      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                    )
                                        )       No. 76119-6-1
             Respondent,                )
                                        )       DIVISION ONE
      v.                                )
                                        )       UNPUBLISHED OPINION
STEVEN M. MARSHALL,                     )
                                        )
             Appellant.                 )       FILED: March 25, 2019
                                        )
      LEACH, J. — Steven M. Marshall appeals his convictions for murder in the

first degree and second degree unlawful possession of a firearm. Marshall filed

pro se motions with the trial court while counsel represented him. He claims that

testimony about these motions violated his constitutional right to access the

courts and ER 403. He also contends that the prosecutor committed prejudicial

misconduct when she elicited a lay witness's opinion about his guilt.

      First, because a criminal defendant does not have a constitutional right to

hybrid representation, testimony about Marshall's pro se motions did not penalize

him for exercising his constitutional rights to access the courts. And Marshall did

not preserve his ER 403 claim for appeal because he did not raise it in the trial

court. Second, when, as here, defense counsel does not object at trial to the

alleged prosecutorial misconduct, the defendant must show that the misconduct
No. 76119-6-1/ 2


was so flagrant and ill-intentioned that a jury instruction would not have cured

any prejudice. Because Marshall does not show this, we affirm.

                                       FACTS

       Ryan Prince helped Michael Helsel-Perkins (Perkins) build medical

marijuana dispensaries and manage the dispensaries' employees. Prince lived

with Perkins and Perkins's girlfriend, Chelsea Dew, at a house in Renton.

Perkins had an alarm system installed at the house. The security system's digital

video recorder(DVR) was in a downstairs closet.

       On February 17, 2014, Prince arrived home around 8:00 p.m. and

disarmed the alarm system. No one else was home. Neighbor James McDonald

heard gunshots at Prince's house close to 8:00 p.m.            McDonald texted a

neighbor at 8:11 p.m., asking if his neighbor also had heard them. He called 911

around 8:20 p.m. From McDonald's balcony, he thought he heard voices or

wrestling and saw the silhouettes of more than one person in Prince's house. He

testified that before the police arrived, all the lights went off at Prince's house

"like they were killed with a circuit breaker."

       When Deputy William Brown arrived at Prince's house, he saw Prince's

vehicle parked in front of the garage with a dry spot next to it where it looked like

another car had been parked. All the lights in the house were off. No one

answered the door, so Brown left.


                                          -2-
No. 76119-6-1/ 3


      Dew returned home later that night and found Prince on the floor in his

bedroom with a bloody face and blankets covering his body. Dew called 911.

Prince was pronounced dead at the scene. Police collected a pair of broken

Burberry-brand eyeglasses on the front porch, which Dew testified did not belong

to her, Perkins, or Prince. Both Marshall's brother and ex-wife testified that

Marshall sometimes wore Burberry glasses. The only latent print on the glasses

matched Marshall's thumb. Someone had removed the alarm system's DVR

from the downstairs closet. Police found $27,000 in cash in Prince's backpack in

his bedroom.

      Police also found a 40-caliber bullet embedded in the bathroom closet, a

40-caliber shell casing just outside the house, a 22-caliber casing in a groove

between planks on the porch and on the downstairs landing, a 380-caliber casing

in the dining room, and a 40-caliber casing in the dining room. A medical

examiner performed an autopsy on Prince and determined that he died from

multiple gunshot wounds. She found four gunshot wounds and recovered three

bullets from Prince's body.

      Police found Prince's cell phone off the side of the road near his house.

On Prince's phone they discovered a photograph of a vehicle taken at 8:10 p.m.

the night of his murder. The license plate number belonged to a Chrysler PT

Cruiser registered to Allison Sierra, Marshall's ex-wife.    She testified that


                                      -3-
No. 76119-6-1 / 4


Marshall had been the full-time driver of the PT cruiser since September 2013.

She stated that he had been driving it on February 14, 2014, when she last saw

him before the incident.

