                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          April 30, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 51037-5-II

                               Respondent,

        v.

 CARLOS JERMAINE HULL,                                        UNPUBLISHED OPINION

                               Appellant.

       MELNICK, P.J. — Carlos Hull appeals his convictions for assault in the first degree (two

counts), assault in the second degree, and unlawful possession of a firearm in the first degree. The

assault convictions included firearm enhancements. The convictions arose out of a nighttime

shooting which left three people seriously injured.

       Hull argues that the State’s eyewitnesses misidentified him and that the court erred by

instructing the jury on the reliability of eyewitness identification testimony, which included a

factor regarding “the witness’s familiarity or lack of familiarity with people of the perceived race

or ethnicity of the perpetrator of the act.” Clerks Papers (CP) at 83. He contends that the jury

instruction constituted a comment on the evidence. He also argues that the court abused its

discretion by giving the instruction and that the instruction violated his rights under the Sixth

Amendment of the United States Constitution.

       We affirm.
51037-5-II


                                              FACTS

       One evening, Brandon Walker, Shane Giannini, and Randy Stone went to a sports bar in

Tacoma. Hull and a group of friends also went to the bar. Walker and his friends are white. Hull

and his friends are black.1

       As Walker, Giannini, and Stone left the bar and went to the parking lot, a verbal

confrontation occurred between the two groups. Shortly thereafter, it appeared the two groups

made amends, and Walker, Giannini, and Stone turned to leave. Then, someone, later identified

as Hull, hit Walker in the back of the head with either his fist or a pistol. The hit knocked Walker

unconscious.

       The assailant2 then fired a gun at Stone, hitting him with multiple bullets, including one in

his right arm, one in his left hip, and one in his left femur. One of the bullets went through Stone

and struck Giannini in the right arm.

       The police arrived shortly thereafter. They accessed two surveillance videos from the night

of the incidents. One video showed the entry way inside the bar.

       Tony Chambers, the manager of a nearby business, Rachel Kershaw, a server at the bar,

and Jermaine Berry, a cook at the bar, witnessed the incident. Chambers and Berry are black;

Kershaw is white.




1
  The legal issue in this case involves a jury instruction that discussed, among other factors, how
the reliability of eyewitness identification is affected by whether the eyewitness is of the same or
different race or ethnicity than the defendant. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 6.52, at 212 (4th ed. 2016) (WPIC). Thus, the witnesses’ and
defendant’s race or ethnicity are relevant. We recognize that different terms were used to describe
people’s race or ethnicity at trial. We use prevailing terminology and intend no disrespect.
2
 Two of the three eyewitnesses testified that the shooter was the same person as the one who hit
Walker.


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          Chambers described the assailant as approximately 6 feet 2 inches to 6 feet 3 inches. He

had braids that did not reach down to his shoulders. He wore all-blue sweats, both pants and top,

and Jordan-brand shoes.

          Shortly after the shooting, the police arrived. They asked Chambers if he could identify

the assailant. After being shown surveillance footage, Chambers pointed out the assailant to the

police.

          Kershaw witnessed the incidents while standing in the bar’s beer garden. Kershaw smoked

marijuana with the assailant shortly before the assaults. While smoking, the shooter pulled a gun

out of his sweat pants. Kershaw backed away and told him to put the gun away. The shooter then

approached a group of white males in the parking lot and put the gun back into his sweat pants.

          Kershaw saw approximately 15 black males in the parking lot. Kershaw observed the

assailant hit one of the white men on the back of the head with either his fist or a gun and then fire

on the other men. After the gunshots, Kershaw ran inside. She did not see the assailant leave the

scene.

          Kershaw described the assailant as a “[t]all, African American male . . . wearing blue sweat

pants and [a] matching sweat hoodie.” Report of Proceedings (RP) (July 11, 2017) at 32. He was

approximately 6 feet tall and weighed close to 180 pounds. He had a gap in his front teeth. His

hair was in “little twisty or braids” that were “a couple inches long.” RP (July 11, 2017) at 34.

          Berry worked at the bar the night of the assaults. After finishing work, Berry drank a beer

in the bar’s beer garden. Berry heard a “loud pop.” 5 RP at 362. He turned around and saw

fighting. Berry saw the assailant pull a gun from his waistband and begin shooting.

          Berry then saw the assailant exit the parking lot, driving alone in a silver Chevrolet Impala.

The car had silver rims and no window tint. Approximately five months after the assaults, a Pierce



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County sheriff pulled over Hull driving a silver 2007 Chevrolet Impala, which “had tire rims that

were silver in color, and it had no tinting on the windows.” CP at 75. The car was registered to

Hull’s mother.

