 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE
STATE OF WASHINGTON,
                                             No. 74363-5-1
                     Respondent,
                                             ORDER WITHDRAWING OPINION
              V.                             AND SUBSTITUTING OPINION

KARL EMERSON PIERCE,

                     Appellant.


       The court has determined that the opinion filed on June 11, 2018, should

be withdrawn and a substitute opinion be filed. Now, therefore, it is hereby

       ORDERED that the opinion filed on June 11, 2018, be withdrawn and a

substitute opinion be filed.

                               FOR THE COURT:




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                                                                   COURT OF'APPEALS DIV I
                                                                    STATE OF WASHINGTON

                                                                   20113AU6 27 Mi        38


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                         )
                                                      No. 74363-5-1
                       Respondent,
                                                      DIVISION ONE
               V.
                                                      UNPUBLISHED OPINION
KARL EMERSON PIERCE,t

                       Appellant.                     FILED: August 27, 2018


       TRICKEY, J. — Karl Pierce and Michael Bienhoff claimed that they were
involved in a marijuana deal with Precious Reed and Demetrious Bibb. During the

transaction, an altercation occurred between Bienhoff and Reed. A handgun

discharged and killed Reed.

       The State ultimately charged codefendants Pierce and Bienhoff with first

degree felony murder predicated on robbery in the first degree, with a deadly

weapon allegation. The State's theory at trial was that Pierce and Bienhoff

intended to rob Reed, rather than to sell him marijuana. The jury convicted Pierce

as charged. He appeals. Because the prosecutor committed misconduct during

voir dire that prejudiced Pierce, we reverse Pierce's conviction and remand for a

new trial.




t Karl Pierce and Michael Bienhoff were tried as codefendants in the trial court. In this
court, the appeals were linked for hearing but not consolidated. For clarity, we have written
two opinions and revised each case caption to refer only to the appellant in each appeal.
 No. 74363-5-1 /2


                                        FACTS

         Reed and Bienhoff had known each other for several years. In February

 2012, Reed asked Bienhoff to sell him a couple of pounds of marijuana. On

 February 20, 2012, Bienhoff told Reed that he would sell Reed two pounds of

 marijuana for $2,200 per pound. Reed replied that he still wanted the marijuana

 but needed to raise money. Bienhoff claimed that he picked up two and a half

 pounds of marijuana from his supplier for $1,800 per pound.

         Bienhoff planned to meet Reed near Green Lake, an area of North Seattle,

 to conduct the transaction. Bienhoff went to Ramon Lyons's home in the Bitter

 Lake community. Lyons helped Bienhoff arrange for Scott Barnes to provide a

 ride.

         When Barnes arrived at Lyons's home, Lyons was on the front porch

 cleaning a revolver.     After meeting with Barnes, Bienhoff asked Lyons to

 accompany them as "insurance."1 Lyons agreed, and the group went to pick up

 Lyons's friend, Pierce. Bienhoff and Pierce had not previously met. Bienhoff

 claimed to have separated the two pounds of marijuana he planned to sell to Reed

 and the extra half pound into two backpacks.2

         Barnes drove the group back to Lyons's house. Lyons testified that Bienhoff

 said that he did not feel safe and asked to borrow a gun. Lyons and Pierce got out

 of the car, and Lyons entered the house. Lyons retrieved two handguns. One was

 a gray or chrome colored .45 caliber semiautomatic pistol. The other was the



'Report of Proceedings(RP)(Oct. 27, 2015) at 3435.
2 Barnes testified that the group went directly from Pierce's home to Green Lake without
 making any stops.
                                           2
No. 74363-5-1/ 3


revolver Lyons had been cleaning earlier. After Lyons and Pierce returned to the

car, Barnes drove the group toward Green Lake.

       While en route, Lyons gave the revolver to Bienhoff.3 When the group

stopped at a gas station, Bienhoff and Barnes left the car. While alone in the car,

Lyons warned Pierce to watch Bienhoff, and gave him the semiautomatic pisto1.4

       After leaving the gas station, Barnes drove to Green Lake. He parked the

car near the lake in an upper parking lot of Woodland Park. Bienhoff got out of the

car. He hid the backpack in a bush. After asking Barnes to move the car away

from the lot, Bienhoff asked Lyons to stay out of sight but within earshot of where

Bienhoff was going to meet Reed. Lyons told Pierce to "back up" Bienhoff to

ensure that he was not robbed.5

       Reed arrived driving a gray van. A white Cadillac followed Reed's van into

the parking lot. Reed parked, and the white Cadillac stopped further down the lot.

Pierce was outside of Barnes's car. He found a vantage point from which he could

see Reed's van and the white Cadillac. Pierce observed that Reed and the driver

of the Cadillac were both black males.

       Reed and the driver of the Cadillac, later identified as Bibb, exited their

vehicles and greeted Bienhoff. Bibb had agreed to pay half the cost of the

marijuana, and thought the deal was $2,000 for two pounds. Bibb planned to


3 At trial, Bienhoff denied asking Lyons for a weapon and that he knew that Lyons and
Pierce were armed. Pierce testified that he did not see any other members of the group
carrying guns, and that he did not think Bienhoff was armed. But Barnes testified that he
observed Lyons handing the revolver to Bienhoff and that he noticed that Pierce was
armed.
4 Lyons testified that he gave the .45 caliber handgun to Pierce while the entire group was
in the car and driving toward Green Lake from the gas station.
5 RP (Oct 22, 2015) at 3250.

                                            3
No. 74363-5-1/4


"front" the marijuana, or pay part of the purchase price at the transaction, sell some

of the purchased marijuana, and then pay the seller the outstanding balance.6 Bibb

denied having a gun that day, and did not think that Reed was armed.

         Bienhoff recovered the backpack and Bibb returned to the Cadillac. Reed

got into his van and sat in the driver's seat. Bienhoff also entered the van and sat

in the front passenger's seat.       Bienhoff claimed that he showed Reed the

marijuana. Reed told Bienhoff that he did not have the full amount of money to

buy the marijuana. Reed asked Bienhoff to front the marijuana, but Bienhoff

declined.

         Bienhoff testified that he began to exit Reed's van. He claimed that he saw

Reed reaching to his left for the butt of a handgun. He claimed that he and Reed

wrestled for the handgun. The handgun, a revolver with a 10-inch barrel,

discharged into Reed's shoulder. The bullet travelled upwards into Reed's brain

and caused his death.

         The shot temporarily deafened Bienhoff. He grabbed the backpack, exited

Reed's van, and ran to Barnes's car. While running, Bienhoff saw Bibb standing

between Reed's van and the Cadillac. He did not notice whether Bibb was armed

or had fired any shots.

         Pierce had seen Reed's van start to rock and assumed there was a struggle.

Pierce moved closer to the van. Bienhoff ran past Pierce, who heard Bienhoff say

that Reed had attempted to rob him. Pierce saw a black male come around the

front of Reed's van, and heard a boom. Pierce thought the man was shooting at


6   RP (Oct. 1, 2015) at 1678.
                                          4
No. 74363-5-1 /5


him. He ran toward Barnes's car without drawing his gun.

         Lyons had initially moved toward the lake but had begun to head back to

the upper parking lot. On his way, he heard gunfire and "hit the ground."7 Once

he got up, he saw Pierce running toward the parking lot without a gun in his hand.

Lyons heard multiple gunshots. He ran back toward Barnes's car, and heard tires

squeal after the gunfire ended.

         Barnes remained in his car. Barnes heard five gunshots in rapid succession

and thought he could hear them striking metal.

         Bibb testified that he remained in the Cadillac. He observed Reed's van

while Reed and Bienhoff were inside. Bibb did not hear raised voices, see a

struggle, or hear a gunshot.

         Bibb saw another individual, who he later described as 5 feet 8 inches tall

or 5 feet 9 inches tall, run between the Cadillac and the van, turn towards Bibb,

and began firing at him with a dark-colored gun. Bibb ducked down, put his car in

gear, and rapidly left the parking lot. Bibb heard and felt bullets strike the Cadillac.

He later found bullet holes in its side.

         There were two eyewitnesses who observed the incident. The first, Earl

Cadaret, watched through the kitchen window of his recreational vehicle, which

was parked in the same lot as Reed's van and Bibb's Cadillac. Cadaret observed

two black males, one of whom was substantially taller than the other, walking

toward the van and the Cadillac.




