                                                                          FILED 

                                                                     SEPTEMBER 9, 2014 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 31138-4-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )         OPINION PUBLISHED
MATTHEW DAVID LEONARD,                         )         IN PART
                                               )
                     Appellant.                )

       SIDDOWAY, C.J. -Matthew David Leonard was convicted following ajury trial

of second degree felony murder; the predicate felony alleged by the State was his second

degree assault ofthe victim, which resulted in death. Mr. Leonard argues on several

grounds that the felony murder provision of our second degree murder statute, RCW

9A.32.050(l )(b), should not be construed to apply when the predicate felony committed

by the defendant is an assault that results in death. He also challenges the to-convict

instruction given by the court and its findings that he has the present or future ability to

pay legal financial obligations (LFOs) imposed by the court.

       Following amendment in 2003, the second degree murder statute is not ambiguous.

All of Mr. Leonard's remaining arguments are foreclosed by controlling precedent-some

old, and some new. For that reason, and because Mr. Leonard's pro se statement of

additional grounds identifies no error or abuse of discretion by the trial court, we affirm.
No. 31138-4-111
State v. Leonard


                     FACTS AND PROCEDURAL BACKGROUND

       Matthew David Leonard was found guilty of second degree felony murder while

armed with a deadly weapon. The victim, Jason Linder, was killed in a fight between

patrons of a tavern in Yakima that began inside the tavern and continued outside, after

patrons were told by tavern management to leave. Mr. Linder was stabbed one time in

the chest by Mr. Leonard and died from loss of blood. The defense's theory at trial was

that Mr. Leonard had acted in self-defense and in the justifiable defense of his sister.

       At trial, the jury was instructed on both alternatives of the charged crime of second

degree murder (intentional murder and felony murder) and on first degree manslaughter

as a lesser included offense of second degree intentional murder. Self-defense and

justifiable homicide instructions were given as to each crime. The to-convict instructions

all included language that "[i]fyou find from the evidence that each of these elements has

been proved beyond a reasonable doubt, then it will be your duty to return a verdict of

guilty." Clerk's Papers at 130.

       The jury found Mr. Leonard not guilty of second degree intentional murder, but

guilty of second degree felony murder. It returned a special verdict that he was armed

with a deadly weapon at the time of commission of the crime. At sentencing, the trial

court found that Mr. Leonard has the current or future ability to pay the LFOs imposed by

the court, including costs of incarceration and medical care. Mr. Leonard appeals.




                                              2

No.31138-4-III
State v. Leonard


                                        ANALYSIS

       Mr. Leonard implicitly assigns error to the trial court's instruction on second

degree felony murder and the sufficiency of the evidence to support the jury's verdict of

guilt on that charge, arguing that (I) the second degree murder statute should be

interpreted to include assault as a predicate crime to felony murder only when the assault

was not the cause of death, (2) the second degree murder statute violates a defendant's

equal protection right, and (3) we should reconsider Washington courts' prior

unwillingness to adopt a "merger" rule for felony murder that treats an assault as merging

into the resulting homicide if the assault victim dies.

       Mr. Leonard also assigns error to the trial court's to-convict instructions as

misleading the jury as to its power to acquit, and to the court's findings that Mr. Leonard

has the current or future ability to pay LFOs. We address the issues in tum.

       I      History o/related challenges to Washington's second degree murder
                                           statute

       Mr. Leonard challenges Washington's second degree murder statute, RCW

9A.32.050, on three grounds, all of which are the same as or similar to objections that

defendants have raised for 50 years to the scope of second degree felony murder under

Washington law. We begin, then, with a history of those objections and the judicial

response, starting with the Washington Supreme Court's 1966 decision in State v. Harris,

69 Wn.2d 928, 421 P.2d 662 (1966).



                                              3

No.31138-4-III
State v. Leonard


       Former RCW 9.48.040(2) (1909) was challenged in Harris, and provided:

       The killing of a human being, unless it is excusable or justifiable, is murder
       in the second degree when­
               (1) Committed with a design to effect the death of the person killed
       or of another, but without premeditation; or
               (2) When perpetrated by a person engaged in the commission of, or
       in an attempt to commit, or in withdrawing from the scene of, a felony
       other than those enumerated in RCW 9.48.030 [robbery, rape, burglary,
       larceny or arson in the first degree].