      On February 22, the police stopped and arrested Marshall while he was

driving a Dodge Durango registered to a girlfriend, Shamarra Scott.      Police

seized "several" cellular phones from Marshall's person and another that was on

the ground near the driver's door of the Dodge. They found a 40-caliber SIG

Sauer handgun in a backpack on the front passenger seat. They also found an

envelope, an identification card, and a prescription pill bottle with Marshall's

name in this backpack. Marshall's DNA (deoxyribonucleic acid) was found on

the magazine and ammunition inside the gun. Testing showed that this gun fired

the 40-caliber bullet and shell casings found at Prince's house.

       Police also searched the contents of Marshall's cell phones and the cell

phone of Ryan Erker, Marshall's co-defendant. Marshall and Erker exchanged

several text messages and calls with one another using these phones. Their text

messages suggested that Erker was monitoring Perkins's dispensaries and

attempting to locate his house. On February 6, 2014, Erker sent Marshall a

message stating, "Brother, I think I've got the address we've been looking for!

I'm having it checked tonight. .. . Keep your fingers crossed. This is the big

one." On February 12, Erker texted Marshall,"We know where the honey pot is,


                                       -4-
No. 76119-6-1/ 5


so we got time, bro." Marshall responded,"Yeah. We'll put it off for another day.

Let's shoot for tomorrow."

      Cell tower evidence showed primarily Erker's phone and sometimes

Marshall's phone connected to the tower closest to Prince's house periodically

between February 7 and 17, 2014. Neither phone had connected to the tower

closest to Prince's house before February 7. And neither phone connected to

that tower after February 17. On February 17, between 8:00 p.m. and 8:40 p.m.,

Erker and Marshall placed multiple calls to each other. Each of their phones

connected to the cell tower closest to Prince's house for some of these calls. At

8:13 p.m., both Erker's and Marshall's cellular numbers connected to the tower

closest to Prince's house. Erker called Marshall several times between 8:37 p.m.

and 8:41 p.m. All these calls connected to a tower west of the tower closest to

Prince's house.

       Marshall had another girlfriend at the time, Soqueara Bailey. She testified

that on the night of February 17, she heard Marshall's and Erker's voices

downstairs but could not hear what they were saying. Late that night, Marshall

woke her up and told her, "I fucked up." Marshall had told her similar things in

the past when he had impregnated other women. She stated that a few days

later, Erker asked her to throw away a DVR or DVD player, which she threw in a

dumpster. Paul Steve had bought and sold cars for Erker. He testified that on


                                       -5-
No. 76119-6-1 /6


February 17, Erker called him to ask him to sell a PT Cruiser because it had

been used in a crime.

      The State charged Marshall with one count of first degree murder and one

count of second degree unlawful possession of a firearm. It alleged that Marshall

caused Prince's death while committing or attempting to commit first degree

robbery and first degree burglary. It also claimed that Marshall knowingly had a

handgun in his possession or control and had previously been convicted of first

degree malicious mischief. The jury found him guilty of first degree murder and

returned a special verdict finding that he was armed with a firearm during the

crime. At a bifurcated bench trial, the trial court found Marshall guilty of second

degree unlawful possession of a firearm. Marshall appeals.

                                   ANALYSIS

                              Pro Se Legal Motions

       Marshall challenges "the trial court's admission of [his] pro se legal

motions as substantive evidence of guilt" on constitutional and evidentiary

grounds. We reject his challenges. We also note that information about the

content of these motions was admitted through Scott's testimony only; contrary to

Marshall's argument, the trial court did not admit the motions themselves as

exhibits.




                                        -6-
No. 76119-6-1 / 7


      The State called Scott as a witness. During her direct examination of

Scott, a prosecutor asked about handwritten documents that Marshall had mailed

to Scott before trial. Scott testified that she helped Marshall put some of these

documents on pleading paper. While represented by an attorney, Marshall filed

these pleadings as pro se motions on his own behalf. He filed a "motion to

challenge search warrant" and "request for Franks1 hearing." He asked the court

to suppress evidence that the police obtained from Sierra, including evidence

from the search of her cell phone. Marshall also filed a "motion to suppress

evidence pursuant [to] CrRLJ 3.6," requesting suppression of the Burberry

glasses found at Prince's house.