7   RP (Oct. 15, 2015) at 2566.
                                           5
No. 74363-5-1/6


         Cadaret saw the taller man enter the driver's side of the Cadillac. He later

noticed the same man standing outside of the Cadillac looking at the van, and then

saw him in front of the van with his arm extended. Cadaret heard several loud

noises that may have been "bangs, pops, or rattle[s]."9

         Cadaret saw the Cadillac drive away, and did not see anyone shooting at it.

He watched the shorter man fall out of the van. After the Cadillac was gone,

Cadaret went to the man on the ground and called 911. When the police

interviewed him later, Cadaret stated that the man in the Cadillac looked like he

had a gun and had shot the man in the other car.

         The second eyewitness was Mark Howard. He was sitting in his truck,

which was in the parking lot where the incident occurred. He saw a minivan and

light-colored sedan park in the lot. He viewed two black males and one white male

standing in the lot before the white man retrieved a backpack from some bushes.

         Howard watched the two black males head toward the minivan and the

sedan. Shortly thereafter, Howard heard "popping" sounds.9 He saw a man he

later identified as Pierce running and holding a silver-colored automatic gun.

         Howard thought Pierce was shooting at the minivan and the sedan,

although he did not see any muzzle flashes or discharged shell casings. Howard

testified that he might have seen another armed man behind the shooter. Howard

fled the parking lot in his truck. He returned later to give police a recorded

statement after he saw a report of the incident on the news.




8   RP (Sept. 30, 2015) at 1433.
9   RP (Sept. 30, 2015) at 1531.
                                          6
No. 74363-5-1 /7


       Once Bienhoff, Pierce, Lyons, and Barnes were in Barnes's car, Pierce said

that he thought the driver of the Cadillac had shot at them. Barnes testified that

Pierce told the group that he saw Reed "slumped" in the van.10 Barnes also

testified that Pierce said that he had been "busting at the caddy" and that he would

dispose of the weapons." Barnes testified that Lyons said,"Nobody say anything,

or we're all screwed.'"12

       Pierce testified that he put the gun Lyons had given him on the floor of

Barnes's car. Lyons did not see any guns in Barnes's car after the incident.

Bienhoff later claimed that he gave the marijuana to someone he knew.

       Police officers found Reed face down on the ground next to his van. The

van's doors were open. Reed had approximately $1,200 in cash on his person,

and no gun was found at the scene. Several .45 caliber shell casings were found

in the parking lot. A crime laboratory concluded that a .38 caliber gun and a .45

caliber gun had been discharged during the incident.

       While watching the news that night, Pierce heard that someone had been

shot at Green Lake, and went into hiding for about a month. Bibb learned that

Reed had died later that evening or early the next morning.               When police

interviewed Bibb the next day, he gave them permission to confiscate the Cadillac.

When Bibb was shown photomontages, he identified Bienhoff and tentatively

identified Pierce as the person who had shot at him.13


10 RP (Oct. 12, 2015) at 2138.
11 RP (Oct. 12, 2015) at 2138. Pierce denied that he had disposed of or destroyed the
gun or any cell phones linked to the incident.
12 RP (Oct. 12, 2015) at 2138.
13 Bibb identified Pierce's photograph as the one who "most closely resembled" the person
that shot at him.
                                           7
No. 74363-5-1/8


          The State charged Bienhoff and Pierce by amended information with

murder in the first degree by reason of causing Reed's death while committing or

attempting to commit the crime of robbery in the first degree. The charge included

a deadly weapon allegation. The State also charged Lyons and Barnes as

codefendants with Bienhoff and Pierce, but they pleaded guilty to lesser charges

in exchange for their testimony at trial.

          At trial, the State's theory was that Bienhoff did not bring marijuana to the

meeting with Reed, and intended to rob Reed of the purchase money. The State

contended that Pierce was the second shooter. Bienhoff denied that the group

discussed a robbery. Bienhoff testified that he only discussed guns with Pierce,

Lyons, and Barnes to say that someone had shot at them.

          The jury convicted Pierce as charged, and he appeals."

                                          ANALYSIS

                         Prosecutorial Misconduct During Voir Dire

          During voir dire, the prosecutor discussed the death penalty with potential

jurors. Bienhoff objected, stating,

          Your Honor, I have a very, very strenuous objection to the
          proceeding that we have, and I'm afraid I have to ask for a mistrial. I
          believe that what's [sic] - - we have seen right here is the State
          attempting to death-qualify a panel where the death penalty is not on
          the table, and that's completely inappropriate.[151




14   Additional facts will be included as appropriate in the sections of analysis.
15   RP (Sept. 23, 2015) at 838.
                                                8
No. 74363-5-1 / 9


Pierce joined in the objection and the motion.16 The trial court ruled that the

questioning was not improper.17

         The trial court supervises voir dire, and "'a great deal must, of necessity, be

left to its sound discretion." State v. Davis, 141 Wn.2d 798, 825, 10 P.3d 977

(2000)(internal quotation marks omitted)(quoting Ristaino v. Ross,424 U.S. 589,

594-95,96 S. Ct. 1017,47 L. Ed. 2d 258(1976)). "Where prosecutorial misconduct

is claimed, the defense bears the burden of establishing the impropriety of the

prosecuting attorney's comments and their prejudicial effect." State v. Brown, 132

Wn.2d 529, 561, 940 P.2d 546 (1997). "To establish prejudice, the defense must

demonstrate there is a substantial likelihood the misconduct affected the jury's

verdict."    Brown, 132 Wn.2d at 561.             Thus, "[a]llegations of prosecutorial

misconduct are reviewed under an abuse of discretion standard." State v. Brett,

126 Wn.2d 136, 174-75, 892 P.2d 29 (1995)(citing State v. Hughes, 106 Wn.2d

176, 195, 721 P.2d 902(1986)).

         To ensure that the jury remains impartial and is not unduly influenced, the

jury may not be informed of the sentence to be imposed by the trial court, except




16 The  State argues that Pierce cannot raise this issue for the first time on appeal because
he failed to object to the discussion of the death penalty below.
         Generally, challenges to the process of selecting a jury may not be raised for the
first time on appeal because jury selection is a procedural matter, not a constitutional
issue. State v. Elmore, 139 Wn.2d 250, 277, 985 P.2d 289(1999)(citing State v. Tharp,
42 Wn.2d 494, 501, 256 P.2d 482(1953)); State v. Gentry, 125 Wn.2d 570,616,888 P.2d
1105 (1995)). But "[a] party may raise a claim of error which was not raised by the party
in the trial court if another party on the same side of the case has raised the claim of error
in the trial court." RAP 2.5(a).
         Here, Bienhoff objected to the prosecutor's discussion of the death penalty. Pierce
joined in this objection and a motion for a mistrial based on the prosecutor's statements.
We conclude that Pierce may raise this issue on appeal under RAP 2.5(a).
17 RP (Sept. 23, 2015) at 824.

                                              9
No. 74363-5-1 / 10


in capital cases. State v. Townsend, 142 Wn.2d 838, 846, 15 P.3d 145 (2001);

State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960). Thus, the jury may

not be informed that the death penalty is not involved during voir dire in a

noncapital case. State v. Hicks, 163 Wn.2d 477,487, 181 P.3d 831 (2008)(citing

Townsend, 142 Wn.2d at 840).18

       Here, jury selection occurred over four days. The trial court informed each

group of prospective jurors that the State had charged Pierce and Bienhoff with

murder in the first degree.

       During the first day of voir dire, the prosecutor asked the trial court outside

of the presence of any potential jurors "how the Court [would] address the jury if

anybody ask[ed] the question of whether or not this[was]a death penalty case?"

The trial court's response was that, when the question had been raised in the past,

it "sort of evaded the question."2° The trial court added that, when it came up again,

it addressed each juror who had a concern individually. The trial court also said it

could address the potential jurors as a whole if counsel wanted it to do so.