The defendant in Harris was convicted of second degree felony murder under subsection

(2) of the statute. The predicate felony ("precedent" felony was the term in use at the

time) was Harris's second degree assault of the victim, whom he had shot, and who died

of her wound. Harris urged the court to adopt the New York "merger rule," under which

the predicate felony in a felony murder must constitute a crime independent of the

homicide. Under the merger rule, a felony assault-not being independent-merges into

the resulting homicide. State v. Thompson, 88 Wn.2d 13, 17, 558 P.2d 202, appeal

dismissed, 434 U.S. 898, 98 S. Ct. 290,54 L. Ed. 2d 185 (1977).

       The Harris court refused to adopt the New York merger rule. It reasoned that

New York adopted the rule in response to that state's criminalization of all felony murder

as first degree murder. Since "practically all" homicide deaths are the direct or indirect

result of an assault by the perpetrator, "under New York law, every homicide which was

not justifiable or excusable would amount to first-degree murder [and] all the second-

degree murder and manslaughter statutes would have been emasculated." Harris, 69


                                             4

No. 31138-4-III
State v. Leonard


Wn.2d at 933. Washington's criminal laws were less harsh; the legislature had provided

that only the felonies of robbery, rape, burglary, larceny and arson in the first degree

would support a charge of first degree felony murder. Other felonies, if resulting in

death, could only be the basis of a second degree murder charge. The Harris court found

"no reason" to adopt the merger rule "[i]n light of the distinctions made in our own

statutes." Id. at 932.

       A decade later, our Supreme Court was asked in Thompson to reconsider adoption

of the merger rule. By the time of its 1977 decision, the Supreme Court acknowledged

that "[ mlost states which have considered the question have adopted the merger rule,

resulting in a holding that only felonies independent of the homicide can support a felony

murder conviction." Thompson, 88 Wn.2d at 17. Nonetheless, our Supreme Court

adhered to its decision rejecting the rule. The court pointed out that courts universally

regarded the question of merger as one of statutory interpretation rather than

constitutional right, and noted that the Washington legislature had taken no action to

modify the second degree murder statute in response to Harris's refusal to read a merger

concept into the statute.

       Thompson had implicitly rejected a constitutional challenge to the second degree

murder statute, but that did not deter critics of felony murder from turning to the federal

and state constitutions as the next basis for attack. A strong dissent in Thompson had

concluded that second degree felony murder violated a defendant's right to substantive

                                              5

No. 31138·4-111
State v. Leonard


due process by eliminating the requirement that the State must prove specific intent in

order to convict a defendant of a crime that it viewed as fundamentally malum in se. Id. at

24 (Utter, J., dissenting). It also found a violation of equal protection, reasoning that the

broad discretion vested in a prosecutor to charge similar defendants with more, or less,

serious crimes (with second degree murder or with manslaughter) "creates a possibility for

unequal treatment under the law which cannot pass constitutional muster." Id. at 27. A

year after Thompson, the constitutional arguments were presented again in State v.

Wanrow, 91 Wn.2d 301,306-10,588 P.2d 1320 (1978), which addressed them explicitly.

       Wanrow rejected the constitutional arguments in the first instance as having been

rejected by the United States Supreme Court. As Wanrow explained, an appeal of right

under former 28 U.S.C. § 1257(2) (1970) had been taken from its decision in Thompson,

but was dismissed by the Supreme Court for want of a substantial federal question-a

dismissal that operated as a decision on the merits. I See Thompson, 434 U.S. 898. And



       I Before 1988, a decision by a state court upholding a state statute against federal
constitutional attack was within the United States Supreme Court's appellate jurisdiction
under former 28 U.S.C. § 1257(2). As the Supreme Court explained in Hicks v. Miranda,
422 U.S. 332, 344, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975), when presented with such an
appeal,
       [W]e had no discretion to refuse adjudication of the case on its merits as
       would have been true had the case been brought here under our certiorari
       jurisdiction. We are not obligated to grant the case plenary consideration
        ... but we were required to deal with its merits .... As Mr. Justice
       Brennan once observed, "[v]otes to affirm summarily, and to dismiss for
       want of a substantial federal question, it hardly needs comment, are votes
       on the merits of a case ...." Ohio ex reI. Eaton v. Price, 360 U.S. 246,

                                              6

No. 31138-4-III
State v. Leonard


even if the United States Supreme Court's dismissal of the appeal of Thompson were not

controlling on the constitutional questions, the Wanrow court held that it, too, would

reject the constitutional challenges, "for we find no violation of due process or equal

protection in the felony-murder rule." 91 Wn.2d at 311. On the issue of equal protection,

the court explained:

       Although the events giving rise to the prosecution of petitioner may support
       charges for varying crimes carrying varying punishments, the elements of
       those crimes are different. Proof of the elements of one does not constitute
       proof of the elements of another. Nor does it violate petitioner's right to
       equal protection that the prosecutor may choose to enforce one criminal
       statute against her and not another. The discretion vested in the prosecutor
       to selectively enforce criminal statutes is not unconstitutional if not based
       on unjustifiable standards.

