                                                                               FILED
                                                                         COURT OF APPEALS
                                                                             DIVISION SI

                                                                       2015 APR - 7    AM 9: 22

                                                                        STATE OF WASHINGTON

                                                                         BY      to
    IN THE COURT OF APPEALS OF THE STATE OF WAS                                     lI'
                                                                                      ON

                                         DIVISION II

 STATE OF WASHINGTON,                                               No. 45391 -6 -II


                               Appellant,


        v.

                                                             UNPUBLISHED OPINION
MARCUS R. LANGFORD,


                               Respondent.




       MAxA, P. J. —   Marcus Langford appeals his conviction and sentence for first degree


felony murder. The conviction arose from an attempted robbery in which Langford' s friend J. J.

Stimson shot and killed a man that he and Langford had encountered. The trial court allowed a


witness to testify that Stimson told her in Langford' s presence that he and Langford had intended

to rob a man. The trial court ruled that the testimony regarding Stimson' s statement was

conditionally admissible as an adoptive admission under ER 801( d)( 2)( ii) because there was

sufficient evidence that Langford had adopted Stimson' s statement by remaining silent while and

after Stimson made the statement.


       Langford argues that ( 1) the trial court erred by giving an erroneous jury instruction

regarding the jury' s consideration of Stimson' s statement, and (2) Langford' s attorney provided

ineffective assistance of counsel by helping to draft and not objecting to the erroneous jury

instruction.
45391 -6 -II




        We do not directly address whether the jury instruction was erroneous because Langford

invited any error and did not raise the issue in the trial court. However, we hold that defense

counsel provided ineffective assistance by helping to draft and failing to object to the erroneous

instruction that clearly misstated the law. Accordingly, we reverse Langford' s conviction and

remand for a new trial.'


                                              FACTS


Facts of the Shooting Incident

        Langford and Stimson were walking back from a party in November 2012 when they

came upon David Watson on the ground near his pickup truck at a gas station convenience store.

The store' s surveillance camera captured the encounter. Watson exchanged words with Stimson

and Langford and eventually got into the truck. Stimson stood at the driver' s door, apparently

conversing with Watson. Langford stood beside Stimson. Stimson suddenly reached into the

truck and shot Watson with a firearm. Stimson and Langford ran from the scene, and Watson


drove away. Shortly thereafter, Watson died from a gunshot wound to the chest.

        The State charged Langford as an accomplice with first degree felony murder, with

attempted robbery as the predicate crime. The State also alleged a sentencing enhancement




1 Langford also argues that ( 1) the trial court erred in admitting testimony about Stimson' s
statement that he and Langford had intended to rob a man, ( 2) his attorney provided ineffective
assistance of counsel by failing to initially object to that testimony, ( 3) his attorney provided

ineffective assistance by failing to raise a statutory affirmative defense to felony murder, (4)
there was insufficient evidence to support a firearm sentencing enhancement and the trial court
made instructional errors regarding that enhancement, and ( 5) the trial court erred when it
directed the jury to continue deliberating after the presiding juror informed the trial court that the
jury was hopelessly deadlocked. Because we reverse on other grounds, we do not address these
arguments.



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because Stimson had been armed with a firearm during the crime. Stimson was charged as the

principal with first degree felony murder and originally was Langford' s codefendant, but

Stimson pleaded guilty to a lesser charge before the case went to trial.

Testimony About Stimson' s Statement

         At trial, Stimson' s former girlfriend, Tajanae Williams, testified that Stinson and


Langford visited her apartment shortly after the crime. She stated that she was sitting in between

Stimson and Langford on her bed when Stimson " said that him and Marcus were going to rob

this guy   and   take his truck, but    they didn' t." Report    of   Proceedings ( RP)   at   481.   The trial court


asked   her to   repeat   the   statement, and she reiterated, "   JJ said they are going to rob this guy for

his truck, but they didn' t." RP        at   481.   She further testified that when Stimson made the


statement, Langford just looked at her with a " blank stare" and said nothing. RP at 482.