       The prosecutor responded that

       [t]he State's preference is to address it head on, of course, in
       accordance with the law, which is to instruct them that our state
       Supreme Court has decided that that is not something that they are
       privy to, or we cannot tell them if this is a death penalty case or not,
       and then ask them the follow-up question. Basically, not knowing
       whether this is a death penalty case or not, does that cause you


18 The State argues that Townsend was incorrectly decided and should be overruled. This
court is bound by Washington Supreme Court precedent and does not have the authority
to overrule its decisions. State v. Jussila, 197 Wn. App. 908, 931, 392 P.3d 1108(2017).
Further, Townsend has been favorably cited in subsequent cases examining this issue.
See Hicks 163 Wn.2d at 487-89. We reject the State's request to overrule Townsend.
18 RP (Sept. 21, 2015) at 405.
28 RP (Sept. 21, 2015) at 406.

                                          10
No. 74363-5-1 / 11


       concern as to whether or not you could be a fair and/or impartial juror
       is this case.[21]

       The trial court replied that

      [m]y preference would be not to ask the follow-up question, but just
      tell them that and then go on and see if any of them raises the issue
      beyond that. But I don't know what you think about that.

              The problem is if I invite them to say, you know, can you be
       fair and impartial, then anybody who for some reason or other
       couldn't like the idea of being here has a good way to head for the
       door.[22]

       The prosecutor then stated that if the trial court "leaves it as that sort of

pregnant issue before the jury, I will ask that follow-up question or I intend on

asking the follow-up question, because that obviously would be a concern for, I

think, both parties."23 Counsel for Bienhoff agreed. The trial court concluded the

discussion by stating, "It's probably less of a concern if you ask the question than

if I ask the question."24 The prosecutor said he would defer to the trial court.

       On the morning of the third day of jury selection, the trial court dismissed

Juror 56 because his conscience would bother him if he voted to convict a person

who after spending years in prison was found to be innocent.25 In the afternoon

that day, during the third round of attorney questioning, the prosecutor referred to

Juror 56's being dismissed because of the "weight of being a juror.26" He informed

the potential jurors that the jury was tasked with determining the guilt or innocence




21 RP (Sept. 21, 2015) at 406.
22 RP (Sept. 21, 2015) at 406.
23 RP (Sept. 21, 2015) at 407.
24 RP (Sept. 21, 2015) at 407.
25 RP (Sept. 23, 2015) at 798-801.
26 RP (Sept. 23, 2015) at 824.

                                         11
No. 74363-5-1 / 12


of Pierce and Bienhoff, and would have no role in deciding their punishment. No

prospective juror had expressed concerns about the death penalty at that point.

       The prosecutor then said,

            . .. Does that make sense? Do you guys all understand that?
       Everyone is nodding their head.

             Are you okay with it? Everybody in the jury box seems to be
       nodding their head.

            Anybody have a concern about that or think that doesn't make
       sense? Anybody? No one?

             What about over here? Everyone okay with that? Does that
       cause you any concern about being a juror in this case where the
       charge is murder in the first degree? Anybody?[27]

       In response to the prosecutor's repeated questions and reminder of the

charge against Pierce, a juror asked whether Washington State used the death

penalty. The prosecutor deferred to the trial court, who told the potential jurors

that it could not tell them whether or not the death penalty was involved in the

present case. The prosecutor responded to several juror questions regarding the

death penalty.28

       The trial court then excused the jury to consider the defense objection to

the State's effort to "death-qualify a jury on a non-death penalty case."29 The trial

court disagreed that the State was "death-qualify[ing]" the jury.3° The trial court


27 RP (Sept. 23, 2015) at 825.
28 For example, several jurors expressed concerns about being involved in a case where
the death penalty could be imposed, and discomfort about not knowing whether the death
penalty was at issue. One juror implied that they knew the process by which the death
penalty is imposed in Washington. The prosecutor generally responded to the jurors'
questions by stating that he and the trial court could not tell the jurors whether the death
penalty was at issue, and asking each juror if they could still be impartial.
29 RP (Sept. 23, 2015) at 839.
39 RP (Sept. 23, 2015) at 839.

                                            12
No. 74363-5-1 / 13


said the State "pivoted off' Juror 56's concerns about "sitting in judgment" and was

only asking if any juror had a "problem not being involved in the penalty."31 The

defense responded that the State's extensive and "invitational" questioning

prompted the discussion of the death penalty.32 The trial court ruled that the

State's questioning was not improper and expressed surprise that the topic had

not come up earlier in jury selection since the charge was murder in the first

deg ree.33

       We conclude that the prosecutor's repeated questioning of the potential

jurors prior to the discussion of the death penalty constituted prosecutorial

misconduct, and that the trial court abused its discretion in failing to curtail the

prosecutor's line of questioning.

       The record reveals that the potential jurors indicated that they understood

the prosecutor's description of the jury's role and did not have follow up questions.

But the prosecutor nonetheless elicited a discussion of the death penalty through

his repeated questioning of the jury's understanding and recitation of the charges

against Pierce and Bienhoff. He did so despite being aware of the Washington

Supreme Court's position that the jury must not be told whether the death penalty

is possible in any given case. Therefore, the prosecutor's elicitation of a discussion

on the death penalty constituted improper conduct sufficient to support a claim of

prosecutorial misconduct.




31 RP (Sept. 23, 2015) at 839.
32 RP (Sept. 23, 2015) at 845.
33 RP (Sept. 23, 2015) at 846.

                                         13
No. 74363-5-1 / 14


       Further, there is a substantial likelihood that the prosecutor's improper

comments prejudiced Pierce and Bienhoff. During the discussion of the death

penalty, Juror 6 expressed concern over taking part in a decision that led to the

imposition of either the death penalty or a life sentence. Although Juror 6 initially

said that she could remain impartial, she later stated that she would be unable to

render a decision while "not knowing whether or not [the death penalty is] even a

possibility."34 The State moved to strike Juror6 for cause based on her responses,

which the trial court denied. But the trial court allowed the State to exercise a

preemptory challenge against Juror 6 in part because of her responses during the

death penalty discussion.

       Juror 76 was also dismissed based on her response to the improper

discussion about the death penalty. After several jurors had asked questions

about the death penalty, Juror 76 said, "I think just sitting here, I didn't realize that

-- I don't know if I could make that decision for people. I really get so nervous. I

couldn't even eat what I brought for lunch. I can't decide."35 The prosecutor asked

Juror 76,"Are you saying having heard all of this that you wouldn't be able to fairly

take in all the evidence and follow the law and make the decision that's being asked

of you?"36 In response, Juror 76 said, "I don't think so."37

       In discussing Juror 76's fitness to serve as a juror, the trial court noted that

Juror 76 had expressed discomfort with the proceedings prior to the discussion of




34 RP (Sept. 23, 2015) at 833.
35 RP (Sept. 23, 2015) at 837.
36 RP (Sept. 23, 2015) at 837.
37 RP (Sept. 23, 2015) at 837.

                                           14
No. 74363-5-1/ 15


the death penalty. Counsel for Bienhoff pointed out that Juror 76 had a personal

hardship that may have affected her mental state.38 But the State specifically

argued that, Juror 76 "indicated that she cannot take in the evidence and follow

the Court's instructions and deliberate with her fellow jurors. So because of that,

the State believes it's appropriate to strike. .. Juror Number 76 for cause."39

       Ultimately, the trial court dismissed Juror 76, stating that, "1 am not

dismissing 76 on the grounds of hardship. 1 am dismissing 76 on the grounds that

she is emotionally unable to be a juror in this case."49

       A review of the record reveals that Juror 76 was actually dismissed based

on her response to the improper discussion of the death penalty. The trial court's

statement that Juror 76 was emotionally disturbed prior to the discussion of the

death penalty was based on Juror 76's statement after the discussion had taken

place. The record does not show that the trial court was considering dismissing

Juror 76 as emotionally unfit to serve as a juror until after the discussion of the

death penalty, and the trial court specifically stated that it was not dismissing Juror

76 on her personal hardship ground.

       Therefore, two potential jurors were dismissed based on their responses to

the discussion of the death penalty elicited by the prosecutor's improper conduct.

The improper changing of the composition of the jury in favor of those who were

comfortable with the possibility of the death penalty being imposed is highly likely

to have rendered the jury more inclined to convict and punish. Thus, there is a



38 RP (Sept. 23, 2015) at 848-49, 857-59.
39 RP (Sept. 23, 2015) at 848.
49 RP (Sept. 23, 2015) at 858.

                                            15
No. 74363-5-I / 16


substantial likelihood that the prosecutor's improper comments prejudiced Pierce

and Bienhoff.