        Berry described the shooter as approximately 6 feet 1 inch to 6 feet 2 inches. He had short

braids that did not reach his shoulders. He wore a navy blue or black sweater.

        Approximately seven months after the incident, the police separately showed Chambers

and Berry the same photo montage. It included Hull and five other individuals. Neither Chambers

nor Berry identified Hull. The police never showed Kershaw the photo montage.

        From the bar’s surveillance video that the police had accessed, they generated still images.

Approximately 10 months after the incident, the police interviewed Hull and showed him the stills.

Hull identified himself as the same person Chambers had identified as the shooter.

        The State charged Hull with two counts of assault in the first degree, one count of assault

in the second degree, and unlawful possession of a firearm in the first degree. The assault charges

carried firearm enhancements.

        Hull pleaded not guilty and proceeded to trial.

        Walker, Giannini, and Stone all testified but none made an in-court identification of the

assailant.

        However, Chambers, Kershaw, and Berry all identified the shooter on the surveillance

video when they reviewed it during trial. Chambers was “[p]ositive” that the person he identified

was the assailant. 4 RP at 252. Kershaw was “[c]ompletely certain” that the person she pointed

out in the video was the assailant. RP (July 11, 2017) at 70. Berry was 100 percent certain that

the person he identified in the video was the assailant.




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51037-5-II


       Hull denied having any involvement in an altercation on the evening of the assaults. He

stated that he went to the sports bar, shared a shot of tequila with Stone, and then left in a friend’s

vehicle. He further stated that he did not have access to his mother’s Chevrolet Impala on the date

of the incident.

       As relevant, the court instructed the jury:

               Eyewitness testimony has been received in this trial on the subject of the
       identity of the perpetrator of the crime charged. In determining the weight to be
       given to eyewitness identiﬁcation testimony, in addition to the factors already given
       you for evaluating any witness’s testimony, you may consider other factors that
       bear on the accuracy of the identiﬁcation. These may include:
            The witness’s capacity for observation, recall and identiﬁcation;
            The opportunity of the witness to observe the alleged criminal act and the
       perpetrator of that act;
            The emotional state of the witness at the time of the observation;
            The witness’s ability, following the observation, to provide a description of
       the perpetrator of the act;
            The witness’s familiarity or lack of familiarity with people of the perceived
       race or ethnicity of the perpetrator of the act;
            The period of time between the alleged criminal act and the witness’s
       identiﬁcation;
            The extent to which any outside influences or circumstances may have
       affected the witness’s impressions or recollection; and
            Any other factor relevant to this question.

CP at 83 (Instr. 4). The State proposed this instruction, and Hull excepted to the court giving it.

This instruction was a verbatim copy of 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 6.52, at 212 (4th ed. 2016) (WPIC).

       Hull argued in closing that this case was entirely about misidentification. He argued that

the shooter was misidentified in the video, as evidenced by Chambers’s, Kershaw’s, and Berry’s

inconsistent descriptions of the shooter. He argued that Chambers’s and Berry’s photo montage

misidentifications further indicated that their identifications were unreliable.

       In its rebuttal closing, the State relied on instruction 4 to argue that because Hull,

Chambers, and Berry are all black, Chambers’s and Berry’s identifications of Hull are reliable.


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51037-5-II


          The jury found Hull guilty on all counts. CP at 110-16. The jury returned special verdicts

finding Hull guilty of firearm enhancements for his assault convictions.

          The court sentenced Hull to 365 months of confinement. Hull appeals.

                                             ANALYSIS

I.        NO COMMENT ON THE EVIDENCE

          Hull argues that the court impermissibly commented on the evidence by giving instruction

4. We disagree.

          We review jury instructions de novo to determine whether the trial court improperly

commented on the evidence. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). “Judges

shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the

law.” WASH. CONST. art. IV, § 16. “A jury instruction that does no more than accurately state the

law pertaining to an issue . . . does not constitute an impermissible comment on the evidence.”

State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046 (2001). However, an instruction that could

lead the jury to infer that the trial court believed or disbelieved a witness constitutes an

impermissible comment on the evidence. State v. Faucett, 22 Wn. App. 869, 876, 593 P.2d 559

(1979).

          In State v. Allen, 161 Wn. App. 727, 744-45, 255 P.3d 784 (2011), aff’d, 176 Wn.2d 611,

294 P.3d 679 (2013), the court recognized that properly drafted jury instructions cautioning juries

about the potential unreliability of cross-racial eyewitness identification are not comments on the

evidence. The court relied on State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974), disapproved

on other grounds by State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984).

