction to the jury and the possible confusion created by the prosecutor's statements could easily have been resolved in any event by reading the instruction, there was no substantial likelihood the misstatement affected the trial's outcome.
Mr. Walker further contends the court erred in admitting evidence that he fled to Portland, Oregon, to avoid prosecution. But `[e]vidence of flight is admissible if it creates `a reasonable and substantive inference that defendant's departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution.'' State v. Hebert, 33 Wn. App. 512, 515, 656 P.2d 1106 (1982) (quoting State v. Nichols, 5 Wn. App. 657, 660, 491 P.2d 677 (1971)). `The admission of potentially prejudicial evidence lies within the discretion of the trial court.' Id. Mr. Walker's flight to Portland could reasonably be considered a deliberate effort to evade arrest and prosecution and could be probative of his consciousness of guilt. Therefore, the court did not abuse its discretion in admitting the evidence.
Mr. Walker contends the court erred by allowing the State to refer to evidence concerning Ms. Vaught's handling of ammunition. His entire argument rests on one sentence:
The trial court also allowed the State to refer and infer evidence concerning Samara Vaught's touching ammunition to the gun involved, after the Court had ruled at pre-trial that `[e]vidence of Ms. Vaught's fingerprint would not be helpful, and in fact would by [sic] unfairly prejudicial and confusing to the jury as it relates to Ms. Vaught's participation.'
Statement of Additional Grounds for Review at 10. But the citations provided to the record do not indicate Ms. Vaught handled any ammunition. This court will not consider an issue in the statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. RAP 10.10(c). Moreover, this court does not have to search the record to support a defendant's claims. Id.
Mr. Walker contends the trial court erred in failing to give a jury instruction on the lesser included offense of unlawful display of a firearm. He proposed a lesser included offense instruction on unlawful display of a firearm, but the trial court declined to give his proposed instruction.
A trial court's refusal to submit a proposed jury instruction is reviewed for an abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336, review denied, 136 Wn.2d 1021 (1998). The jury must be fully instructed on the law, but there is no right to an instruction that is not supported by the evidence. State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994). A defendant may be convicted of a lesser included offense even if the State did not charge the lesser offense. RCW 10.61.006; State v. Fernandez-Medina, 141 Wn.2d 448, 453, 6 P.3d 1150 (2000). But a defendant is only entitled to an instruction on a lesser included offense if (1) each of the elements of the lesser offense are a necessary element of the charged offense, and (2) the evidence in the case supports an inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978); see State v. Berlin, 133 Wn.2d 541, 547-49, 947 P.2d 700 (1997) (overruling State v. Lucky, 128 Wn.2d 727, 912 P.2d 483 (1996)). The requirements are respectively known as the `legal' and `factual' prongs of the lesser included test. State v. Walden, 67 Wn. App. 891, 893, 841 P.2d 81 (1992).
Under the legal prong, a defendant is entitled to an instruction on the lesser offense only if the charged crime could not be committed without also committing the lesser offense. Walden, 67 Wn. App. at 893. In other words, the question is whether Mr. Walker also committed the crime of unlawful display of a firearm when committing the crime of second degree assault. A person is guilty of unlawfully displaying a firearm if he `carr[ies], exhibit[s], display[s], or draw[s] any firearm . . . in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.' RCW 9.41.270(1). A person is guilty of second degree assault if he `[a]ssaults another with a deadly weapon.' RCW 9A.36.021(c). Assault has generally been defined as `an attempt, with unlawful force, to inflict bodily injury upon another, or to cause apprehension of such injury, accompanied with the apparent present ability to give effect to the attempt if not prevented.' State v. Baggett, 103 Wn. App. 564, 569, 13 P.3d 659 (2000), review denied, 143 Wn.2d 1011 (2001). Because a person who displays a firearm in the manner described also commits all of the acts necessary for commission of second degree assault, each element of the lesser offense of unlawful display of a firearm is a necessary element of the offense of second degree assault. Id. Mr. Walker could not commit one crime without committing the other, so the legal prong of the lesser included test was met.
`To satisfy the factual prong of Workman, the evidence must support an inference that the lesser offense was committed instead of the greater offense.' State v. Karp, 69 Wn. App. 369, 376, 848 P.2d 1304, review denied, 122 Wn.2d 1005 (1993). In other words, `the record must support an inference that only the lesser offense was committed.' Id.
Here, the record does not support an inference that Mr. Walker only violated the unlawful display statute. The evidence established he got the gun after becoming upset with his guests. He was highly emotional and brandishing his gun, while yelling at everyone in his home. His guests testified they were scared and concerned. This evidence supports an inference that an assault was committed because Mr. Walker engaged in an intentional act that placed his guests in apprehension of harm. While Mr. Walker's conduct also supports an inference that he violated the unlawful display statute, the evidence does not support an inference that only that statute was violated. Mr. Walker thus was not entitled to the lesser included offense instruction.
Mr. Walker next appears to contend he was entitled to a jury determination that he was a persistent offender subject to sentencing under the POAA. He relies on the dissenting opinion in State v. Wheeler, 145 Wn.2d 116, 133-34, 34 P.3d 799 (2001), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But only when the legislature uses additional or aggravating factors to increase a maximum sentence must a jury find these factors beyond reasonable doubt. Apprendi, 530 U.S. at 490-91. A prior conviction is not an aggravating or additional factor that must go to a jury. Id. at 490; State v. Thomas, 150 Wn.2d 821, 847-48, 83 P.3d 970 (2004). Thus, Mr. Walker was not entitled to a jury determination of his persistent offender status.
Mr. Walker also contends the evidence was insufficient to support his first degree manslaughter conviction. Specifically, he argues the State failed to present evidence he was reckless in shooting Mr. Spence. In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). A person is guilty of first degree manslaughter if he `recklessly causes the death of another person.' RCW 9A.32.060(1)(a). A person acts recklessly `when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.' RCW 9A.08.010(1)(c).
Immediately prior to shooting Mr. Spence, Mr. Walker brandished the gun after he became upset with his house guests. He was in a highly emotional state and had also been drinking alcohol that evening. His handling a loaded firearm under such circumstances posed a substantial risk of injury or death to a nearby person. Mr. Walker nevertheless disregarded that risk. A rational trier of fact could conclude a reasonable person would not have undertaken such a risk. The evidence and inferences to be drawn from it were sufficient to find the elements of first degree manslaughter beyond a reasonable doubt.
Mr. Walker finally contends reversal of his convictions is required because of prejudicial cumulative error. Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors cumulatively produced a trial that was fundamentally unfair. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified on other grounds, 123 Wn.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). But when no prejudicial error is shown to have occurred, cumulative error could not have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Because no prejudicial error occurred here, the cumulative error doctrine is inapplicable.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and BROWN, J., Concur.