                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          May 27, 2020



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 48214-2-II

                                 Respondent.

           vs.                                                UNPUBLISHED OPINION

    GARY LEE BROWN, JR.,
    aka GARY L. TAYLOR,

                                 Appellant.



         MAXA, P. J. – Gary Brown appeals his convictions of second degree assault and felony

harassment.1 These convictions arise from a series of threatening texts and voice messages that

Brown sent to his former girlfriend and an altercation where he held a knife to her throat.

         We hold that (1) the trial court’s instruction that defined “deadly weapon” was erroneous,

but Brown invited the error and we need not review his challenge; (2) the prosecutor asking

Brown whether the victim had lied was improper, but Brown failed to object and therefore

waived his challenge; (3) the prosecutor did not commit misconduct in commenting on Brown’s

silence in an unrelated matter where Brown was the victim of a crime; (4) the cumulative error

doctrine is inapplicable because the errors were either invited or waived; and (5) the claims

asserted in Brown’s statement of additional grounds (SAG) have no merit.




1
    Brown does not appeal his conviction of fourth degree assault.
No. 48214-2-II


       Accordingly, we affirm Brown’s convictions.

                                              FACTS

       In October 2013, Brown and Edna Ferry started a dating relationship. In January 2014,

they separated. Following the separation, Brown sent Ferry a number of threatening text

messages and voice messages.

       In February, Brown and Ferry resumed their relationship. On February 13, they got into

a verbal altercation while Ferry was giving Brown a ride. Brown threatened to slit Ferry’s throat

and forced Ferry to park her van in the middle of the road. Brown exited the van, walked over to

the driver’s side, and put a knife to Ferry’s throat. Brown again threatened to cut Ferry’s throat.

Ferry managed to push the knife away with her hand and Brown calmed down. The State

charged Brown with second degree assault, fourth degree assault, and felony harassment.

       At trial, Ferry testified about the February 13 incident. She stated that the knife Brown

held to her throat was about as long as her hand. Brown testified and denied carrying a knife or

ever threatening Ferry with a knife.

       During cross examination, the prosecutor asked Brown about his breakup with Ferry:

       Q. All right. And when Edna – Edna tried to break up with you in January,
       didn’t she?

       A. No, she did not break up with me.

       Q. She didn’t? Did she try to break up with you? Did she tell you you were
       over?

       A. You’re – you’re going – you’re – you’re going to someplace that you have –
       all you’re going by is what your paperwork says. And I’m telling you, it was
       never nothing like that until Edna talked to Dante a couple of days later, because
       she thought . . .

       Q. Were you in the courtroom when Edna testified?

       A. Yes, I was.



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No. 48214-2-II



       Q. Okay. And you heard her say that, right?

       A. Yes, I did.

       Q. So was she lying?

       A. Well, it – it – you’re not – you’re not understanding.

       Q. Yes or no, was she lying?

       A. Yes, she is.

Report of Proceedings (RP) (Sept. 16, 2014) at 102. Brown did not object to this line of

questioning.

       The prosecutor asked Brown about an incident in which Ferry’s former boyfriend pointed

a hunting rifle at him and was arrested as a result. The following exchange then occurred:

       Q. But you didn’t give a statement when the police came back to talk to you?

       A. No, I didn’t see the police. I wasn’t there.

       Q. So you didn’t talk to the police, because talking to the police makes you a rat,
       right?

       A. No. I – you’re wrong. I had another appointment at a shake mill about picking
       up some money for some shingle blocks that I had sold and that’s where I went to.

RP (Sept. 16, 2014) at 103-04. Brown did not object to this line of questioning.

Jury Instructions

       Defense counsel and the prosecutor worked together to draft the proposed jury

instructions. The parties submitted these instructions to the trial court as “Plaintiff’s Proposed

Jury Instructions.” Clerk’s Papers (CP) at 31-41. The prosecutor stated that although the

proposed instructions still were captioned as plaintiff’s proposed instructions, “we worked on it

together and this is a joint product.” RP (Sept. 17, 2014) at 136 (emphasis added). Defense




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No. 48214-2-II


counsel did not object to that characterization and did not object to any of the proposed

instructions.

