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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 70347-1-


                     Respondent,                      DIVISION ONE

             v.



JASON JACOB-MICHAEL MACK,                             UNPUBLISHED

                     Appellant.                       FILED: July 29, 2013




       Cox, J. - Jason Mack was convicted of second degree felony murder, but

the jury could not reach a verdict on the alternative charge of second degree

intentional murder. On appeal, he claims that the trial court abused its discretion

when it denied his request for a lesser included offense instruction for the

intentional murder charge. He further asserts that the prosecutor committed

misconduct during closing argument that requires reversal. Lastly, he contends

the trial court violated his right to confrontation when it excluded evidence related

to a trial witness's potential bias. We disagree with all claims and affirm.

       In 2009, Brian Garner and his girlfriend, Tiffany Sheppler, went to a bar in

Longview, Washington. Sheppler and Garner got into an argument with Mack

and Tashenna Woodward, Mack's girlfriend.

       Later that night, Garner got into a physical fight with two other men, Lee

Pope and Timothy Mitchell. During the fight, Garner was stabbed in the chest.

Three witnesses testified that they saw Mack briefly join the fight and make a
No. 70347-1-1/2



stabbing motion at Garner's chest. Soon after, Garner died from the wound. An

autopsy revealed that a single edged blade caused a 3.75 to 4 inch wound and

cut his pulmonary artery.

      Woodward testified that Mack gave her a knife immediately after the fight

and told her that "the cops were coming because that guy got hurt or something."

Mack then fled the scene and went to his house to say goodbye to his child. He

eventually turned himself in Arizona and waived extradition.

      The State charged Mack with second degree intentional murder of Garner

(count I) and second degree felony murder as an alternative (count II). Both

counts included deadly weapon allegations.

      The jury was unable to reach a verdict for count I, but it found Mack guilty

of count II and the deadly weapon allegation.

       Mack appeals.

                  LESSER INCLUDED OFFENSE INSTRUCTION

       Mack argues that the trial court abused its discretion when it denied his

request for a lesser included first degree manslaughter jury instruction for count I

(second degree intentional murder). Specifically, he argues that he was entitled

to the manslaughter instruction because the evidence suggested only that he

intentionally stabbed Garner, but he did not intend to kill him.1 We disagree.




       1Appellant's Opening Brief at 12-13.
No. 70347-1-1/3



       In Washington, the right to a lesser included offense instruction is

statutory.2 A defendant is entitled to an instruction of a lesser included offense if
the two prongs of the State v. Workman test are met.3 Under the legal prong,
each element of the lesser offense must be a necessary element of the charged

offense.4 Under the factual prong, the evidence presented in the case must

support an inference that only the lesser offense was committed to the exclusion

ofthe charged offense.5
       The State correctly concedes that all the elements of RCW

9A.32.060(1 )(a) (first degree manslaughter) fall within the elements of RCW

9A.32.050(1 )(a) (second degree intentional murder).6 Thus, the legal prong of
the Workman test is satisfied. Thus, the issue is whether the factual prong is

satisfied.

       We view the evidence that purports to support a requested instruction in

the light most favorable to the party who requested the instruction at trial.7

       2 RCW 10.61.006 ("In all other cases the defendant may be found guilty of
an offense the commission of which is necessarily included within that with which
he or she is charged in the indictment or information.").

        3 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).

        4 State v. Berlin. 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997) (citing
Workman, 90 Wn.2d at 447-48).

        5 State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).

        6 Brief of Respondent at 12 (citing Berlin. 133 Wn.2d at 550-51 (holding
that "first and second degree manslaughter are lesser included offenses of
second degree intentional murder and instructions should be given to a jury when
the facts support such an instruction")).

        7 Fernandez-Medina, 141 Wn.2d at 455-56.
No. 70347-1-1/4



Where a trial court's refusal to give instructions is based on the facts of the case,

we review this factual determination for abuse of discretion.8 A trial court abuses

its discretion when its decision is manifestly unreasonable or based upon

untenable grounds or reasons.9
       Under RCW 9A.32.060(1 )(a), first degree manslaughter requires proof that

the defendant recklessly caused the death of another. In contrast, under RCW

9A.32.050(1 )(a), second degree intentional murder requires proof that the

defendant had "intent to cause the death of another person but without

premeditation" and that the defendant did "cause[ ] the death of such person or of

a third person."