      At trial, Scott identified exhibit 106 as "a motion to suppress," which she

confirmed were the handwritten documents that Marshall had mailed to her. The

State asked, "Motion to suppress what?"        Defense counsel objected "as to

relevance." The trial court sustained the objection: The State then asked about

the similarities between Marshall's assertions in these documents and the

declaration that Scott filed with the court after receiving them. The State offered

exhibit 106 into evidence, and Marshall objected based on relevance. The State

reserved the issue.     Scott testified that the documents she received from

Marshall included assertions about police treating Sierra poorly. The State asked


      1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667
(1978).
                                   -7-
No. 76119-6-1/8


what the documents said about Sierra. Marshall objected based on hearsay and

relevance. Outside of the presence of the jury, the State maintained, "[W]ithin

these pleadings is Mr. Marshall's theory of the case." The State asserted that it

was offering the handwritten letters "strictly for Mr. Marshall's consciousness of

guilt, his attempt to influence the statement of other witnesses, [and] his

successful attempt to do it." Marshall maintained his previous objection.

      The trial judge stated, "As I think has come up before, I mean, there's no

such thing as hybrid representation. Mr. Marshall [is] represented by Counsel. I

consider motions presented by Counsel when an individual decides to send

documents out into the world, they send documents out into the world." The trial

court ruled that Marshall's statements in the documents he sent Scott were not

hearsay. But it stated that the motions contained statements that were "maybe

subject to a 403 analysis," including Marshall's mention of spousal privilege,

Ferrier2 warnings, and Miranda.3

       The State stated that it would prepare a redacted version of exhibit 106.4

Marshall's counsel responded, "[T]here's a 403 objection as well, but it's all the

same thing. If [the State is] going to inquire as to portions [of the exhibit], we'll


       2 State  v. Ferrier, 136 Wn.2d 103, 960 P.2d 927(1998).
       3   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
      4  The record does not show that the State ever prepared a redacted
version of exhibit 106 or that the trial court ever admitted exhibit 106 as an
exhibit.
                                       -8-
 No. 76119-6-1/ 9


 just raise objections as those come forward." The trial court ruled that because

 the question to which Marshall had objected had asked what exhibit 106 said

 about Sierra and the document said a lot about her, some of which may be

 inadmissible, Marshall's objection was sustained on "that phrasing."

        Then, twice over Marshall's relevance objections, the State asked Scott if

 Marshall had asked her to type his. motions, in part, to prevent Sierra's cell phone

 from being available in evidence. Without objection, the State proceeded to elicit

 more testimony about the factual statements in exhibit 106 and about Scott's

 encounter with the police.

        Again, without objection, Scott testified that one of the handwritten

 motions Marshall sent her asked the court to suppress evidence about the gun

 found in the backpack in her Durango. The State showed Scott exhibit 108,

 which Scott confirmed were the motions that she had typed for Marshall based

 on the documents he sent her. The record does not show that the trial court

. admitted exhibit 108. Marshall did not object when Scott confirmed that one of

 the motions asked the court to suppress evidence about the pair of Burberry

 eyeglasses found at the scene based on Marshall's claim that they were not his.

  Marshall • also did not object when the prosecutor read paragraphs from the

 motions detailing Marshall's argument about the glasses.




                                         -9-
No. 76119-6-1/ 10


A. Constitutional Claim

       First, Marshall claims that Scott's testimony about his pro se legal motions

violated his constitutional rights to access the court system, to due process, and

to have inadmissible evidence suppressed. We reject this claim.

       As a preliminary matter, the State contends that Marshall did not preserve

this claim below. An appellate court may refuse to review any claim of error that

a party did not raise in the trial court unless one of three exceptions applies.5

       First, Marshall claims that his trial counsel raised the issues at trial.

Normally, a party may appeal an evidence decision only on the specific ground of

the objection made at tria1.6 But an appellate court will review an evidence ruling

if the specific basis for the objection is "'apparent from the context.'"7 Here, when

the State asked Scott what the letters said about Sierra, Marshall's trial counsel

objected, stating, in part, "It seems to me that Mr. Marshall is entitled to create

legal pleading. He's done that." Marshall contends that this objection informed

the trial court that he had a right to file legal motions and preserved his claim that

testimony about his pro se motions violated his constitutional right to access the

courts. Marshall also claims that his counsel's objections based on relevance



       5 RAP 2.5(a).
       6 Statev. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182(1985).
       7 State v. Braham, 67 Wn. App. 930, 935, 841 P.2d 785 (1992) (internal
quotation marks omitted)(quoting State v. Pittman, 54 Wn. App. 58, 66, 772 P.2d
516 (1989)).
                                     -10-
No. 76119-6-1/ 11


"further alerted the trial court to the dispositive issue" that Marshall was

exercising his right to file legal motions.