        Proposed instruction 12 provided:

        “Deadly weapon” means any weapon, device, instrument, or article, which under
        the circumstances in which it is used, attempted to be used, or threatened to be used,
        is readily capable of causing death or substantial bodily harm.

        A knife having a blade longer than three inches is a deadly weapon. Whether a
        knife having a blade less than three inches long is a deadly weapon is a question of
        fact that is for you to decide.

CP at 36. The instruction cited 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

2.07.01 (2d ed. 1994) (WPIC), the pattern deadly weapon sentencing enhancement instruction.

The trial court’s final instruction 12 was identical to the proposed jury instruction. Brown did

not object to this instruction.

Verdict and Sentencing

        The jury found Brown guilty of second degree assault and felony harassment. Brown

appeals his convictions.

                                            ANALYSIS

A.      DEADLY WEAPON INSTRUCTION

        Brown argues that the trial court erred by including language from RCW 9.94A.825 in its

jury instruction on the definition of a deadly weapon. Specifically, instruction 12 provided that

“[a] knife having a blade longer than three inches is a deadly weapon.” The State appears to

concede that the deadly weapon definition in RCW 9.94A.825 does not apply to Brown. We

hold that the instruction was erroneous, but that Brown invited the error.




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No. 48214-2-II


       1.    Definition of Deadly Weapon

       Brown was charged with second degree assault under RCW 9A.36.021(1)(c), which

requires an assault with a deadly weapon. The trial court instructed the jury that to convict

Brown, it had to find that Brown assaulted Ferry with a deadly weapon.

       RCW 9A.04.110(6) defines “deadly weapon” as “any explosive or loaded or unloaded

firearm, and shall include any other weapon, device, instrument, article, or substance . . . which,

under the circumstances in which it is used, attempted to be used, or threatened to be used, is

readily capable of causing death or substantial bodily harm.” (Emphasis added.) The trial court

incorporated this definition in the first paragraph of instruction 12.

       RCW 9.94A.825 defines “deadly weapon” to include “any knife having a blade longer

than three inches.” The trial court incorporated this definition in the second paragraph of

instruction 12. However, this definition applies only if “there has been a special allegation and

evidence establishing that the accused or an accomplice was armed with a deadly weapon at the

time of the commission of the crime,” to be determined by special verdict. RCW 9.94A.825. In

other words, RCW 9.94A.825 applies only when a deadly weapon sentencing aggravator is

charged, not when the existence of a deadly weapon is an element of the crime. See State v.

Recuenco, 163 Wn.2d 428, 434, 180 P.3d 1276 (2008).

       The trial court’s instruction defining “deadly weapon” was based on WPIC 2.07.01.

However, the title of the pattern instruction and the accompanying note on use make it clear that

the definition of a deadly weapon as “[a] knife having a blade longer than three inches” applies

only to a sentencing enhancement special verdict. WPIC 2.07.01, note on use.

       We conclude that the trial court erred in including the RCW 9.94A.825 definition of

deadly weapon as “a knife with a blade longer than three inches” in instruction 12.




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No. 48214-2-II


       2.    Invited Error

       Brown and the State jointly proposed the instruction the trial court adopted as instruction

12. Therefore, we hold that Brown invited the error.

       The invited error doctrine prohibits a party from setting up an error at trial and then

challenging that error on appeal. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P.3d

810 (2014). To determine whether the invited error doctrine applies, we consider whether the

defendant “affirmatively assented to the error, materially contributed to it, or benefited from it.”

State v. Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009). Under this test, the invited error

doctrine precludes appellate review of a defendant’s claim of instructional error when the trial

court gave the instruction at the defendant’s request. State v. Studd, 137 Wn.2d 533, 547, 973

P.2d 1049 (1999).