Langford then asked Williams to help him download music onto her computer.

         Langford later moved to strike Williams' testimony about Stimson' s statement on

grounds that it was a statement by a nontestifying codefendant. The trial court denied the

motion, making a threshold determination that sufficient evidence supported a finding that

Langford had adopted Stimson' s incriminating statement by remaining silent. The trial court

explained that Stimson' s statement was admitted only as Langford' s adoptive admission and was

subject to a conditional relevance finding by the jury that Langford in fact adopted the statement.

Jury Instructions

           Langford proposed jury instructions intended to limit the jury' s consideration of

Williams' testimony about Stimson' s statement.. One of the proposed instructions was based on
WPIC 6. 05, the pattern instruction to be given when a codefendant has testified at trial in a


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manner       that incriminates the    defendant. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN


JURY INSTRUCTIONS: CRIMINAL 6. 05,             at   241 ( 3d   ed.   2008) ( WPIC). The trial court was


uncomfortable with Langford' s instruction as proposed, so Langford and the State both


participated in drafting a modified instruction based on the WPIC 6. 05 instruction. Both parties

ultimately agreed to the modifications and chose not to object to the final language of the

instruction. The trial court gave the jury the modified instruction.

Verdict and Sentence


          The jury found Langford guilty of first degree felony murder and found that a firearm

was used in the commission of the crime within the meaning of the sentencing enhancement

statute. The trial court sentenced Langford to 340 months confinement, which included a


mandatory 60 months for the firearm enhancement. Langford appeals his conviction and

sentence.




                                                      ANALYSIS


A.           ADOPTIVE ADMISSION —GENERAL PRINCIPLES


             Stimson'   s statement   to Williams —that Langford and Stimson intended to rob a man —


was an out -of c- ourt statement offered for its truth. Ordinarily, an out -of c- ourt statement offered

for its truth is inadmissible     hearsay.    ER 802, 801(         c).   However, ER 801( d)( 2)( ii) provides that


an out of court statement is not hearsay when a party " has manifested an adoption or belief in its

truth."      In this situation, the adopted statement is treated as the adopting party' s own words.

State   v.   Cotten, 75 Wn.    App. 669, 689, 879      P. 2d 971 ( 1994).        The original statement is not


hearsay because it is not admitted to prove the truth of the matter asserted. State v. Neslund, 50




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Wn.    App.   531, 555, 557, 749 P. 2d 725 ( 1988).       Instead, the statement is admitted to lay the

foundation for showing the party' s failure to deny it. Id. at 555.

            A party may manifest adoption of another' s statement expressly, or by implication of his

words or actions. Id. at 550. Further, Division One of our court in Neslund held that a party may

                                  by             if the party ( 1) heard the   incriminating   statement, (   2) was
implicitly    adopt a statement        silence




mentally and physically able to respond, and ( 3) reasonably would have responded under the

circumstances had there been no intention to acquiesce. Id. at 550 -51; see also Cotten, 75 Wn.


App.   at   689 ( adopting the Neslund    approach).     Nevertheless, the court recognized the " inherently

equivocal nature of silence" and warned that " such evidence must be received with caution."


Neslund, 50 Wn. App. at 551. 2

            The court in Neslund also held that whether a party has adopted a statement for purposes

of ER 801( d)( 2)( ii) is " a matter of conditional relevance to be determined ultimately by the jury."

Id. at 551 -52. To implement this approach, the court identified a two -step procedure for

admitting statements a party adopted by silence. First, the trial court makes a preliminary

determination that " there are sufficient foundational facts from which the jury reasonably could

conclude that the defendant actually heard, understood, and acquiesced in the statement" and the

circumstances are such that an innocent defendant normally would be induced to respond. Id. at

551.    Second, if the trial court makes this determination and the statement is admitted into

evidence, the jury must determine as a matter of fact whether the party heard, understood, and




2 Langford asks us to overrule Neslund and Cotten and hold that a party cannot adopt an out -of-
court statement by silence under ER 801( d)( 2)( ii). Because we reverse on other grounds, we do

not address the validity of the adoption by silence rule.
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acquiesced     in the   statement   by choosing   not   to   respond.   Id.   at   551 - 52.   Only if the jury finds that

the defendant heard, understood, and acquiesced in the statement can it consider the statement


for its truth during its deliberations.3 Id.