       The trial court responded, in part, "[T[here's no such thing as hybrid

representation."    Marshall asserts that this statement means the trial court

"clearly understood the nature of the constitutional objection" because the central

issue on appeal is "tension" between the right to access the court system and the

lack of a right to hybrid representation. But because Marshall now challenges

testimony about his pro se motions based on his constitutional right to access the

court system, not based on a claimed right of hybrid representation or relevance,

his trial counsel's objections were not sufficiently related to his current

constitutional claim to preserve it.

       Alternatively, Marshall asserts that admission of his pro se motions during

trial qualifies as manifest constitutional error, reviewable for the first time on

appeal under RAP 2.5(a)(3). An error is manifest if it caused actual prejudice.8

This means the defendant must make a plausible showing that the asserted error

had practical and identifiable consequences in the tria1.8 But this court first

decides whether the alleged error implicates a constitutional right. To determine

if an error is of constitutional magnitude, a reviewing court assumes the alleged




       8 State  v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125(2007).
       9   Kirkman, 159 Wn.2d at 935.
                                       -11-
No. 76119-6-1/ 12


error occurred and then assesses if that error actually violated the defendant's

constitutional rights.10

       Criminal defendants have a constitutional right to counse1.11 They also

have a constitutional right to waive assistance of counsel and represent

themselves.12 Marshall acknowledges, however, that they do not have a state or

federal constitutional right to "hybrid representation," through which defendants

may serve as co-counsel with their attorneys.13 Represented defendants have

no constitutional right to file pleadings with the trial court.14    But Marshall

contends that individuals do have a constitutional right of access to the courts to

redress grievances, which "is rooted in the petition clause of the First

Amendment to the United States Constitution."15 They also have a constitutional

right to suppression of illegally obtained evidence.16 And individuals may not be

penalized for the lawful exercise of a constitutional right.17 Marshall relies on

three cases to illustrate this principle.




     10 State v. Kalebaugh, 179 Wn. App. 414, 420-21, 318 P.3d 288 (2014).
     11 State v. Romero, 95 Wn. App. 323, 326, 975 P.2d 564(1999).
     12 Romero, 95 Wn. App. at 326.
     13 Romero, 95 Wn. App. at 326.
     14 State v. Blanchev, 75 Wn.2d 926, 938, 454 P.2d 841 (1969).
     15 In re Pers. Restraint of Addleman, 139 Wn.2d 751, 753-54, 991 P.2d
1123(2000).
     16 State v. Duncan, 146 Wn.2d 166, 170, 176, 43 P.3d 513(2002).
     17 State v. Burke, 163 Wn.2d 204, 221, 181 P.3d 1(2008).
                                     -12-
No. 76119-6-1/ 13


       First, Marshall relies on In re Personal Restraint of Addleman,18 where our

Supreme Court held that the Indeterminate Sentencing Review Board's decision

to deny Addleman parole, in part, because of the litigation and personal

grievance actions he had filed, violated Addleman's constitutional right of access

to the judicial system.     Second, Marshall cites State v. Burke,18 where our

Supreme Court held that the prosecution's use of Burke's silence as substantive

evidence of his guilt violated the Fifth Amendment and article 1, section 9 of the

Washington Constitution. Third, Marshall relies on State v. Gauthier,2° where this

court held that the prosecution's presentation of evidence that Gauthier refused

to consent to warrantless sampling of his DNA as substantive evidence of his

guilt violated Gauthier's right to invoke with impunity his Fourth Amendment and

article 1, section 7 protections.