       Here, the prosecutor represented to the trial court that he and defense counsel had worked

together on the proposed instructions and that they were a “joint product.” RP (Sept. 17, 2014)

at 136. Defense counsel did not object to that characterization and did not object to any of the

proposed instructions, including instruction 12.

       Brown did not specifically request that the trial court give instruction 12. But he

acquiesced in the prosecutor’s representation that the parties were jointly proposing all the

instructions. Therefore, Brown at least “materially contributed” to the court’s error. Momah,

167 Wn.2d at 154.

       We hold that the invited error doctrine precludes our review of Brown’s challenge to

instruction 12.




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No. 48214-2-II


B.        PROSECUTORIAL MISCONDUCT

          Brown argues that the prosecutor committed two forms of misconduct during cross-

examination: asking him whether Ferry was lying and commenting on his right to remain silent.

We disagree.

          1.   Legal Principles

          To prevail on a prosecutorial misconduct claim, a defendant must show that the

prosecutor’s conduct was both improper and prejudicial “in the context of the record and all of

the circumstances of the trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286

P.3d 673 (2012). To establish prejudice, the defendant must “show a substantial likelihood that

the misconduct affected the jury verdict.” Id.

          Where, as here, the defendant fails to object at trial to the alleged misconduct, any error is

waived unless the defendant establishes the misconduct was “so flagrant and ill intentioned that

an instruction could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741,

760-61, 278 P.3d 653 (2012). To meet this heightened standard, the defendant must show that

(1) no curative instructions would have eliminated the prejudicial effect and (2) the misconduct

caused prejudice that was substantially likely to affect the jury’s verdict. Id. at 761.

          2.   Asking Whether Ferry Was Lying

          Brown argues that the prosecutor asking him on cross-examination whether Ferry was

lying was improper. We agree, but we conclude that Brown waived any error by failing to

object.

          It is improper for a prosecutor to ask a witness whether another witness is lying. State v.

Ramos, 164 Wn. App. 327, 334, 263 P.3d 1268 (2011). Here, the prosecutor asked Brown to

comment on whether Ferry had lied in testifying that she had tried to break up with him in




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No. 48214-2-II


January. Brown was provoked into testifying that Ferry was lying. Therefore, we conclude that

the prosecutor’s questioning was improper.

          However, the questioning involved a collateral issue – when Brown and Ferry had broken

up. Whether Ferry was lying on this issue was not central to the case. And the prosecutor did

not ask Brown whether Ferry was lying regarding the rest of her more material testimony. We

conclude that an instruction could have cured any prejudice if Brown had objected. Therefore,

we hold that Brown waived his challenge to the prosecutor’s improper questions.

          3.   Comment on Brown’s Right to Remain Silent

          Brown argues that the prosecutor impermissibly commented on Brown’s silence during

cross-examination. We disagree because the questioning related to a separate incident between

Brown and Ferry’s former boyfriend.

          Both the Fifth Amendment to the United States Constitution and article I, section 9 of the

Washington Constitution guarantee a defendant the right to be free from compelled self-

incrimination, including a right to remain silent. State v. Pinson, 183 Wn. App. 411, 417, 333

P.3d 528 (2014). A comment on the right to remain silent occurs when the State uses evidence

of the defendant’s silence to its advantage, either as substantive evidence of the defendant’s guilt

or to suggest that the silence admitted guilt. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235

(1996).

          Here, the prosecutor asked Brown, “But you didn’t give a statement when the police

came back to talk to you?” and “[Y]ou didn’t talk to the police, because talking to the police

makes you a rat, right?” RP (Sept. 16, 2014) at 104. But these questions did not relate to this

case. Instead, the questions involved an incident with Ferry’s former boyfriend, who threatened




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No. 48214-2-II


Brown with a gun. Brown was a victim in that incident, not a defendant. Therefore, the right to

remain silent did not apply. We hold that Brown’s challenge to these questions fails.

C.      CUMULATIVE ERROR

        Brown argues that cumulative errors denied him a fair trial. Under the cumulative error

doctrine, the defendant must show that the combined effect of multiple errors requires a new

trial. State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017). Here, there were two errors.