        In sum, the prosecutor's extensive questioning was improper because it

elicited a discussion of the death penalty during voir dire in this noncapital case.

Further, there is a substantial likelihood that the improper comments prejudiced

Pierce and Bienhoff because potential jurors that may have otherwise sat on the

jury were struck on the basis of their negative responses to the death penalty

discussion. Thus, we hold that the trial court abused its discretion when it failed to

curtail this line of questioning during voir dire, and remand for a new tria1.41

                            Appearance of Fairness Doctrine

        Pierce argues that the trial judge violated the appearance of fairness

doctrine when he made a comment implying racial bias.42 But Pierce did not object

to the trial judge's comment below. "An appearance of fairness claim is not

'constitutional' in nature under RAP 2.5(a)(3) and, thus, may not be raised for the



41 Pierce also argues that the State improperly struck Juror 6, who was African-American,
for pretextual reasons, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69(1986), that the trial court erred during voir dire by telling the jury that the
death penalty was not at issue in the present case, that the trial court erred when it sat an
alternate juror without ensuring that she had been protected from outside influence, and
that the trial court erred in not admonishing a juror who stated that he or she was familiar
with Washington's procedure for applying the death penalty not to share that knowledge.
Because we reverse and remand for a new trial due to prosecutorial misconduct during
voir dire and these issues are unlikely to arise on retrial, we do not reach them.
42 When examining the admissibility of text messages sent between Reed and a third party
regarding a debt Reed owed, the judge stated, "[VV]e don't have any information [about
the third party], so we don't know whether he's some white guy like me making a threat or
somebody who's actually, you know, more likely to be a gangster." RP (Oct. 21, 2015) at
2915. The Commission on Judicial Conduct subsequently admonished the judge.
Commission on Judicial Conduct, Judicial Conduct Commission Approves Stipulation and
Admonishes Judge Douglass A. North, No. 8583-F-174 (Dec. 8, 2018),
https://www.cjc.state.wa.us/materials/activity/public_actions/2017/8583FinalStip.pdf (last
visited May 11, 2018).
                                             16
No. 74363-5-1 / 17


first time on appeal." In re Guardianship of Cobb, 172 Wn. App. 393, 404, 292

P.3d 772(2012)(quoting State v. Morgensen, 148 Wn. App. 81, 90-91, 197 P.3d

715 (2008)); see also City of Bellevue v. King County Boundary Review Bd., 90

Wn.2d 856, 863, 586 P.2d 470 (1978) ("Our appearance of fairness doctrine,

though related to concerns dealing with due process considerations, is not

constitutionally based."). Therefore, we conclude that Pierce cannot raise this

issue for the first time on appeal.

        Because the other issues Pierce raises may occur on retrial, we address

them in the remainder of this opinion.

                                  Exclusion of Evidence

        Pierce argues that the trial court abused its discretion when it refused to

admit several pieces of evidence.43 We examine each piece of offered evidence

in turn.

        Evidence that is not relevant is not admissible. ER 402. "[E]vidence must

(1) tend to prove or disprove the existence of a fact, and (2) that fact must be of

consequence to the outcome of the case." Davidson v. Municipality of Metro.

Seattle, 43 Wn. App. 569, 573, 719 P.2d 569(1986); ER 401. This includes "facts

which offer direct or circumstantial evidence of any element of a claim or defense."

Davidson, 43 Wn. App. at 573.




43  Pierce also argues that the trial court infringed his constitutional right to present a
defense when it excluded the evidence at issue. But Pierce does not offer significant
argument in support of his contention that the trial court's rulings violated his constitutional
rights. Rather, his arguments focus on whether the trial court abused its discretion when
it excluded the evidence at issue. Therefore, we examine whether the trial court abused
its discretion in making its evidentiary rulings.
                                              17
No. 74363-5-1 / 18


       We review a trial court's evidentiary ruling for abuse of discretion. State v.

Halstien, 65 Wn. App. 845, 849-50, 829 P.2d 1145(1992). A trial court abuses its

discretion when its decision is manifestly unreasonable or based on untenable

grounds or reasons. In re Det. of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666

(2009). "A decision is based on untenable grounds or for untenable reasons if the

trial court applies the wrong legal standard or relies on unsupported facts."

Duncan, 167 Wn.2d at 403.

       Violation of an evidentiary rule is not grounds for reversal unless the

defendant suffered prejudice. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d

1120 (1997). An error is not prejudicial "unless, within reasonable probabilities,

the outcome of the trial would have been materially affected had the error not

occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). Further,

"[t]he improper admission of evidence constitutes harmless error if the evidence is

of minor significance in reference to the overall, overwhelming evidence as a

whole." Bourgeois, 133 Wn.2d at 403.

       Reed's Financial Situation

       Pierce argues that the trial court abused its discretion by applying the wrong

legal standard to exclude certain evidence of Reed's poor financial status.

Because the trial court properly exercised its discretion to admit only some

evidence of Reed's financial situation, we disagree.

       "Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,




                                         18
No. 74363-5-1 / 19


or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence." ER 403.

       "Evidence of poverty is generally not admissible to show motive." State v.

Kennard, 101 Wn.App. 533,541,6 P.3d 38(2000)(citing United States v. Mitchell,

172 F.3d 1104, 1108 (9th Cir. 1999)). But "[e]vidence concerning a defendant's

bankruptcy and poor financial condition is admissible to show that the defendant

was living beyond his means." Kennard, 101 Wn.App. at 540-41. In turn, evidence

that the defendant was living beyond his means may be admissible to establish

the defendant's motive to commit a crime if its probative value is not substantially

outweighed by its potential prejudice. State v. Matthews, 75 Wn. App. 278, 283,

286, 877 P.2d 252(1994)(holding that the trial court did not abuse its discretion

when it admitted evidence of the defendant's recent bankruptcy and living beyond

his means in trial for first degree murder where State's limited presentation of

evidence did not make "any stigma of bankruptcy or poverty" the point of emphasis

for the jury).

        Here, Pierce sought to introduce evidence of Reed's financial situation

before the incident in order to show that Reed intended to rob Bienhoff. Pierce

offered evidence that Reed and his wife lacked steady employment, received

public assistance, and maintained a lifestyle beyond their means. Pierce also

sought admission of evidence that Reed pawned jewelry, attempted to prostitute

his wife, and borrowed money from a third party who later threatened him.

       The trial court ruled that Pierce could introduce evidence of Reed and his

wife's lack of steady employment, that Reed had pawned a ring, and that Reed


                                         19
No. 74363-5-1 /20


had borrowed money from a third-party seeking repayment. The trial court

admitted a pawn slip for the ring, found in Reed's van, showing that payment was

due four days after the incident occurred. The trial court stated that this evidence

was admissible because it demonstrated that Reed was under"enormous financial

pressure" when he met Bienhoff."

         The trial court excluded the remainder of Pierce's offered evidence after

finding that its potential prejudicial impact substantially outweighed its probative

value. This included six other pawn slips for items for which payments were not

due close to the time of the incident.

         The trial court properly weighed the probative value of each item of

evidence against its potential prejudicial impact prior to deciding whether to admit

the evidence under ER 403. The trial court limited the scope of the evidence

admitted on the issue of whether Reed had a financial motivation supporting his

alleged intent to rob Bienhoff under ER 403. The trial court noted that the evidence

could paint Reed and his wife as undesirable people in the eyes of the jury. The

trial court concluded that only evidence demonstrating that Reed was under

"enormous financial pressure" when he met Bienhoff was sufficiently probative to

be admissible under ER 403. We conclude that the trial court properly exercised

its discretion to admit only some evidence of Reed's financial situation.

         Reed's Prior Criminal Charge

         Pierce argues that the trial court erred when it denied his request to admit

evidence of Reed's prior criminal behavior. The State responds that the trial court


44   RP (Sept. 14, 2015) at 127-28.
                                          20
No. 74363-5-1 /21


properly barred the evidence as inadmissible propensity evidence under ER

404(b). We agree with the State.

      "[E]vidence of prior misconduct is presumptively inadmissible." State v.

Gresham, 173 Wn.2d 405,421, 269 P.3d 207(2012).