Id. at 312.

       Another decade passed before Clyde Dale Leech, having been convicted of second

degree felony murder for a fire fighter's death occurring in the furtherance of Leech's

arson, asked the Washington Supreme Court to reconsider its position that the felony

murder rule was unconstitutional-specifically, he asked the court to agree that his equal

protection rights were violated when he was charged with second degree felony murder

rather than manslaughter. State v. Leech, 114 Wn.2d 700, 712, 790 P.2d 160 (1990).

This time, a unanimous court declined to reconsider Wanrow and explained, again, that



      247, 79 S. Ct. 978, 3 L. Ed. 2d 1200 (1959).
(Some alterations in original.)


                                             7
No. 31 I 38-4-Irr
State v. Leonard


there is no equal protection violation when the crimes that the prosecuting attorney has

discretion to charge require proof of different elements. Id. at 711. In State v. Crane,

116 Wn.2d 315, 333,804 P.2d 10 (1991), when the defense yet again asked the court to

abandon the felony murder doctrine whereby assault is a predicate felony for second

degree murder; the court stated, "We have consistently refused this invitation and refuse

it once more."

       It was over 20 years later, in Andress, that our Supreme Court relented and granted

a personal restraint petition that urged the court to reconsider whether assault can serve as

the predicate felony for second degree felony murder. In re Pers. Restraint ofAndress,

147 Wn.2d 602,56 P.3d 981 (2002). Having examined its prior decisions and concluded

that none had analyzed changes to the language of the murder statute when the criminal

code was substantially revised in 1975, the Andress court focused on the 1975 changes

and concluded that they suggested a modified legislative intent. At the time of the

Andress decision, the second degree murder statute provided:

              "( 1) A person is guilty of murder in the second degree when:
              "
              "(b) He commits or attempts to commit any felony other than those
      enumerated in RCW 9A.32.030(l)(c), and, in the course of and in
      furtherance of such crime or in immediate flight therefrom, he, or another
      participant, causes the death of a person other than one of the participants
           "

Id. at 608 (quoting former RCW 9A.32.050 (1976)).




                                             8

No. 31138-4-II1
State v. Leonard


       The Andress court concluded that the "in furtherance of' language made no sense

if applied where assault is the predicate felony, characterizing the "in furtherance of'

language as a "strong indication that the Legislature does not intend that assault should

serve as a predicate felony for second degree felony murder." Id. at 611. The court also

reviewed harsh results that follow from a prosecutor's discretion to charge second degree

felony murder based on assault, including that the jury will not be instructed on lesser

included or lesser degree offenses, and that the State may, depending on the

circumstances, be relieved of any burden to prove intent or any comparable mental state.

Together, the court held that the textual change to the statute and the "undue harshness"

of using assault as a predicate felony "persuades us that the Legislature did not intend

assault to serve as the predicate felony for second degree felony murder." Id at 615-16.

       The legislature responded quickly by amending the second degree murder statute

to expressly include assault as a predicate offense to felony murder. LAWS OF 2003, ch 3,

§ 2. The 2003 legislation included the following statement of intent:

       The legislature finds that the 1975 legislature clearly and unambiguously
       stated that any felony, including assault, can be a predicate offense for
       felony murder. The intent was evident: Punish, under the applicable
       murder statutes, those who commit a homicide in the course and in
       furtherance of a felony. This legislature reaffirms that original intent and
       further intends to honor and reinforce the court's decisions over the past
       twenty-eight years interpreting "in furtherance of' as requiring the death to
       be sufficiently close in time and proximity to the predicate felony. The
       legislature does not agree with or accept the court's findings of legislative
       intent in State v. Andress, Docket No. 71170-4 (October 24, 2002), and



                                             9

No.31138-4-III
State v. Leonard


       reasserts that assault has always been and still remains a predicate offense
       for felony murder in the second degree.