But we hold that Brown either invited or waived those errors. Therefore, we hold that the

cumulative error doctrine does not apply. See State v. Elmore, 139 Wn.2d 250, 280, 311 n. 27,

985 P.2d 289 (1999) (invited errors cannot accumulate into cumulative error).

D.      SAG CLAIMS

        In his SAG, Brown raises multiple assertions of error. We conclude that none of

Brown’s assertions have merit.

        1.   Ineffective Assistance of Trial Counsel

             a.   Legal Principles

        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee criminal defendants the right to effective assistance of

counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). We review claims of

ineffective assistance of counsel de novo. Id.

        To prevail on an ineffective assistance of counsel claim, the defendant must show both

that (1) defense counsel’s representation was deficient, and (2) the deficient representation

prejudiced the defendant. Id. at 457-58. Representation is deficient if, after considering all the

circumstances, it falls below an objective standard of reasonableness. Id. at 458. Prejudice

exists if there is a reasonable probability that except for counsel’s errors, the result of the




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No. 48214-2-II


proceeding would have differed. Id. Reasonable probability in this context means a probability

sufficient to undermine confidence in the outcome. Id.

             b.   Violation of RCW 10.79.035

        Brown asserts that he “was in County Jail for months, and nothing was filed for the

issuance of a[n] arrest warrant” under RCW 10.79.035. SAG at 2. But the record shows that the

State moved for a warrant for Brown’s arrest in July 2014. The record does not contain the

warrant itself.

        RAP 10.10(c) requires an appellant to inform this court of the “nature and occurrence of

alleged errors.” Because it is unclear what Brown is attempting to argue regarding defense

counsel’s performance in relation to the arrest warrant, this assertion is too vague to properly

inform us of the error. Therefore, we decline to address this assertion.

             c.   Violation of RCW 9A.72.085

        Brown asserts that there was “[n]othing pursuant to RCW 9A.72.085 [standards for

certifying an unsworn statement] from a victim” before his arrest. SAG at 2. But he does not

elaborate, or explain how defense counsel’s performance was deficient in relation to this

assertion. Again, this assertion is too vague to properly inform us of the error. See RAP

10.10(c). Therefore, we decline to address this assertion.

             d.   Jury Instruction 12

        Brown argues that trial counsel’s representation was ineffective because his counsel

failed to object to instruction 12. As discussed above, invited error precludes direct review of

this instruction because Brown’s defense counsel proposed the instruction at issue jointly with

the prosecutor. But invited error does not preclude ineffective assistance of counsel claims

arising from instructional error. State v. Eplett, 167 Wn. App. 660, 664, 274 P.3d 401 (2012).




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No. 48214-2-II


       The applicable definition of deadly weapon, set forth in RCW 9A.04.110(6), required the

State to prove that Brown’s knife under the circumstances in which it was used was “readily

capable of causing death or substantial bodily harm.” Instruction 12 improperly added the

definition of deadly weapon from RCW 9.94A.825: “any knife having a blade longer than three

inches.” Therefore, instruction 12 allowed the jury to convict Brown of second degree assault

regardless of whether Brown used the knife under the circumstances in which the knife was

“readily capable of causing death or substantial bodily harm,” RCW 9A.04.110(6), as long as the

knife blade was three inches long.

       Defense counsel’s conduct is not deficient if it can be characterized as legitimate trial

strategy or tactics. Estes, 188 Wn.2d at 458. But here, defense counsel had no apparent trial

strategy or tactic for proposing or failing to object to an instruction that lessened the State’s

burden to prove an element of the charged crime. Therefore, we conclude that defense counsel’s

performance was deficient. Id.

       However, there is no indication in the record that the instructional error caused Brown

any prejudice. Despite the incorrect instruction, there was no basis for the jury to conclude the

weapon used here was not used in in a manner which was “readily capable of causing death or

substantial bodily harm.” RCW 9A.04.110(6). The record reflects that Brown held a knife to

Ferry’s throat. Under these facts, the knife clearly was used in a manner consistent with the

definition of a deadly weapon under RCW 9A.04.110(6) even if its blade was less than three

inches long.