       To determine whether the factual prong is satisfied, we must determine

whether there was evidence affirmatively establishing Mack's guilt of the lesser

offense, first degree manslaughter.10 "'It is not enough that the jury might simply
disbelieve the State's evidence.'"11 "If the evidence would permit a juryto

rationally find a defendant guilty of the lesser offense and acquit him of the

greater, a lesser included offense instruction should be given."12


       8 State v. LaPlant, 157 Wn. App. 685, 687, 239 P.3d 366 (2010).

       9 State v. Neal. 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).

      10 See, e.g., Berlin, 133 Wn.2d at 551; State v. Perez-Cervantes, 141
Wn.2d 468, 481, 6 P.3d 1160 (2000).

       11 Perez-Cervantes, 141 Wn.2d at 481 (quoting State v. Fowler, 114
Wn.2d 59, 67, 785 P.2d 808 (1990)).
       12
            Berlin, 133 Wn.2d at 551.
No. 70347-1-1/5



       In State v. Perez-Cervantes, the supreme court addressed whether the

trial court properly refused to give instructions on the lesser included offenses of

first degree and second degree manslaughter.13 In concluding that the trial court
did not err, it considered the argument that Perez-Cervantes only "meant to

assault Mr. Thomas, not kill" him.14 The court rejected this argument because

Perez-Cervantes was unable to "overcome the presumption that an actor intends

the natural and foreseeable consequences of his conduct."15 The court
explained that the State's evidence showed that Perez-Cervantes attacked

Thomas with a knife twice after Thomas had been kicked and beaten.16 The

court stated that a "jury may infer criminal intent from a defendant's conduct

where it is plainly indicated as a matter of logical probability."17 "Whatever Perez-
Cervantes' subjective intent, his objective intent to kill was manifested by the

evidence admitted at trial."18

       Here, the evidence shows that Mack intentionally stabbed Garner.

Whether the evidence also showed that Mack merely acted recklessly and not

intentionally when he did so is the question. Mack fails in his burden to

overcome the presumption that he intended the natural and foreseeable

       13 141 Wn.2d 468, 480-82, 6 P.3d 1160 (2000).

       14 jd, at 481.

       15 id

       16 \±

       17 Ji
       18 Id. at 482.
No. 70347-1-1/6



consequences of his action: stabbing Garner in the chest with a blade that

caused a 3.75 to 4 inch wound. Instead, he argues that there was no evidence

that he made statements about intending to kill Garner or intending to sever

Garner's pulmonary artery. But the absence of such statements does not negate

the objective showing of intent evidenced by his actions. As in Perez-Cervantes,

Mack fails to show that the trial court abused its discretion when it refused to give

Mack's requested instruction.

       Mack argues that only "slight[ ] evidence" is needed to support the lesser

included instruction. But the proper standard is whether there is evidence to

affirmatively establish that the defendant is guilty ofonly the lesser offense.19 For
the reasons we have already explained in this opinion, he fails to meet that

standard.

       Mack also contends that the jury's inability to reach a verdict for the

second degree intentional murder charge "shows the reasonableness of [the]

conclusion" that Mack intentionally stabbed Garner but did not intend to kill him.

Speculation on why the jury could not reach a verdict on the other charge does

not help. The fact remains that Mack failed to meet his burden to convince the

trial court that there was affirmative evidence that only the lesser crime was

committed.

       Finally, Mack argues the trial court's refusal to instruct on first degree

manslaughter denied him his Fourteenth Amendment right to due process. But

"due process requires that a lesser included offense instruction be given [only]

       19 Berlin, 133 Wn.2d at 551.
No. 70347-1-1/7



when the evidence warrants such an instruction."20 For the reasons discussed

above, the evidence in this case did not warrant an instruction on first degree

manslaughter. There was no denial of due process.