         Here, the trial court expressly found that the State had established a sufficient foundation

for the jury to reasonably conclude that Langford adopted Stimson' s statement, and therefore

ruled that Williams' testimony regarding the statement was conditionally admissible. The issue

we address is whether the trial court properly instructed the jury regarding consideration of this

conditionally relevant evidence.


B.    ADOPTIVE ADMISSION INSTRUCTION


         1.     Trial Court Error


         Langford argues that the trial court erred by giving an erroneous instruction regarding the

jury' s consideration of Stimson' s statement. However, Langford' s counsel proposed the

instruction the trial court later adopted after modifications, participated in drafting the modified

instruction, and did not object to giving that modified instruction to the jury. Therefore,.

Langford both invited any error and failed to raise this argument in the trial court.

         We do not consider any error that is invited by the appealing party. See State v. Hyder,

159 Wn.       App.   234, 250, 244 P. 3d 454 ( 2011).         We also generally do not consider arguments

raised   for the first time   on appeal.   RAP 2. 5(    a).    Therefore, we do not directly address Langford' s

jury instruction argument.



3 Langford asks us to reject the Neslund approach and hold that the trial court must determine the
admissibility of alleged adoptive admissions rather than allowing the jury to determine
admissibility under conditional relevance procedures. Because we reverse on other grounds, we
do not address the validity of Neslund' s conditional relevance approach.

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         2.      Ineffective Assistance of Counsel


         Langford alternatively argues that his attorney provided ineffective assistance of counsel

because he helped draft and failed to object to an erroneous jury instruction regarding the jury' s

consideration of Stimson' s statement. We hold that defense counsel' s representation was

deficient and prejudiced Langford, and therefore that Langford was denied his right to effective

assistance of counsel.



                 a.        Legal Principles


         The Sixth Amendment to the United States Constitution and article 1, section 22 of the

Washington Constitution guarantee a criminal defendant' s right to effective assistance of


counsel.      State   v.   Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 ( 2011).     Where a criminal defendant


has been denied effective assistance of counsel, we will reverse any resulting conviction and

remand for a new trial. Id.


         We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on such a claim, the defendant must show that


 1) defense counsel' s representation was deficient, and ( 2) the deficient representation prejudiced

the defendant. Grier, 171 Wn.2d •at 32 -33.             Representation is deficient if, after considering all

the   circumstances,        it falls below   an objective standard of reasonableness.   Id.   at   33.   Prejudice


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

proceeding would have differed. Id. at 34. Reasonable probability in this context means a

probability sufficient to undermine confidence of the outcome. Id.




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                b.    Deficient Performance


        Langford argues that his counsel' s performance fell below an objective standard of


reasonableness because his counsel helped draft, and ultimately agreed to, a jury instruction that

misstated the applicable law. We agree.


        A jury instruction must properly inform the jury of the applicable law. Stale v. Mills, 154

Wn.2d 1, 7, 109 P. 3d 415 ( 2005).     An instruction that misstates the law is erroneous. State v.


Clausing,      147 Wn.2d 620, 628, 56 P. 3d 550 ( 2002).      An attorney has a duty to research the

applicable law and should reasonably appreciate an error of law in a jury instruction. See State v.

Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


        Under Neslund, the jury is responsible for determining whether a party has adopted

                          - ourt statement under
another person' s out -of c                          ER 801( d)( 2)( ii).     50 Wn. App. at 551 -52. The

jury must decide whether the party adopted the statement by determining whether the party

actually heard,      understood, and acquiesced   in the   statement.   Id.   at   551. This procedure


necessarily means that if the jury decides that a party did not adopt a statement, it cannot

consider that statement for the truth of the matter asserted therein.