          Carothers analyzed whether the court impermissibly commented on the evidence when it

instructed the jury about the testimony of an accomplice.



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51037-5-II


               An instruction to view the testimony of an accomplice with caution is an
       indication not of the judge’s attitude toward the testimony of a particular witness,
       but of the attitude of the courts generally toward the testimony of witnesses of this
       type. It is an attitude which has been garnered from many years of observation of
       the prosecutorial process. The courts have an expertise upon this subject, which
       the ordinary citizen cannot be expected to have. They have observed that innocent
       persons may be sent to prison or to death upon the testimony of an accomplice. At
       the same time such testimony is not invariably false and it may be the only proof
       available.

Carothers, 84 Wn.2d at 267-68.

       In Allen, the court recognized that “[t]he rationale applied in Carothers could apply in

equal force to a cross-racial eyewitness identification instruction.” Allen, 161 Wn. App. at 745.

       In a splintered opinion, the Supreme Court affirmed. Allen, 176 Wn.2d at 632. All nine

justices agreed that, in certain circumstances, cross-racial identification jury instructions may be

appropriate. Allen, 176 Wn.2d at 624 (plurality opinion); 176 Wn.2d at 632 (Madsen, C.J.,

concurring); 176 Wn.2d at 634 (Chambers, J., concurring); 176 Wn.2d at 635-36 (Wiggins, J.,

dissenting).

       Here, the court’s instruction 4 was modeled in response to the Supreme Court’s unanimous

support for such instructions. See WPIC 6.52 cmt. at 213. The model jury instruction was based

upon a California jury instruction cited in Allen. 176 Wn.2d at 617 n.3; WPIC 6.52 cmt. at 213.

The Washington Supreme Court Committee on Jury Instructions then modified the California

instruction “[w]ith a view to juror comprehension and neutrality of phrasing, and [to comply with]

Washington’s prohibition on judicial comments on the evidence.” WPIC 6.52 cmt. at 213.

       Because instruction 4 was “an indication not of the judge’s attitude toward the testimony

of a particular witness, but of the attitude of the court[] generally toward the testimony of witnesses

of this type,” we conclude that the trial court did not impermissibly comment on the evidence.

Carothers, 84 Wn.2d at 268.



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51037-5-II


II.       NO ABUSE OF DISCRETION

          Hull argues that the trial court erred in giving instruction 4 because no “eyewitness

identification testimony” existed and thus the evidence did not support the instruction. Br. of

Appellant at 13.3 We disagree.

          Jury instructions are appropriate if they allow the parties to argue their theory of the case,

do not mislead the jury, and do not misstate the law. State v. Stevens, 158 Wn.2d 304, 308, 143

P.3d 817 (2006). We review de novo whether the jury instructions adequately state the applicable

law. Stevens, 158 Wn.2d at 308.

          We review whether evidence supports giving a jury instruction for an abuse of discretion.

State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998); State v. Green, 182 Wn. App. 133,

152, 328 P.3d 988 (2014). A trial court abuses its discretion only where its decision is manifestly

unreasonable or based on untenable reasons. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255

(2001). A party is entitled to a jury instruction on a theory of the case when evidence exists in the

record to support the party’s theory. State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986).

A party is not entitled to an instruction that is not supported by the evidence. Hughes, 106 Wn.2d

at 191.

          We conclude that Chambers’s, Kershaw’s, and Berry’s testimonies constituted “eyewitness

identification testimony.” “Eyewitness identification” is defined as: “A naming or description by

which one who has seen an event testifies from memory about the person or persons involved.”

BLACK’S LAW DICTIONARY 626 (8th ed. 2004).


3
  Hull also argues that that the court erred by giving the instruction because WPIC 6.52 was crafted
to caution juries about the unreliability of cross-racial eyewitness identifications, not to bolster the
reliability of same-race eyewitness identification, as the instruction was used here. The State
argues that the proper framework for Hull’s argument is a claim of prosecutorial misconduct. We
agree with the State.


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51037-5-II


         Clearly, the testimony of Chambers, Kershaw, and Berry all described the incident based

on their memories of it. They described the man who assaulted Walker, and who shot Stone and

Giannini. They identified the shooter on the bar’s surveillance video. It is immaterial that no in-

court identification occurred because Hull admitted he was the man the witnesses identified in the

video.

         Based on the facts presented here, and after reviewing the court’s instruction to the jury,

we also conclude that the evidence supported giving the instruction.