                        PROSECUTORIAL MISCONDUCT

       Mack argues that the prosecutor made improper statements during closing

argument that prejudiced him. Specifically, he argues that the prosecutor made

an improper "fill in the blank" argument. He also argues that the prosecutor

disparaged the role of defense counsel and impugned counsel's integrity. We

hold that Mack fails to establish that these comments require reversal due to

prejudice.

       A defendant claiming prosecutorial misconduct bears the burden of

establishing that the challenged conduct was both improper and prejudicial.21
"The court reviews a prosecutor's conduct in the full trial context, including the

evidence presented, the total argument, the issues in the case, the evidence

addressed in argument, and the jury instructions."22
       "Once a defendant establishes that a prosecutor's statements are

improper, we determine whether the defendant was prejudiced" under one of two

different ways.23 First, if the defendant objected to the allegedly improper


       20 Hopper v. Evans, 456 U.S. 605, 611, 102 S. Ct. 2049, 72 L. Ed. 2d 367
(1982).

       21 State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).

      22 State v. Calvin, No. 67627-0, 2013 WL 2325121, *5 (Wash. Ct. App.
May 28, 2013).

       23 State v. Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
No. 70347-1-1/8



statements, "the defendant must show that the prosecutor's misconduct resulted

in prejudice that had a substantial likelihood of affecting the jury's verdict."24

Second, ifthe defendant failed to object at trial, "the defendant is deemed to

have waived any error, unless the prosecutor's misconduct was so flagrant and il

intentioned that an instruction could not have cured the resulting prejudice."25
The supreme court has stated that "[rjeviewing courts should focus less on

whether the prosecutor's misconduct was flagrant or ill intentioned and more on

whetherthe resulting prejudice could have been cured."26

                             "Fill in the Blank" Argument

       Mack first argues that the prosecutor made an improper "fill in the blank"

argument during closing argument that prejudiced him. We conclude that this

argument was improper, but it was not prejudicial because it could have been

cured by a proper instruction.

       It is improper for a prosecutor to use a "fill in the blank" argument during

closing argument.27 A "fill in the blank" argument is when a prosecutor states
that the "jury must be able to articulate its reasonable doubt by filling in the




       24 Id,

       25 \±

       26 jd, at 762.

       27 Id. at 759-60.



                                           8
No. 70347-1-1/9



blank."28 This type of argument is improper because it "subtly shifts the burden
to the defense."29

       In State v. Emery, the supreme court concluded that the State made an

improper "fill in the blank argument."30 During its closing argument, the State,
without objection by the defendants, used a PowerPoint slide to state the

following:

       [l]n order for you to find the defendant not guilty, you have to ask
       yourselves or you'd have to say, quote, I doubt the defendant is
       guilty, and my reason is blank. A doubt for which a reason exists.
       If you think that you have a doubt, you must fill in that blank.[31]
The court explained this "fill in the blank" argument was improper.32 Despite this
conclusion, however, the court held that the defendants could not show that the

statement was "incurable or prejudicial."33 Because they did not object to the
slide at trial, the court considered whether they were prejudiced under the

"heightened standard": "[T]he defendant must show that (1) 'no curative

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




       28 id, at 760.

       29 id,
        30 174 Wn.2d 741, 759, 278 P.3d 653 (2012).

        31 Jd, at 750-51.

        32 id, at 759-60.

        33 Id. at 765.
No. 70347-1-1/10



misconduct resulted in prejudice that 'had a substantial likelihood of affecting the

jury verdict.'"34

        The court noted that "the prosecutor's remarks could potentially have

confused the jury about its role and the burden of proof."35 But the court
explained that these "misstatements . .. could have been cured by a proper

instruction."36

        If either [of the defendants] had objected at trial, the court could
        have properly explained the jury's role and reiterated that the State
        bears the burden of proof and the defendant bears no burden.
        Such an instruction would have eliminated any possible confusion
        and cured any potential prejudice stemming from the prosecutor's
        improper remarks. [The defendants'] claim necessarily fails and
        ouranalysis need go no further.'37'
Because they failed to establish prejudice, their prosecutorial misconduct claim

failed.38

        Here, Emery is instructive. During closing argument, the State, without

objection by Mack, gave the following description of reasonable doubt:

        A reasonable doubt is a doubt for which a reason can be given. If
        in your deliberations you have doubts, but you can't put them into
        words, you can't articulate them, you can't talk with your fellow
        jurors about them, other than just maybe I have some kind of doubt



        34 id, at 761-62 (quoting State v. Thoraerson, 172 Wn.2d 438, 455, 258
P.3d43(2011)).