       Accordingly, we reject Brown’s ineffective assistance of counsel claim based on

instruction 12.




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No. 48214-2-II


             e.   Motion to Suppress

       Brown appears to argue that he received ineffective assistance of counsel due to trial

counsel’s failure to ask for a suppression hearing. It is unclear what Brown is attempting to

argue regarding the suppression hearing. We hold that Brown’s assertion is too vague to

properly inform us of the error. RAP 10.10(c).       Therefore, we decline to consider this assertion.

             f.   Unnecessary Delay

       Brown asserts that he received ineffective assistance of counsel due to trial counsel’s

failure to “file the necessary paperwork” with his notice of appeal. SAG at 2.

       Brown’s appeal was delayed because he failed to pay a filing fee or file an order of

indigency, resulting in a dismissal of the appeal.    Even assuming that defense counsel’s failure

to obtain and file an order of indigency was deficient, Brown does not explain how the delay

caused by this failure prejudiced his appeal in any way. And there is no indication in the record

that the delay caused any such prejudice. Therefore, we reject Brown’s assertion.

             g.   Failure to Examine Juror

       Brown argues that he received ineffective assistance of counsel because defense counsel

failed to question a juror who saw Brown in handcuffs when he was being escorted into the

courtroom.

       Before the trial court read the instructions to the jury, Brown informed the trial court that

a juror had seen him in handcuffs. The court informed defense counsel that “we can question her

to see what exactly she saw” and offered to “give her an instruction not to mention that to other

jurors during deliberations and to give no inference in any way to it.” RP (Sept. 17, 2014) at

139. Defense counsel stated, “I’m not going to ask you to take any action. I frankly think that it

just re-emphasizes the situation more than necessary.” RP (Sept. 17, 2014) at 139-40. The court




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No. 48214-2-II


gave defense counsel another opportunity to explore the issue, but defense counsel declined to

question the juror in question and stated, “Your Honor, I don’t want to re-emphasize the situation

to the juror.” RP (Sept. 17, 2014) at 140.

       Here, the tactical reason for defense counsel’s decision not to examine the juror, cited

twice to the trial court, was not to call extra attention to the fact that the defendant was in

handcuffs. Therefore, we conclude that defense counsel’s performance was not deficient in this

regard. We reject Brown’s ineffective assistance of counsel claim based on defense counsel’s

failure to examine the juror.

             h.   Probable Cause Determination

       Brown asserts that “there is no record for a probable cause determination by [a] neutral

magistrate, and no record to challenge.” SAG at 3. He apparently blames this problem on

defense counsel.2 But the record contains the Motion and Declaration for Order for Warrant of

Arrest from the State, which provided the grounds for his arrest.

       We conclude that Brown’s assertion is too vague to properly inform us of the error

because it is unclear what Brown is attempting to argue. RAP 10.10(c). Therefore, we decline

to address this assertion.

       2.    Ineffective Assistance of Appellate Counsel

       Brown appears to assert that he was deprived of effective assistance of appellate counsel.

He claims that there was a lack of communication between him and his attorney that prevented

him from “looking at issues of [his] case,” performing his own research, and “review[ing] any

action before [counsel] file[d] in court.” SAG at 3.




2
 This assertion is made in the section of Brown’s SAG discussing ineffective assistance of
appellate counsel, but this claim seems to involve defense counsel.


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No. 48214-2-II


        Brown attached three letters he sent to his appellate counsel to his SAG. However, we

may consider only facts contained in the record when addressing an ineffective assistance

claim.” Estes, 188 Wn.2d at 467. Brown’s letters and appellate counsel’s responses to Brown

are outside the record. Therefore, we decline to consider this assertion. Id.

                                         CONCLUSION

        We affirm Brown’s convictions.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     MAXA, P.J.



 We concur:



 GLASGOW, J.




 CRUSER, J.




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