         Relevant factors for the jury to consider included:

              The witness’s capacity for observation, recall and identiﬁcation;
              The opportunity of the witness to observe the alleged criminal act and the
             perpetrator of that act;
              The emotional state of the witness at the time of the observation;
              The witness’s ability, following the observation, to provide a description of
             the perpetrator of the act;
              The witness’s familiarity or lack of familiarity with people of the perceived
             race or ethnicity of the perpetrator of the act;
              The period of time between the alleged criminal act and the witness’s
             identiﬁcation;
              The extent to which any outside influences or circumstances may have
             affected the witness’s impressions or recollection; and
              Any other factor relevant to this question.

CP at 83.

         The following summary of the evidence demonstrates the relevance to the various factors.

Kershaw admitted to smoking marijuana shortly before the incident. Berry admitted to drinking

alcohol at the time he witnessed the incident.

         Kershaw and Berry observed the incident from the bar’s beer garden, approximately 50

feet away from the assaults. Kershaw discussed how her eyesight diminishes when objects are

further than five feet away. She also was not wearing glasses on the night of the incident.




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Chambers observed the incident while standing by the front door of the bar. Shortly after the

incident, Chambers reviewed the surveillance video and identified the shooter to the police.

       Chambers and Berry are the same race as Hull. Kershaw is not.

       Chambers and Berry made misidentifications when shown photo montages seven months

after the incident. Trial occurred approximately 23 months after the incident.

       Each of the above facts were relevant to one or more factors contained in instruction 4.

Thus, the evidence supported the instruction, and the trial court did not abuse its discretion.

III.   SIXTH AMENDMENT

       Hull argues that the trial court violated his Sixth Amendment right to control strategic

decisions in his case by giving instruction 4 over his objection. We disagree.

       The Sixth Amendment to the United States Constitution precludes interfering with a

defendant’s autonomy to present a defense. State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400

(2013). To respect the defendant’s dignity and autonomy, the Sixth Amendment recognizes the

defendant’s right to control important strategic decisions. McKaskle v. Wiggins, 465 U.S. 168,

176-77, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); Coristine, 177 Wn.2d at 376.

       Hull relies on Coristine for support. In Coristine, the defendant did not propose the

“reasonable belief” affirmative defense instruction to his rape in the second degree charge. 177

Wn.2d at 374. The court gave the instruction over his objection. Coristine, 177 Wn.2d at 374.

The jury found the defendant guilty, and the defendant appealed. Coristine, 177 Wn.2d at 375.

       The court held that “[i]nstructing the jury to consider an affirmative defense over the

defendant’s objection interferes with the accused’s right to present a chosen defense.” Coristine,

177 Wn.2d at 378. Therefore, the court concluded that “[b]ecause [the defendant] validly waived




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51037-5-II


his right to mount a reasonable belief affirmative defense, the trial court violated his Sixth

Amendment rights when it failed to respect his decision.” Coristine, 177 Wn.2d at 379.

       Hull misinterprets Coristine. He relies on the following quote, “‘the defendant’s right to

control important strategic decisions,’” but interprets it too broadly. Br. of Appellant at 11 (quoting

Coristine, 177 Wn.2d at 376). Coristine only recognized that

       [a]n affirmative defense places a burden of proof on the defendant, thus shaping the
       defense by introducing elements it must prove. This process may influence a wide
       range of strategic trial decisions, such as who is called to testify, the questions asked
       on direct and cross-examination, and what arguments are made in summation.

177 Wn.2d at 378. Therefore, the court concluded that “the decision to offer an affirmative defense

cannot be forced on an unwilling defendant” because “[t]he Sixth Amendment places this

important strategic decision squarely in the hands of the defendant, not the prosecutor or the trial

court.” Coristine, 177 Wn.2d at 378.

       Coristine is distinguishable from the present case. Most importantly, in Coristine, the issue

involved the giving of an affirmative defense jury instruction over the defendant’s objection.

       Here, the jury instruction at issue did not involve an affirmative defense that Hull had not

chosen to assert. The instruction did not place a burden of proof on Hull. Rather, the instruction

told the jury factors it could consider in evaluating the reliability of eyewitness identification

testimony. Hull fails to show how giving instruction 4 over his objection rises to a similar level

of implicating important strategic trial decisions.

       We conclude that giving instruction 4 over Hull’s objection did not implicate the type of

important strategic decisions at issue in Coristine. Therefore, we conclude that instruction 4 did

not violate Hull’s rights under the Sixth Amendment.




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51037-5-II


        We affirm.

        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.




                                                            Melnick, P.J.

We concur:




        Sutton, J.




        Glasgow, J.




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