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident.

ER 404(b). The admission of evidence of other crimes "depend[s]on its relevance

and the balancing of its probative value and danger of unfair prejudice; the list of

other purposes in the second sentence of ER 404(b) is merely illustrative."

Gresham, 173 Wn.2d at 420.

       To admit evidence of a person's prior acts, "the trial court must(1)find by a

preponderance of the evidence that the misconduct occurred, (2) identify the

purpose for which the evidence is sought to be introduced,(3) determine whether

the evidence is relevant to prove an element of the crime charged, and (4) weigh

the probative value against the prejudicial effect." State v. Vy Thanq, 145 Wn.2d

630, 642,41 P.3d 1159(2002).

      "The party seeking to introduce [ER 404(b)] evidence has the burden of

establishing the first, second, and third elements." Gresham, 173 Wn.2d at 421.

       Here, before trial, Pierce sought to admit evidence of a 2006 robbery charge

against Reed. The State had charged Reed with first degree robbery based on

the victim's claim that Reed threatened him with a gun and demanded money. The

State's inability to find the victim resulted in the charge being dismissed without


                                        21
No. 74363-5-1/ 22


prejudice. The trial court barred evidence of Reed's prior charge under ER 404(b)

as impermissible propensity evidence.

      The trial court did not err in its ruling. Pierce had the burden of establishing

that evidence of Reed's prior robbery charge was admissible under ER 404(b).

But he failed to prove that Reed had committed the acts underlying his 2006

robbery charge by a preponderance of the evidence. The charge was based solely

on the victim's report to police and identification of Reed from a photo lineup. But

the charge was not brought to trial because the victim could not be found.

       Without additional evidence, the dismissed charge is insufficient to

demonstrate that Reed committed the alleged robbery. Therefore, we conclude

that the trial court properly denied admission of the robbery charge as

impermissible propensity evidence under ER 404(b).

       Bibb's Prior Gun Ownership

       Pierce argues that the trial court abused its discretion when it did not admit

evidence of Bibb's prior gun ownership. The State contends that the trial court

properly excluded the evidence under ER 404(b). We agree with the State.

       Evidence of prior acts is "not admissible to prove the character of a person

in order to show action in conformity therewith." ER 404(b).

      A defendant's previous ownership of guns may be admissible when it is

circumstantial evidence connecting him or her to the particular weapons that were

used in the crime at issue. See State v. Hartzell, 156 Wn. App. 918, 930-32, 237

P.3d 928 (2010) (evidence connecting the defendants to the guns used in the

crime was admissible as circumstantial evidence where its probative value was not


                                        22
No. 74363-5-1 /23


outweighed by its prejudicial effect). But evidence that the defendant was in

possession of a gun that was not used in the crime at issue may be barred as

impermissible propensity evidence. State v. Freeburg, 105 Wn. App.492, 500-01,

20 P.3d 984(2001)(the trial court erred in admitting evidence that defendant was

armed when arrested over two years after murder at issue occurred because the

evidence was prejudicial and had little probative value, in part because the gun

was not the one used in the murder).

       Here, Pierce moved to admit evidence showing that Bibb had previously

owned guns of the same caliber as those used in the incident and that he had

experience with and knowledge of guns. The trial court excluded evidence of

Bibb's prior gun ownership under ER 404(b), but allowed Pierce to ask Bibb

whether he was armed at Woodland Park, whether he owned guns of the same

caliber as those used in the incident when the incident occurred, and whether he

had been able to tell if the gun that had been fired at him was a revolver or a

semiautomatic.

       The trial court properly determined that evidence of Bibb's prior ownership

of guns of the same caliber as those used in the incident was inadmissible under

ER 404(b). Bibb testified that he was not armed at Woodland Park on the day of

the incident. There was no evidence at trial that Bibb had ever owned or

possessed the weapons that were used during the incident.45 Absent such

evidence, Pierce cannot show that Bibb's previous gun ownership was relevant to




45Testimony at trial indicated that Lyons provided Bienhoff's group with two handguns,
including a .45 caliber pistol.
                                         23
No. 74363-5-1/ 24


the present case beyond showing that Bibb was a gun owner who participated in

an incident that involved guns. Thus, evidence of Bibb's past ownership of guns

constitutes impermissible propensity evidence under ER 404(b), and we conclude

that the trial court did not abuse its discretion when it excluded the evidence.46

                         Evidence of Consciousness of Guilt

       Pierce argues that the trial court abused its discretion when it admitted

evidence that he assaulted Barnes while both were being held prior to trial, in

violation of ER 404(b). Because the evidence was properly admitted on the issue

of Pierce's consciousness of guilt, we disagree.

       To admit evidence of a person's prior acts,"the trial court must(1)find by a

preponderance of the evidence that the misconduct occurred, (2) identify the

purpose for which the evidence is sought to be introduced,(3) determine whether

the evidence is relevant to prove an element of the crime charged, and (4) weigh

the probative value against the prejudicial effect." Vy Than% 145 Wn.2d at 642;

ER 404(b). Evidence of prior misconduct is presumptively inadmissible, and the



46 Pierce argues that the trial court should have admitted evidence of Bibb's prior gun
ownership if it was relevant because defendants have a lower bar of admissibility under
ER 404(b), relying on State v. Jones, 168 Wn.2d 713, 723-24, 230 P.3d 576 (2010)
(holding that highly probative and relevant evidence of the victim's alleged consensual
participation in a drug and sex party was admissible despite being barred by Washington's
rape shield statute, RCW 9A.44.020, in order to protect the defendant's Sixth Amendment
right to present a defense); see also United States v. Aboumoussallem, 726 F.2d 906,
911-12 (2d Cir. 1984); New Jersey v. Garble, 76 N.J. 445, 452-53, 388 A.2d 587 (N.J.
1978).
        This is unpersuasive. Bibb testified that he was not armed at Woodland Park on
the day of the incident. Pierce's offered evidence that Bibb had owned guns of the same
caliber as those used in the incident does not rise to the level of the evidence at issue in
Jones in which the defendant's offered evidence constituted the entirety of his defense.
Pierce's citation to federal and New Jersey case law analyzing rules of evidence not at
issue in the present case are both inapplicable to this case and unpersuasive in their
substantive content. We reject Pierce's argument.
                                            24
No. 74363-5-1 /25


party offering the evidence has the burden of establishing that the misconduct

occurred, the purpose for which the evidence is introduced, and the relevancy of

the evidence. Gresham, 173 Wn.2d at 420-21.

       Evidence may be admissible to show a defendant's consciousness of guilt

as to the charged crime. State v. Norlund, 113 Wn. App. 171, 188, 53 P.3d 520

(2002). For evidence to be admissible on the issue of consciousness of guilt, it

must be "sufficient so as to create a reasonable and substantive inference" that

the action was taken in "reaction to a consciousness of guilt." State v. Price, 126

Wn. App. 617,645, 109 P.3d 27(2005).

      "Conduct on the part of an accused person . . . having for its purpose the

prevention of witnesses appearing and testifying at his [or her] trial is a

circumstance for the jury to consider as not being likely to be the conduct of one

who was conscious of his innocence." State v. Kosanke, 23 Wn.2d 211, 215, 160

P.2d 541 (1945); see, e.g., State v. Saenz, 156 Wn. App. 866, 874, 234 P.3d 336

(2010), aff'd in part and rev'd in part, 175 Wn.2d 17, 283 P.3d 1094 (2012)

(evidence that defendant used sign language to threaten a witness and that

witness was assaulted by other inmates who said "word was sent over,"

assumedly by the defendant, was admissible to show consciousness of guilt).

       A trial court's evidentiary rulings are reviewed for abuse of discretion.

Halstien, 65 Wn. App. at 849-50.

       Here, over Pierce's objection, the trial court allowed the State to admit

evidence that Pierce assaulted Barnes while they were both in jail 10 months after

the incident occurred. At trial, Barnes testified that Pierce assaulted him on


                                        25
No. 74363-5-1 /26


December 13, 2012, while both were waiting in a holding cell at the King County

Courthouse prior to a court hearing. Barnes testified about his injuries and that he

was placed in solitary confinement for his own safety.               Two King County

Courthouse guards also testified about the incident, with one describing Pierce

standing over Barnes while telling Barnes to stay on the ground. The State

submitted a recorded jail telephone call in which Pierce said that he knocked out

Barnes because he "snitched."47          Pierce testified that he assaulted Barnes

because "[Barnes] lied" and the "opportunity presented itself?"