       While the trial court did not admit Marshall's pro se motions into evidence,

he claims that like these three cases, "the trial court's admission of [his] pro se

legal motions as substantive evidence of guilt penalized him for the lawful

exercise of his constitutional right[ 1" to access the court system and have illegally

obtained evidence suppressed. In Addleman, Burke, and Gauthier, the conduct

at issue penalized the defendants for exercising a constitutional right: the right to

redress grievances, the right to remain silent, and the right to refuse consent to a

       18 139 Wn.2d 751, 753-56, 991 P.2d 1123(2000).
       18 163 Wn.2d 204, 208-10, 221-23, 181 P.3d 1(2008).
       28 174 Wn. App. 257, 261-63, 267, 271, 298 P.3d 126 (2013).
                                      -13-
No. 76119-6-1/14


warrantless sampling of DNA. But here, a defendant's rights to access the court

system and have illegally obtained evidence suppressed do not include a

constitutional right to file pro se pleadings while represented by counsel. By

accepting legal representation, Marshall gave up the right to contribute to his

defense by filing pleadings. If a represented defendant wants to file a motion to

suppress, he has a constitutional right to do so only through his counsel.

Because a represented defendant does not have a constitutional right to hybrid

representation, Scott's testimony about Marshall's pro se motions did not violate

any constitutional right of Marshall. He does not show manifest constitutional

error.

B. Evidentiary Claim

         Alternatively, Marshall claims that the trial court abused its discretion by

admitting testimony about his pro se motions in violation of ER 403. As a

preliminary issue, the State contends that Marshall did not preserve this claim on

appeal because he objected on the basis of ER 403 only once and the court

sustained that objection.      All his other objections cited as grounds either

relevance or hearsay.

         The State correctly describes the record.      Marshall made an ER 403

objection to the State's question about what the letters that Marshall mailed to

Scott said about Sierra. And the trial court did sustain this objection. Then


                                         -14-
No. 76119-6-1/ 15


Marshall's trial counsel stated that he would object to questions the State asked

about the exhibit as necessary going forward. Marshall's trial counsel based all

later objections on relevance and hearsay only. Because this court generally

may refuse to review any claim of error that a party did not raise at the trial court,

we decline to consider Marshall's ER 403 challenge.

                             Prosecutorial Misconduct

       Next, Marshall claims that the State committed prejudicial prosecutorial

misconduct by purposefully eliciting a witness's opinion about his guilt. We

disagree.

      The State questioned Scott about a letter she wrote Marshall in late

February or early March of 2014.          Marshall did not object to the State's

questions.

       Q.     You wrote him an eight-page letter. And, in this statement,
       you told the detective that in that letter, you asked him, you told
       him, that he needed to remove the wickedness from his life; is that
       correct?

       A.     That's correct.

       Q.     What wickedness?

       A.    Everybody has wickedness, because everyone sins every
       day. So he needs to ask for forgiveness of his sins from being a
       young child, from harsh words, what it is you say against other
       people, thoughts, everything.

       Q.       When you wrote him this letter, he was in jail for murder, and
       you had asked him about it, and he told you to shut up. In this
       letter, did you tell him that he needed to ask God for forgiveness?
                                        -15-
No. 76119-6-1 / 16


       A.     We ask God for forgiveness every day.

       Q.    Ms. Scott, he needed to ask God for forgiveness for
       murdering Ryan Prince. Isn't that what you meant?

       A.     No, that's not what I meant.

      [State]:        I don't have any more questions.

(Emphasis added.)

       Prejudicial prosecutorial misconduct violates the defendant's Sixth

Amendment right to a fair tria1.21 "Defense counsel's failure to object to the

misconduct at trial constitutes waiver on appeal unless the misconduct is 'so

flagrant and ill-intentioned that it evinces an enduring and resulting prejudice'

incurable by a jury instruction."22

       ER 701 permits lay witness testimony when it is (1) rationally based on the

perception of the witness,(2) helpful to the jury, and (3) not based on scientific or

specialized knowledge. But opinion testimony about a criminal defendant's guilt

violates the defendant's constitutional right to a trial by an impartial jury.23 A

prosecutor commits misconduct when her questioning of a witness asks a

witness to provide inadmissible testimony.24 "A prosecutor has no right to call to