LAWS OF   2003, ch. 3, § 1.

       With that introduction, we tum to Mr. Leonard's challenges.

                                  A. Equal Protection

       Mr. Leonard's argument that the second degree felony murder statute violates his

equal protection rights is indistinguishable from the equal protection arguments rejected

by the Washington Supreme Court for a half century in Thompson, Wanrow, and Crane,

and by the United States Supreme Court's dismissal of the appeal of Thompson.

       Here is Mr. Leonard's statement of the argument:

       Mr. Leonard is in a class of defendants who commit second degree assault
       which results in death. Under the statutes, the prosecution was given the
       astounding choice of charging such persons with either second degree
       felony murder or the much lesser crime of manslaughter. . .. Yet there is
       absolutely no distinction between the people who would be subject to the
       far disparate punishments and higher crimes, save for the prosecutor's
       unfettered discretion. The complete lack of any standards for treating
       similarly situated defendants who commit exactly the same acts so
       differently cannot possibly serve any legitimate state objective.

Br. of Appellant at 12.

       Compare the position of the dissent in Thompson, implicitly rejected by the

Thompson majority:

              In this instance, on the basis of proof of precisely the same acts on
       the part of the defendant (i.e., the shooting of the decedent resulting in his
       unintended death), the prosecutor was free at his discretion to charge
       assault in the second degree, or manslaughter, or murder in the second

                                              10 

No. 31138-4-111
State v. Leonard


       degree. . .. Thus the prosecutor could, by proving precisely the same facts,
       subject the defendant to substantially different penalties based upon varying
       proofs, depending upon his own judgment as to the appropriate charge.
       The broad discretion which results in this instance creates a possibility for
       unequal treatment under the law which cannot pass constitutional muster.

88 Wn.2d at 27 (Utter, J., dissenting).

       As pointed out in Wanrow, the position implicitly rejected by the Washington

Supreme Court in Thompson was the same position rejected by the United States

Supreme Court as presenting no substantial federal question. The Wanrow court went on

to explain that even if it were not bound by the United States Supreme Court's rejection

of the equal protection argument, it could see no violation of equal protection either, for

"no constitutional defect exists when the crimes which the prosecutor has discretion to

charge have different elements," adding, "That is the case here." Wanrow, 91 Wn.2d at

312.

       As was the case in Wanrow, the statutes in effect at the time ofMr. Leonard's

crime required proof of different elements for second degree felony murder and

manslaughter. To prove second degree felony murder, the State was required to prove

that Mr. Leonard engaged in a felony (that he assaulted Mr. Linder with a deadly

weapon) resulting in his death, whereas manslaughter in the second degree would have

required proof that he was criminally negligent and that Mr. Linder's death resulted from

his negligent acts. Because the charges that the prosecutor had discretion to bring




                                             11 

No. 31138-4-III
State v. Leonard


required proof of different elements, there is no equal protection violation under clearly

controlling United States Supreme Court and Washington Supreme Court precedents. 2

                             B. Construction ofRCW 9A.32. 050

       Mr. Leonard also argues that despite the legislature's 2003 amendment ofRCW

9A.32.050 to explicitly identify assault as a predicate felony to second degree felony

murder, the new language "does not declare whether it applies to all assaults or only

those which are separate from the act which causes the death." Br. of Appellant at 8. He

argues that the ambiguity that concerned the Supreme Court in Andress remains, because

the amended statute retains the "in furtherance of' language. He urges us to apply the

rule oflenity and construe RCW 9A.32.050(1)(b) to allow assault to serve as the

predicate felony only where the assault is not the act that causes the death.




       2The defendants in Thompson, Wanrow, and Crane were all charged under the
1909 version of the second degree felony murder statute. As the State points out, the
Court of Appeals has continued to reject equal protection challenges raised under later
versions of the statute. See State v. Gilmer, 96 Wn. App. 875,981 P.2d 902 (1999); State
v. Goodrich, 72 Wn. App. 71, 79, 863 P.2d 599 (1993); State v. Armstrong, 143 Wn.
App. 333,178 P.3d 1048 (2008); State v. Gordon, 153 Wn. App. 516, 223 P.3d 519
(2009), rev'd on other grounds, 172 Wn.2d 671,260 P.3d 884 (2011). We do not view
the constitutional issue as turning on the language of past versions or possibly future
versions of the second degree murder statute, but as turning, instead, on the existence of
prosecutorial discretion to charge the more harshly punished crime of second degree
felony murder or to charge manslaughter, with its distinguishable elements. Thus
viewed, Mr. Leonard presents the same issue as was decided under the Washington
Supreme Court and United States Supreme Court decisions that we treat as controlling.