       The evidence of Pierce's assault of Barnes was properly admitted under ER

404(b)to show Pierce's consciousness of guilt. The underlying act was undisputed

and properly identified as evidence to show Pierce's consciousness of guilt. The

trial court noted that the evidence was relevant, as Barnes's testimony that Pierce

was at Woodland Park would contradict Pierce's initial alibi that he was not present

at the incident.49

       The evidence carried significant probative value to the State's case that

Pierce was a participant in the incident. Barnes was prepared to testify that Pierce

was at Woodland Park and to provide details of Pierce's involvement in the

incident.50 Thus, Pierce's assault on Barnes, especially coupled with his statement




47 Ex. 103(jail telephone call recording: Dec. 25, 2012; 9.42 at 2 min., 54 sec.-2 min., 55
sec.).
48 RP (Oct. 22, 2015) at 3225.
48 While arguing about the admissibility of the evidence, the parties discussed Pierce's
alibi that he was not present at Woodland Park, although Pierce later testified about what
occurred during the incident.
88 Pierce may have also been aware that he was identified and charged with murder
because of Barnes.
                                           26
No. 74363-5-1/ 27


that Barnes "snitched" on him during the jail phone call, was highly probative on

the issue of whether Pierce was motivated by a consciousness of guilt.

       Further, the potential prejudice of the evidence against Pierce was

insufficient to outweigh its probative value. Pierce was charged with first degree

murder predicated on robbery with a firearm enhancement. The evidence against

him involved a non-fatal assault. Although both involve violence toward another

individual, an assault does not show propensity to commit first degree felony

murder predicated on robbery. Further, the jury could weigh Pierce's statements

that he assaulted Barnes because he "snitched" against his rationale that Barnes

"lied" about Pierce's involvement in determining what inference to draw from the

evidence. Thus, although the evidence may have prejudiced Pierce, it was

insufficient to overcome the evidence's probative value.

       Pierce argues that the evidence of Pierce's assault of Barnes was unfairly

prejudicial because it was likely to arouse an emotional response from the jury.

This is unpersuasive.

       Evidence causes unfair prejudice where it "is more likely to arouse an

emotional response than a rational decision by the jury." State v. Gould, 58 Wn.

App. 175, 183, 791 P.2d 569 (1990). Admission of prior criminal convictions or

actions may be likely to elicit such an emotional response from a jury if they involve

serious criminal allegations that are unrelated to the charge at issue in the present

case. See, e.g., State v. Johnson, 90 Wn. App. 54, 63, 950 P.2d 981 (1998)(trial

court erred when it admitted evidence of defendant's unrelated prior rape




                                         27
No. 74363-5-1 /28


conviction in assault case where defendant offered to stipulate to the prior violent

offense without naming the offense).

          Here, Pierce's assault of Barnes is not the type of offense that is likely to

elicit an emotional response from the jury that would override its rational decision-

making capacity. Further, as discussed above, Pierce's assault was related to the

underlying charge in the present case to the extent it demonstrated his

consciousness of guilt. We reject Pierce's argument.

         Pierce argues that the evidence of his assault was equivocal because it

could either show that Pierce acted on his consciousness of guilt or that it

demonstrated his frustration with being framed. Evidence of consciousness of guilt

need not be unequivocal to be admissible. See Price, 126 Wn. App. at 645. As

discussed above, evidence of Pierce's assault of Barnes leads to a reasonable

inference that he did so based on his consciousness of guilt. The fact that it could

lead to other reasonable inferences does not render the evidence inadmissible.

We reject this argument.

         Pierce contends that the prejudicial value of the evidence was exacerbated

when the prosecutor committed flagrant and ill-intentioned misconduct by stating

that he "bragged" about assaulting Barnes during closing argument.51

         If a defendant does not object at trial, he or she waives a claim of

prosecutorial misconduct unless he or she shows that "(1)'no curative instruction

would have obviated any prejudicial effect on the jury' and (2) the misconduct

resulted in prejudice that'had a substantial likelihood of affecting the jury verdict."


51   RP (Oct. 29, 2015) at 3776.
                                           28
No. 74363-5-1/ 29


State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting State v.

Thorgerson, 172 Wn.2d 438,455, 258 P.3d 43(2011)).

       Here, Pierce did not object to the prosecutor's statement that Pierce

"bragged" about assaulting Barnes during argument. On appeal, Pierce has not

demonstrated that a curative instruction by the trial court would not have cured the

alleged misconduct. Similarly, he has not demonstrated that there is a substantial

likelihood that the jury's verdict was affected by the statement. Therefore, Pierce

has not carried his burden of establishing prosecutorial misconduct, and we reject

this argument.

       In sum,the trial court considered each of the ER 404(b)factors and properly

concluded that each was satisfied. Therefore, we conclude that the trial court did

not abuse its discretion when it determined that evidence of Pierce's assault of

Barnes was admissible under ER 404(b)on the issue of his consciousness of guilt.

                   Admission of Evidence in Violation of ER 613

       Pierce argues that the trial court erred when it admitted testimony of Hiram

Warrington to impeach Lyons's testimony. According to Pierce, the testimony

included substantive content of two out of court conversations, and thereby

violated ER 613.      Because Pierce has not demonstrated that Warrington's

testimony violated ER 613 or that the trial court's limiting instruction regarding the

testimony was insufficient, we disagree.

       ER 613 provides that, when examining a witness concerning his or her prior

statement, "the court may require that the statement be shown or its contents

disclosed to the witness at that time, and on request the same shall be shown or


                                         29
No. 74363-5-1/ 30


disclosed to opposing counsel." ER 613(a). ER 613 also provides that extrinsic

evidence of a witness's prior inconsistent statement is not admissible unless the

witness has an opportunity to refute or explain the statement and the opposing

party has an opportunity to question the witness. ER 613(b).

       Here, at trial, Warrington testified that Lyons told him about the incident on

the day that it occurred. He also testified that Pierce came to Lyons's house and

Lyons asked him if he had gotten rid of everything. Pierce responded that he had

gotten rid of everything in Carkeek Park, which was close to Lyons's house. Lyons

testified that he did not meet Warrington at his house after the incident or discuss

the incident with Pierce and Warrington later that week. Pierce denied discussing

the incident with Lyons when Warrington was present.

       Pierce has not demonstrated that Warrington's testimony about the alleged

conversations violated ER 613. Pierce does not contend that he and Lyons were

denied the opportunity to explain prior inconsistent statements, or that the interests

of justice barred the admission of the testimony.           He has not otherwise

demonstrated that ER 613 bars Warrington's testimony. We reject this argument.

       Pierce also argues that the trial court erred in admitting the content of

Warrington's testimony because the State called Lyons for the primary purpose of

admitting impeachment evidence that was otherwise inadmissible, citing State v.

Lavaris, 106 Wn.2d 340, 345, 721 P.2d 515 (1986). This is unpersuasive. Lyons

offered substantial testimony at trial, including that he provided the group with two

guns, how Pierce became involved in the incident, and the events that transpired

during the incident. Warrington's testimony only impeached Lyons's statements


                                         30
No. 74363-5-1/ 31


that he did not talk with Warrington or have a conversation with Pierce with

Warrington nearby following the incident. Thus, the record demonstrates that the

State did not call Lyons for the primary purpose of admitting otherwise inadmissible

evidence.

       Pierce argues that the trial court's oral limiting instruction to the jury to only

consider Warrington's testimony for the purpose of impeaching Lyons's credibility

was ineffective, citing State v. Hancock, 109 Wn.2d 760, 763-64, 748 P.2d 611

(1988). In State v. Hancock, the court discussed ER 607 and prohibited the State

from calling a witness for the primary purpose of admitting inadmissible evidence.

109 Wn.2d at 763-64. But the court also stated that, "if counsel wishes to restrict

the jury's use of evidence, it must request an appropriate limiting instruction. We

note that no such limiting instruction was requested in this case." Hancock, 109

Wn.2d at 767. Here, unlike in Hancock, the trial court gave a limiting instruction to

the jury to only consider Warrington's testimony for the purpose of impeaching

Lyons's testimony. Pierce's argument ignores that Hancock endorsed instructing

the jury on this issue, and does not stand for the proposition that limiting

instructions are ineffective. We reject this argument.