       21 State v. Fisher, 165 Wn.2d 727, 746-47, 202 P.3d 937(2009).
       22 Fisher, 165 Wn.2d at 747 (internal quotation marks omitted) (quoting
State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)).
       23 State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213(2014).
       24 State v. Jerrels, 83 Wn. App. 503, 507-08, 925 P.2d 209 (1996).
                                        -16-
No. 76119-6-1 / 17


the attention of the jury matters or considerations which the jurors have no right

to consider."25

       Here, the prosecutor intentionally asked for Scott's opinion about

Marshall's guilt when the prosecutor asked Scott if she wrote to Marshall that "he

needed to ask God for forgiveness for murdering Ryan Prince." Because this

testimony violated Marshall's constitutional right and the prosecutor intentionally

elicited it, the prosecutor committed misconduct. But the prosecutor's conduct

was not so flagrant and ill-intentioned that an instruction would not have cured

any resulting prejudice.

       First, Marshall claims that because there were no eyewitnesses to the

murder and the primary issue at trial was identity, an instruction could not have

cured the resulting prejudice. But the other evidence of Marshall's guilt was

sufficiently abundant that an instruction could have cured any resulting prejudice.

       Marshall's and Erker's text messages establish that they located Prince's

home, referred to it as the "honey pot," and intended to carry out a plan that

required them to locate his home. Cell phone data shows them near Prince's

house in the days leading up to the murder and at the time of the murder. In

addition, police found Burberry eyeglasses with only Marshall's fingerprint at the

scene, witnesses testified that they had seen him wear Burberry glasses, and a



       25   State v. Beloarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988).
                                        -17-
No. 76119-6-1 / 18


Facebook picture shows him wearing Burberry glasses. Sierra testified that

since September 2013 Marshall had been the primary user of her PT Cruiser,

which was photographed at Prince's house at the time of his murder. And Steve

testified that Erker asked him to sell that PT Cruiser on the night of the murder

because it had been used in a crime. Further, the gun located in Marshall's

backpack fired the bullet and some of the cartridge casings found at the scene.

After the murder, Marshall told Bailey that he had "fucked up." And only after

Scott received a letter from Marshall stating that police treated her poorly did she

file a declaration making this claim.

       Second, the record does not show that the prosecutor further questioned

Scott about her letter or referred to Scott's testimony about the letter at any later

point during trial. Marshall relies on State v. Jerrels,26 where Division Two of this

court held the prosecutor committed prejudicial misconduct by asking the child-

victims' mother her opinion about whether her children were telling the truth

about the alleged sexual abuse. But in Jerrels, "[t]he improper questions were

asked three different times, giving them a cumulative effect."27 This "cumulative

effect" is absent here where the prosecutor referenced Scott's letter only the one

time while she was questioning Scott.




       26 83 Wn. App. 503, 507-08, 925      P.2d 209 (1996).
       27   Jerrels, 83 Wn. App. at 508.
                                           -18-
No. 76119-6-1 / 19


      Third, Marshall also relies on Jerrels to support the proposition that a

loved one's opinion on the guilt of the accused or the veracity of a witness is

highly prejudicial. There, the court reasoned that the prosecutor's improper

questioning was prejudicial, in part, because "[a] mother's opinion as to her

children's veracity could not easily be disregarded even if the jury had been

instructed to do so."28    Here, Scott testified that she has been "considered

[Marshall's] common law wife [for s]everal years now." And they have a child

together. But she also testified that she has known Marshall for 10 years and

they have "been friends in between things.           [They]'ve both had other

relationships." Indeed, at the time of the murder, Marshall had at least three

girlfriends, including Scott.     Regardless of how Scott characterizes her

relationship with Marshall, her sporadic romantic relationship with him is not like

a mother's relationship with her children.

       Fourth, Marshall notes that the religious implications of Scott's letter may

have been "particularly persuasive for some jurors." The opposite assumption,

however, is equally as reasonable.           We do not consider this argument

persuasive.




      28   Jerrels, 83 Wn. App. at 508.
                                          -19-
No. 76119-6-1/ 20


       Last, the trial court gave the standard instruction to the jury that the

lawyers' remarks, statements, and arguments are not evidence. And "[j]urors are

presumed to follow the court's instructions."29

       For these reasons, we conclude that the prosecutor's misconduct was not

so flagrant and ill-intentioned that it could not have been cured by an instruction.