        Here, the trial court worked with both parties to draft an instruction addressing

Langford' s alleged adoption of Stimson' s statement. The language of the instruction originated

with Langford' s proposed instruction based on WPIC 6. 05, the pattern instruction to be given




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45391 -6 -II




when a codefendant has testified at trial in a manner that incriminates the defendant.4 To adapt

the proposed instruction to the situation presented in this case, the trial court simply changed

references to an accomplice' s " testimony" to " alleged statements" and added language

instructing the jury to determine whether the statements were made and whether the defendant

knowingly      acquiesced   in them. RP      at   651.   The resulting instruction (instruction 9) stated:

          Alleged statements of an accomplice should be subjected to careful examination in
          the light of other evidence in the case, and should be acted upon with great caution.
          You should not find the defendant guilty upon such alleged statements alone unless
          after carefully considering the statements, you are satisfied beyond a reasonable
          doubt of its truth.


          It is for the jury to determine if such statements were made and whether those
          statements, in light of all the circumstances, were heard, understood and acquiesced
          by the defendant.

Clerk' s Papers ( CP) at 60.


          However, instruction 9 did not explain the Neslund procedure to the jury. The

instruction' s second paragraph stated the adoptive admission elements. But the instruction did


not inform the jury that it could not consider Stimson' s statement for any purpose if it found that

Langford had not heard, understood, or acquiesced in the statement. Instead, the instruction


stated that the jury could find Langford guilty.based on Stimson' s statement alone if the jury was

    satisfied beyond a reasonable doubt of its truth" without finding that Langford had adopted the

statement. CP at 60.




4
 The proposed instruction, identical to WPIC 6. 05, stated: " Testimony of an accomplice, given
on behalf of the State should be subjected to careful examination in the light of other evidence in
the case, and should be acted upon with great caution. You should not find the defendant guilty
upon such testimony alone unless, after carefully considering the testimony, you are satisfied
beyond     a reasonable   doubt   of   its truth." Clerk'   s   Papers   at   31.
45391 -6 -II




         By giving this instruction, the trial court told the jury that it could find Langford guilty

based on Stimson' s statement alone if the jury found that Stimson' s statement was true. The

language implicitly characterized Langford' s knowing acquiescence as a component in that truth

determination, not as a threshold requirement for considering the statement as evidence. The

instruction should have informed the jury that it could not consider the truth of Stimson' s

statement unless it found that Langford adopted that statement. As a result, the instruction


clearly misstated the law.

         Langford' s counsel proposed the language that misstated the law and failed to object to

the erroneous instruction. As a result, we hold that Langford' s counsel' s performance was

deficient.


               c.   Prejudice


         Langford argues that the erroneous jury instruction prejudiced him because it allowed the

jury to consider Stimson' s statement without finding that Langford adopted the statement. We
agree.




         The evidence that Langford adopted Stimson' s statement was not particularly strong.

Although Langford was sitting on the bed with Williams and Stimson, he did not participate in

their conversation. And Langford just stared blankly when Stimson made the statement and then

acted as if no statement had been made by talking about downloading music. This evidence

would have allowed the jury to find that Langford did not hear, understand,. or acquiesce in

Stimson' s statement. Based on the minimal evidence that Langford adopted Stimson' s


statement, there is a reasonable probability that the jury would not have considered Stimson' s

statement if instructed properly.


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        Stimson' s statement was the State' s primary evidence showing that Langford was aware

of or participated in a plan to rob the victim. Therefore, if the jury had not considered Stimson' s

statement, there is a reasonable probability that it would have reached a different verdict.

Accordingly, we hold that Langford was prejudiced by his attorney' s deficient performance in

helping draft and failing to object to the erroneous jury instruction.

        We reverse Langford' s conviction and sentence and remand for a new trial.


        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.




We concur:




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