        35 id, at 763.

        36 id, at 764.

        37 id,

        38 Id. at 765.



                                          10
No. 70347-1-1/11



       but I can't really express it, that's not a reasonable doubt. That's
       not a doubt that the law requires you be convinced beyond.'391
Like Emery, these statements imply that the jury must be able to put its doubts

"into words" or otherwise "articulate" them. Doing so subtly shifts the burden of

proof of guilt to the defendant. This is improper.

      The question is whether Mack, who did not object to the argument, has

failed to show that the "prosecutor's comment[s] engendered an incurable feeling

of prejudice in the mind of the jury."40 Here, as in Emery, had Mack objected, the
trial court could have explained that only the State bears the burden of proof.

Thus, Mack cannot show prejudice. Because he fails to establish prejudice, this

prosecutorial misconduct claim fails.

       Mack argues that the improper statement was "flagrant and ill-intentioned,

and that violated Mr. Mack's constitutional right to due process."41 We disagree
for the reasons we already explained. His conclusory argument to the contrary is

not persuasive.

                     Disparaging the Role of Defense Counsel

       Mack next argues that the State disparaged the role of defense counsel
and impugned counsel's integrity during rebuttal, and these statements

prejudiced him. We assume without deciding that some ofthe statements were

improper, but we disagree that Mack was prejudiced.


       39 Report of Proceedings (Nov. 2, 2011) at 1053.

       40 Emery, 174 Wn.2d at 762.

       41 Appellant's Reply Brief at 14.


                                           11
No. 70347-1-1/12



       "It is improper for the prosecutor to disparagingly comment on defense

counsel's role or impugn the defense lawyer's integrity."42 But, in general,
prosecutors are afforded wide latitude in making arguments to the jury and are

allowed to draw reasonable inferences from the evidence.43 Further, they are

entitled to make a fair response to the arguments ofdefense counsel.44
       Here, Mack points to multiple places in the prosecutor's rebuttal to support

this claim. At the beginning of the prosecutor's rebuttal, he stated that he is

happy to have the last word with the jury after defense counsel speaks: "That's

what I think is always kind of the entertaining part about this job is you get to see

what the defense is, what the stories are, what's thrown out there, and it never

fails to entertain, Iassure you. I've tried a lot of cases."45 Defense counsel
objected to the prosecutor's reference to "past cases." The court sustained the

objection.

       The prosecutor continued without objection, "[Defense counsel's] got a job
to do. His job, his duty, is to defend Mr. Mack. We will never see them get up

and say, 'Oh, boy, they got us.' It doesn't matter what the evidence is. Instead
we get a story. And it was a humdinger. It was quite a tale."46


       42 Thorqerson, 172 Wn.2d at 451.

       43 id, at 448.
       44 State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994).

       45 Report of Proceedings (Nov. 2, 2011) at 1086.

       46 Id. at 1087.



                                          12
No. 70347-1-1/13



      Later in rebuttal, the prosecutor said that defense counsel has "come up

with a story."47 "And it was a good one. It could have been a John Grisham
novel, it could have been a Lifetime movie, but it's not the evidence."48
                                                                            49
      We assume, without deciding, that these statements were improper.

Thus, the question is whether Mack has established prejudice.

       Mack only objected twice to the multiple comments he now claims were

improper. Moreover, Mack did not request either a curative instruction or mistrial
based on these statements. Accordingly, we conclude there is no showing of

prejudice.

       Mack first argues in his reply brief that the improper statements were not

harmless beyond a reasonable doubt. Generally, arguments first raised in a
reply are not addressed.50 For this reason, we do not address this argument.