                            Statement of Additional Grounds

       Marshall makes a number of constitutional challenges in his statement of

additional grounds. This court reviews constitutional challenges de novo.3° We

reject Marshall's claims.

A. Fourth Amendment

       Marshall contends that his Fourth Amendment right to privacy was

violated on three grounds. We disagree.

       The Fourth Amendment protects individual privacy against certain kinds of

governmental intrusions.31 It guarantees the "right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures."32    A search occurs under the Fourth Amendment when the

government intrudes upon a subjective and reasonable expectation of privacy.33


       29Kirkman, 159 Wn.2d at 937.
      39 State v. Budd, 185 Wn.2d 566, 571, 374 P.3d 137 (2016).
      31 Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 19 L. Ed. 2d
576 (1967).
      32 U.S. CONST. amend. IV.
      33 State v. Goucher, 124 Wn.2d 778, 782, 881 P.2d 210 (1994).
                                     -20-
No. 76119-6-1 / 21


      First, Marshall claims that the police conducted an illegal pretexutal stop,

an illegal seizure, and an illegal custodial interrogation of Sierra. But a party

alleging a constitutional claim must have standing.34 "Fourth Amendment rights

are personal rights which may not be vicariously asserted. . . . A defendant may

challenge a search or seizure only if he or she has a personal Fourth

Amendment privacy interest in the area searched or the property seized."35

Because the stop and interrogation of Sierra and the search of her cell phone

implicate Sierra's privacy interest, not Marshall's, he does not have standing to

challenge this conduct under the Fourth Amendment.

      Second, Marshall claims that the police interrogation of Sierra violated his

privacy right because the spousal privilege statute protects him.           RCW

5.60.060(1) prohibits a husband or wife or domestic partner from testifying

against the other during their marriage or domestic partnership or after the

marriage or domestic partnership about a communication made during the

marriage or domestic partnership without the consent of the nontestifying

spouse. But Marshall does not contest that at the time of Prince's murder, he

and Sierra were divorced and had been in only an "ongoing domestic relationship

for over 14 years." An "ongoing domestic relationship" is not a relationship

protected by the spousal privilege statute.

      34 See Goucher, 124 Wn.2d at 787 ([W]e must decide whether the
Defendant has the standing to challenge the scope of this warrant.").
        Goucher, 124 Wn.2d at 787.
                                     -21-
No. 76119-6-1/ 22


      Third, Marshall claims that the State had the King County Jail intercept his

incoming and outgoing mail to his "spouse"36 without a warrant. But he did not

raise this claim below and does not claim manifest constitutional error. Because

an appellate court may refuse to review any claim of error that a party did not

raise in the trial court unless one of three exceptions applies,37 we decline to

consider Marshall's claim.

B. Ineffective Assistance of Counsel

      Marshall next claims that he received ineffective assistance of counsel on

three grounds. We disagree.

      The Sixth Amendment to the United States Constitution guarantees the

right to effective assistance of counsel to help ensure a fair tria1.38        To

prove ineffective assistance of counsel, an appellant must show that (1) counsel

provided representation so deficient that it fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced him.39 To prove

deficient performance, the defendant must show that counsel's performance fell

below an objective standard of reasonableness.4° Appellate courts examine trial

counsel's performance with great deference, and the defendant must overcome

       36 It is unclear to whom Marshall refers when he says "spouse." Sierra is
his ex-wife, and Scott testified that she was Marshall's "common law wife."
       37 RAP 2.5(a).
       38 State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011).
       39 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816(1987).
       40 Strickland, 466 U.S. at 687-88.
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the presumption that the challenged action "might be considered sound trial

strategy.'”41   Counsel's performance is not deficient for failing to object to

admissible evidence.42 The prejudice prong requires that the defendant establish

there is a reasonable probability that but for counsel's deficient performance, the

outcome of the proceedings would have been different.43

       First, Marshall claims deficient performance on the ground that his trial

counsel did not ask the trial court to suppress the evidence from Sierra's cell

phone that Marshall asked the court to suppress in his pro se motions. As

discussed above, Marshall does not have standing to challenge the evidence

police obtained from Sierra's cell phone. Although Marshall also appears to

challenge admission of this evidence based on ER 403, he did not object on this

basis at trial, so we decline to consider it under RAP 2.5(a).