                         Judicial Comment on the Evidence

       Pierce argues that the trial court improperly commented on the evidence

when it told the jury that Lyons made oral assertions to Warrington. Pierce

contends that the trial court's limiting instruction to the jury regarding Warrington's

testimony implied that the conversation occurred, where that fact was disputed at

trial. Because the trial court's limiting instruction did not convey the judge's


                                          31
No. 74363-5-1 / 32


personal opinion to the jury or inform the jury whether he believed Warrington's

testimony, we disagree.

      "Judges shall not charge juries with respect to matters of fact, nor comment

thereon, but shall declare the law." WASH. CONST. art. IV, § 16. This provision

prevents the jury "from being influenced by knowledge conveyed to [them] by the

court as to the court's opinion of the evidence submitted." Heitfeld v. Benevolent

& Protective Order of Keglers, 36 Wn.2d 685, 699, 220 P.2d 655 (1950).

      "An impermissible comment is one which conveys to the jury a judge's

personal attitudes toward the merits of the case or allows the jury to infer from what

the judge said or did not say that the judge personally believed or disbelieved the

particular testimony in question." Hamilton v. Dep't of Labor & Indus., 111 Wn.2d

569,571,761 P.2d 618(1988). A court's improper comment giving its opinion may

be express or implied. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).

      The prohibition on judicial comments on the evidence is strictly applied. City

of Seattle v. Arensmeyer,6 Wn. App. 116, 120, 491 P.2d 1305 (1971). A claim of

improper judicial comment implicates manifest constitutional error and may be

raised for the first time on appeal. Levy, 156 Wn.2d at 719.

       Appellate courts review whether an instruction amounts to a comment on

the evidence de novo. State v. Butler, 165 Wn. App. 820, 835, 269 P.3d 315

(2012).

       Here, Warrington testified that he had a conversation with Lyons on the day

of the incident, and that he was present when Lyons and Pierce discussed the

incident. Lyons denied that either conversation occurred. While Warrington was


                                         32
No. 74363-5-1 / 33


testifying that Lyons had told him about the incident on the day it occurred, the trial

court instructed the jury that "fflestimony regarding any oral assertions made by

Ray Lyons to Hiram Warrington may be considered by you only for the purpose of

impeaching Ray Lyons'[s] credibility. You may not consider it for any other

purpose."52

       The trial court's limiting instruction to the jury did not constitute an

impermissible judicial comment on the evidence because it did not convey the trial

court's attitude toward the merits of the case or belief in Warrington's testimony to

the jury. The trial court's limiting instruction directed the jury to only consider

testimony regarding any oral assertions made by Lyons to Warrington for the

purpose of impeaching Lyons's credibility. The instruction did not reference the

oral assertions or otherwise remove the determination of whether the oral

assertions occurred from the jury. Also, the focus of the trial court's instruction

was to limit the jury's consideration of Warrington's testimony, not to establish the

factual basis of that testimony.

       Further, the trial court's limiting instruction did not favorably compare

Warrington's credibility to that of Lyons's. Warrington's testimony was offered to

impeach Lyons's testimony. The trial court's limiting instruction simply told the jury

to consider his testimony for this purpose alone, rather than for the substance of

Lyons's alleged statements. It did not suggest that Warrington himself was

credible or that the trial court personally believed Warrington's testimony.53



52RP (Oct. 20, 2015) at 2783.
53 Pierce argues that the trial court's limiting instruction improperly weighed in on
Warrington's and Lyons's credibility, and thereby impugned Pierce's credibility. Pierce
                                         33
No. 74363-5-1 /34


       Thus, the trial court's limiting instruction did not convey the court's attitudes

toward the merits of the case or decide a disputed issue of fact. We conclude that

the trial court's limiting instruction was not an impermissible comment on the

evidence.

                         Excusable Homicide Jury Instruction

        Pierce argues that the trial court erred when it declined to instruct the jury

on excusable homicide. Even though we have reversed his conviction on other

grounds, we reach the alleged instructional issue since it may be argued again

upon retrial. Because an instruction on excusable homicide was not appropriate

in light of Pierce's charged crime and the parties' theories at trial, we disagree.54

       "A defendant in a criminal case is entitled to have the jury fully instructed on

the defense theory of the case." State v. Staley, 123 Wn.2d 794, 803, 872 P.2d

502(1994). Failure to fully instruct the jury is prejudicial error. State v. Riley, 137

Wn.2d 904, 908 n.1, 976 P.2d 624 (1999).

        First or second degree murder may be based on a killing that occurs in the

course of and in furtherance of a felony or in immediate flight therefrom. RCW

9A.32.030(1)(c); RCW 9A.32.050(1)(b). The State must prove that the defendant

had the intent required to commit the underlying felony, not the intent required to


does not cite to legal authority in support of his assertion that an instruction limiting the
jury's consideration of evidence to the issue of witness credibility constitutes a comment
on the evidence. We reject this argument. RAP 10.3(a)(6).
54 The State first argues that Pierce cannot raise this argument on appeal because he did
not submit a jury instruction on excusable homicide or otherwise take exception to the trial
court's refusal to so instruct the jury. Generally, a party must request an instruction or
object to its rejection to preserve the issue on appeal. State v. Scott, 110 Wn.2d 682,685-
86, 757 P.2d 492 (1988); CrR 6.15(c). Here, Bienhoff proposed the jury instruction on
excusable homicide, and Pierce joined Bienhoff's exception to the trial court's rejection of
the proposed instruction. We conclude that Pierce may raise this issue on appeal.
                                            34
No. 74363-5-1/ 35


prove first or second degree murder. State v. Craig, 82 Wn.2d 777, 781-83, 514

P.2d 151 (1973). "Even if the murder is committed more or less accidentally in the

course of the commission of the predicate felony, the participants in the felony are

still liable for the homicide." State v. Bolar, 118 Wn. App. 490, 504, 78 P.3d 1012

(2003)(citing State v. Leech, 114 Wn.2d 700, 708, 790 P.2d 160 (1990)).

         "Homicide is excusable when committed by accident or misfortune in doing

any lawful act by lawful means, without criminal negligence, or without any unlawful

intent." RCW 9A.16.030.

         "[A] trial court's refusal to give an instruction [to the jury] based on a ruling

of law is reviewed de novo." State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883

(1998).

         Here, Pierce was charged with murder in the first degree by reason of

causing Reed's death while committing or attempting to commit the crime of

robbery in the first degree. Pierce argued that the trial court should instruct the

jury on excusable homicide with modified self-defense language.55

         The trial court declined to instruct the jury on excusable homicide. The trial

court concluded that Pierce and Bienhoff could not argue that Bienhoff lawfully

used force during the incident because self-defense is not a defense to robbery.

Further, the trial court noted that the jury's decision hinged on whether they found

that Pierce and Bienhoff had attempted to.rob Reed. If the jury determined that

Pierce and Bienhoff did not attempt to rob Reed, Pierce would not be guilty of the

charged crime. But if the jury determined that Pierce and Bienhoff did attempt to


55   Pierce did not submit a proposed excusable homicide instruction.
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rob Reed, then justifiable homicide was not available because Bienhoffs use of

force was not done during a lawful act.

      The trial court did not err when it declined to instruct the jury on excusable

homicide. For an excusable homicide instruction to be available, Pierce would

have to demonstrate that Bienhoff was acting lawfully by lawful means. A

determination that Bienhoff was acting in furtherance of or with intent to commit

robbery when Reed died would necessarily establish that he was not acting

lawfully by lawful means. Therefore, if the State carried its burden of proving that

Bienhoff caused Reed's death while he was acting furtherance of or with intent to

commit robbery, an instruction on excusable homicide would be inappropriate.

       Further, Pierce's theory at trial was that he and Bienhoff intended to sell

Reed marijuana. Pierce claimed that Reed's death was an accident that occurred

when Reed pulled out a gun during the transaction. But even if the jury determined

that Pierce established his theory of the case, they would not reach the issue of

whether Reed's death was an excusable homicide. Pierce was solely charged

with felony murder predicated on robbery. Robbery was a necessary prerequisite

for the felony murder charge.