       47 jd, at 1088.

       48 id, at 1088-89.
       49 See, e.g., Thorqerson, 172 Wn.2d at 450 (explaining that a prosecutor
impugned defense counsel's integrity when the prosecutor "accused the defense
of engaging in 'sl[e]ight of hand' tactics and used disparaging terms like 'bogus'
and 'desperation' to describe the defense") (alteration in original); State v.
Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008) (explaining that a prosecutor
disparaged the role of defense counsel when the prosecutor said the defense
counsel's argument was a "classic example of taking these facts and completely
twisting them to their own benefit, and hoping that you are not smart enough to
figure out what in fact they are doing.").
       50 Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
 P.2d 549 (1992); see RAP 10.3(c).


                                             13
No. 70347-1-1/14



For the same reason, we do not address Mack's argument that the alleged

misconduct involved "emotionally-laden phrases," which are "per se flagrant and

ill intentioned, and cannot be cured by instruction."51
   RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES

       Mack argues that the trial court violated his rights under the Confrontation

Clause by limiting the scope of his cross-examination of an adverse witness.

Specifically, he contends that the court erred when it excluded any reference to

Larry Lamson's plea agreement for a felony charge with one of the assistant

prosecutors in this trial. We disagree.

       A person accused of a crime has a constitutional right to confront his or

her accuser.52 The primary and most important component is the right to conduct
a meaningful cross-examination of adverse witnesses.53 Adefendant's right to
confrontation includes the right to engage in otherwise appropriate cross-

examination to show that witness is biased.54 But the right to cross-examine is

not absolute.55

       "A trial court may, in its discretion, reject cross-examination where the

circumstances only remotely tend to show bias or prejudice of the witness, where

       51
            Appellant's Reply Brief at 16.

       52 U.S. Const, amend. VI; Wash. Const, art. 1, § 22; State v. Darden, 145
Wn.2d 612, 620, 41 P.3d 1189 (2002).

       53 State v. Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998).

       54 Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 89 L Ed.
2d 674 (1986).

       55 Darden, 145 Wn.2d at 620.



                                             14
No. 70347-1-1/15



the evidence is vague, or where the evidence is merely argumentative and

speculative."56 We review a trial court's ruling on the admissibility of evidence for
abuse of discretion.57

       Here, the trial court determined that there was not a sufficient link between

Lamson's plea agreement for another case and his testimony in this case. The

court acknowledged that the plea agreement reduced Lamson's potential

sentence quite a bit from the standard range. But the court explained that there

are "a lot of reasons why somebody could get an exceptional sentence down."

The court granted the State's motion in limine because there was not a "clear tie"

between the plea agreement and this case.

       There was no abuse of discretion by the trial court. On this record, it was

entirely proper for the court to decide that there was an insufficient showing of

bias to allow cross-examination on this point in this trial.

       Mack argues that a sufficient link was established between Lamson's plea

agreement and this case. He points out that the assistant prosecutor with whom

Lamson negotiated the plea agreement in the other matter was now serving as

one of the assistant prosecutors in Mack's trial. He contends that "[u]nder these

circumstances, Lamson may have believed that his low sentence would be

placed in jeopardy if he failed to testify in accordance with the government's

wishes."58 This is purely speculative.


       56 State v. Roberts. 25 Wn. App. 830, 834, 611 P.2d 1297 (1980).

       57 Darden, 145 Wn.2d at 619.

       58 Appellant's Opening Brief at 22.

                                          15
No. 70347-1-1/16



       As Mack acknowledges, the assistant prosecutor who negotiated the plea

agreement with Lamson was not involved with Mack's case when Lamson

entered his plea. In fact, the assistant prosecutor represented to this trial court

that when he reached the plea agreement with Lamson he had "no notion or idea

that [Lamson] was a potential witness in" this case. He was not yet assigned to

Mack's case.


       Because we conclude that the trial court did not abuse its discretion, we

need not consider the State's argument that any error was harmless beyond a

reasonable doubt.

       We affirm the judgment and sentence.



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