       Second, Marshall contends that he received deficient performance

because his trial counsel did not ask to have a biased juror excused for cause. If

the record demonstrates the actual bias of a juror, seating this juror is manifest

error." Here, a juror told the court that a friend of hers had died in a home

invasion and it "brought back memories and . ..feelings." This juror testified that

she did not "think that there's too much of an emotional connection" or that her

     41 Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101,76 S. Ct. 158, 100 L. Ed. 83(1955)).
     42 Grier, 171 Wn.2d at 32.
     43 Grier, 171 Wn.2d at 34.
     44 State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103(2015).
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"decision-making would be compromised."        She thus stated that she could

remain impartial, so the record does not demonstrate actual bias.

      Third, Marshall maintains that his trial counsel should not have used an

"all or nothing" strategy and should have requested lesser-included offense

instructions on first and second degree manslaughter. The decision to exclude

or include lesser included offense instructions "ultimately rests with defense

counsel."45 In State v. Grier,46 our Supreme Court reasoned that an all or nothing

strategy is not necessarily evidence of deficient performance because the

defendant and his counsel could reasonably have believed that this strategy was

the best approach to achieve an acquittal. The court also stated Grier did not

prove prejudice because the court assumed, as it was required to, that the jury

could not have convicted Grier of the charged offense unless the State had met

its burden; and the availability of a lesser included offense would not have

changed the outcome.47       Similarly, here, Marshall cannot show prejudice

because we must assume that the jury would not have convicted him of first

degree murder unless the State met its burden of proof.

C. Confrontation Clause

       Last, Marshall claims Steve's testimony that Erker told Steve, "one of the

guys owns the car," violated his Sixth Amendment right to confront witnesses

      45 Grier, 171 Wn.2d at 32.
      46 171 Wn.2d 17, 43, 246 P.3d 1260 (2011).
      47 Grier, 171 Wn.2d at 43-44.
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against him because he was unable to cross-examine Erker. But the record

does not show that Steve provided the quoted testimony. We do not consider

this claim.

                                    DNA Fee

       Marshall asks that this court strike his $100 DNA fee from his judgment

and sentence consistent with our Supreme Court's recent holding in State v.

Ramirez." There, our Supreme Court discussed and applied House Bill (HB)

1783, which became effective June 7, 2018, and applies prospectively to all

cases on direct appeal."      The court stated that HB 1783 amended RCW

43.43.7541 to provide that "the DNA database fee is no longer mandatory if the

offender's DNA has been collected because of a prior conviction."50 The court

also explained that HB 1783 "amends former RCW 10.01.160(3) to expressly

prohibit courts from imposing discretionary costs on defendants who are indigent

at the time of sentencing: 'The court shall not order a defendant to pay costs if

the defendant at the time of sentencing is indigent as defined in RCW

10.101.010(3)(a) through (c).'"51

       Here, Marshall has a felony conviction from 2011. RCW 43.43.754 would

have required that he have a DNA sample collected as a result of that felony.


       48 191 Wn.2d 732, 426 P.3d 714(2018).
       49 Ramirez, 191 Wn.2d at 747.
       59 Ramirez, 191 Wn.2d at 747.
       51 Ramirez, 191 Wn.2d at 748 (quoting LAWS OF 2018, ch. 269,§ 6(3)).
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Because Marshall's DNA fee was previously collected, the DNA fee is no longer

mandatory under RCW 43.43.7541. The trial court found Marshall indigent and

ordered him to pay the $100 DNA fee. Because a trial court may not impose

discretionary fees on indigent defendants under RCW 10.01.160(3), we strike

 Marshall's $100 DNA fee from his judgment and sentence.

                                  CONCLUSION

       We affirm. Testimony about the substance of Marshall's pro se motions

that he filed while counsel represented him did not violate his constitutional right

to access the courts because a criminal defendant does not have a hybrid right to

s representation. Because ample evidence supports Marshall's guilt, he does not

show that the prosecutor's misconduct caused him prejudice.




WE CONCUR:




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