      Thus, if the jury determined that Bienhoff met Reed with the intent to sell

him marijuana, rather than the intent to rob him, the State would have failed to

establish the predicate felony and Pierce would have been found not guilty.

Without the underlying robbery, the jury would never reach the issue of whether

Bienhoff caused Reed's death. Thus, under the facts of the present case, even if




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Pierce successfully argued his theory of the case at trial, the trial court did not err

in declining to instruct the jury on excusable homicide.

       Pierce argues that binding Washington case law requires that the jury be

instructed on excusable homicide in felony murder cases where facts support the

instruction. We disagree.

       In State v. Brightman, the defendant was charged with premeditated first

degree intentional murder and in the alternative with first degree felony murder

based on robbery after he allegedly killed the victim during a car theft. 155 Wn.2d

506, 509-11, 122 P.3d 150(2005). The Washington Supreme Court noted that the

proper defense to an accidental killing is excusable homicide, not justifiable

homicide as argued by the defendant at trial. Brightman, 155 Wn.2d at 513, 525-

26. After reversing for an open courts violation, the Washington Supreme Court

noted that, if the defendant argued on remand that he "committed an excusable

homicide that was precipitated by an act of self-defense," the trial court would have

to determine whether he had raised sufficient supporting evidence. Brightman,

155 Wn.2d at 526.

       In State v. Slaughter, the defendant was charged with second degree

intentional murder and in the alternative with second degree felony murder based

on assault. 143 Wn. App. 936, 941, 186 P.3d 1084(2008). The Court of Appeals

affirmed the trial court's instruction to the jury on excusable homicide where the

defendant argued that, after he and the victim struggled over possession of a crack

pipe, he fatally stabbed the victim while defending himselffrom the victim's assault.

Slaughter, 143 Wn. App. at 940-41, 944-47. The Court of Appeals noted that the


                                          37
No. 74363-5-1 /38


facts of the case supported the defendant's request for an excusable homicide

instruction. Slaughter, 143 Wn. App. at 946-47.

      The cases cited by Pierce are distinguishable from the present case.

Brightman and Slaughter involved charges of intentional murder with charges in

the alternative of felony murder. As discussed above, Pierce was solely charged

with felony murder predicated on robbery. He was not charged with a separate

violent crime that could necessitate giving an instruction on excusable homicide.

Thus, neither Brightman nor Slaughter control the outcome of the present case. In

light of Pierce's charged offense, the facts of the present case, and the parties'

theories at trial, the jury would not reach the issue of whether Reed's death was

an excusable homicide. The trial court properly declined to issue an excusable

homicide instruction.

                          Calculation of Offender Score

      Pierce argues that the trial court miscalculated his offender score because

it counted two prior nonviolent juvenile felony offenses as 1 point each, instead of

1/2 point each. Because the trial court's offender score calculation shows that it

counted each of Pierce's two prior nonviolent juvenile felony offenses as 1/2 point,

we disagree.

       First degree murder is a serious violent offense. RCW 9.94A.030(46)(a)(i).

       If the present conviction is for a serious violent offense, count three
       points for prior adult and juvenile convictions for crimes in this
       category, two points for each prior adult and juvenile violent
       conviction (not already counted), one point for each prior adult
       nonviolent felony conviction, and 1/2 point for each prior juvenile
       nonviolent felony conviction.



                                         38
No. 74363-5-1 / 39


RCW 9.94A.525(9). Assault in the second degree is a violent offense. RCW

9.94A.030(55)(viii).

       Calculation of a defendant's offender score is reviewed de novo. State v.

Mutch, 171 Wn.2d 646, 653, 254 P.3d 803(2011).

       Here, Pierce's criminal history included six prior adult nonviolent felony

convictions, one prior adult violent conviction, and two prior juvenile nonviolent

felony convictions.56 This resulted in 6 total points for his prior adult nonviolent

felony convictions, 2 total points for his prior adult violent conviction, and 1 total

Point for his two juvenile nonviolent felony convictions for an offender score of 9.

The trial court calculated Pierce's offender score as 9. We conclude that the trial

court did not err in calculating Pierce's offender score.

                       Imposition of Legal Financial Obligations

       Pierce argues that the trial court erred when it imposed $600 in legal

financial obligations (LF0s) upon him.           Because the challenged LFOs are

mandatory, we disagree.

       "When any person is found guilty in any superior court of having committed

a crime . . . there shall be imposed by the court upon such convicted person a

penalty assessment." RCW 7.68.035(1)(a). The imposed penalty "shall be five




56 Pierce's prior adult nonviolent felony convictions were one count of adult residential
burglary, two counts of adult possession of a stolen vehicle, one count of adult possession
of stolen property, one count of adult attempt to elude pursuing police, and one count of
adult theft in the second degree. Pierce's prior adult violent conviction was one count of
second degree assault. Pierce's two prior juvenile nonviolent felony convictions were one
count of juvenile theft in the second degree and one count of juvenile taking a motor
vehicle without permission.
                                           39
No. 74363-5-1 /40


hundred dollars for each case or cause of action that includes one or more

convictions of a felony." RCW 7.68.035(1)(a).

       "Every sentence imposed for a crime specified in RCW 43.43.754 must

include a fee of one hundred dollars. The fee is a court-ordered legal financial

obligation as defined in RCW 9.94A.030 and other applicable law."                   RCW

43.43.7541.      "A biological sample must be collected for purposes of

[deoxyribonucleic acid (DNA)] identification analysis from: (a) Every adult or

juvenile individual convicted of a felony." RCW 43.43.754. Both victim penalty

assessment (VPA) and DNA collection fees are mandatory LFOs that are not

subject to trial courts' discretion. State v. Mathers, 193 Wn. App. 913, 918-21, 376

P.3d 1163(2016).

       Appellate courts review questions of statutory interpretation de novo. State

v. Hirschfield, 170 Wn.2d 536, 541-42, 242 P.3d 876 (2010).

       Here, the trial court imposed LFOs on Pierce consisting of a $500 VPA and

a $100 DNA collection fee. These LFOs are mandatory under RCW 7.68.035 and

RCW 43.43.7541, regardless of indigency. Therefore, the trial court did not err

when it imposed $600 in LFOs on Pierce.57

       Pierce argues that enforcement of the LFOs would infringe his constitutional

equal protection rights and his Fourteenth Amendment rights under Fuller v.

Oregon, 417 U.S. 40, 45-46, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974). Pierce's


57 Pierce contends that the trial court should have waived all LFOs because he is indigent,
relying on State v. Blazina, 182 Wn.2d 827, 344 P.3d 680(2015) and related cases. This
is unpersuasive. In Blazina, the court analyzed RCW 10.01.160(3), which provides that a
court "shall not order a defendant to pay costs unless the defendant is or will be able to
pay them." 182 Wn.2d at 839. The present case does not involve RCW 10.01.160(3).
We reject Pierce's analogy to Blazina.
                                           40
 No. 74363-5-1/41


 arguments have been previously rejected. See Mathers, 193 Wn. App. at 925-26

 (rejecting equal protection and Fourteenth Amendment arguments against

 imposition of mandatory LF0s).58

        Reversed and remanded for a new trial.




                                                          ir:Ic/k”)
 I CONCUR:




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                             k)(1




 58 Pierce argues that imposition of the LFOs violated his substantive due process rights.
 Substantive due process challenges to DNA collection and victim penalty assessment
 mandatory LFOs are not ripe for review until the State attempts to impose sanctions for
 failure to pay the fee. State v. Shelton, 194 Wn. App. 660, 670-75, 378 P.3d 230 (2016);
 State v. Curry, 118 Wn.2d 911, 917-18, 829 P.2d 166 (1992); see State v. Blank, 131
 Wn.2d 230, 245, 930 P.2d 1213 (1997) (holding that "it is not fundamentally unfair to
 impose a repayment obligation without notice and an opportunity to be heard prior to the
 decision to appeal, provided that before enforced payment or sanctions for nonpayment
 may be imposed, there is an opportunity to be heard regarding ability to pay"). Pierce has
 not demonstrated that the State has attempted to sanction him for failing to pay the fees,
 and thus his claim is not ripe for review.
                                            41