                                             12 

No. 31138-4-111
State v. Leonard


          Division 'One of this court rejected the argument advanced by Mr. Leonard in State

v. Gordon, 153 Wn. App. 516, 527-29, 223 P.3d 519 (2009), rev'd on other grounds, 172

Wn.2d 671, 260 P.3d 884 (2011). Mr. Leonard asks us to disregard Gordon, contending

that it (1) ignores the legislature's stated intent as to the meaning of "in furtherance of';

(2) ignores the holding in In re Personal Restraint ofBowman, 162 Wn.2d 325, 331, 172

P.3d 681 (2007) that the felony murder scheme is intended to apply "when the underlying

felony is distinct from, yet related to, the homicidal act"; and (3) fails to apply the rule of

lenity.

          As amended, the statute states in relevant part: 


          A person is guilty of murder in the second degree when: 


                 (b) He or she commits or attempts to commit any felony, including
          assault . .. and, in the course of and in furtherance of such crime or in
          immediate flight therefrom, he or she, or another participant, causes the
          death ofa person other than one of the participants.

RCW 9A.32.050 (emphasis added). "For a statute to be ambiguous, two reasonable

interpretations must arise from the language of the statute itself, not from considerations

outside the statute." Cerrillo v. Esparza, 158 Wn.2d 194,203-04, 142 P.3d 155 (2006).

We agree with Gordon that following the 2003 amendment, the language is

unambiguous; there is nothing in the statute itself that leaves us wondering if"any felony

including assault" means "any felony including those assaults that are not the act causing

death."


                                                13
No. 31138-4-II1
State v. Leonard


       Retention of the "in furtherance of' language is not enough to create an ambiguity.

Mr. Leonard fails to consider that even Andress did not rely on its concern about that

language alone to find an ambiguity-it relied on that language "[i]n conjunction" with

its conclusion that the legislature would not have intended the undue harshness resulting

from including assault as a predicate felony. Andress, 147 Wn.2d at 615. With its

explicit inclusion of assault and its statement of intent, the 2003 legislature pointedly

answered both of the Andress court's concerns.

       The language from Bowman, as a consideration outside the statute, cannot create

an ambiguity. Moreover, in Bowman the court was applying the second degree murder

statute in effect prior to 2003, as construed in Andress. We are dealing with the amended

statute. Following the 2003 amendment, it can no longer fairly be said that Washington's

felony murder statute is intended to apply only when the underlying felony is distinct

from the homicidal act.

       Because the statute is unambiguous, we do not reach the lenity issue. City of

Aberdeen v. Regan, 170 Wn.2d 103, 106,239 P.3d 1102 (2010).

                            C. Reconsideration ofthe Merger Rule

       Finally, Mr. Leonard argues that it is time for Washington to reconsider its "ill­

conceived notion" of refusing to adopt the merger rule for felony murder with an

underlying assault. Br. of Appellant at 15. The Washington Supreme Court rejected

adoption of the merger rule in Harris, and, as noted in Wanrow, "treated the matter as

                                             14 

No. 31138-4-III
State v. Leonard


settled in State v. Roberts, 88 Wn.2d 337,344 nA, 562 P.2d 1259 (1977)." 91 Wn.2d at

302-03. Decades later, Andress held that assault was not a predicate felony under the

statute as amended in 1975, but Andress was decided as a matter of statutory construction

and relied in part on the "in furtherance of' language added by the 1975 changes to the

criminal code. Our Supreme Court has never overruled its decisions refusing to adopt the

merger rule. On the issue of whether Washington applies the merger rule to felony

murder, Harris, Roberts, and Wanrow are binding on all lower courts in the state; were

we to fail to follow directly controlling Supreme Court authority, we would err. 1000

Virginia Ltd P'ship v. Vertecs Corp., 158 Wn.2d 566,578, 146 P.3d 423 (2006). We

decline the invitation to reconsider our Supreme Court's rejection of the merger rule.

      Affirmed.

      The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with the rules governing unpublished opinions. RCW

2.06.040.

                     II The to-convict instruction andfindings re LFOs

      In State v. Wilson, 176 Wn. App. 147, 151,307 P.3d 823 (2013), review denied,

179 Wn.2d 1012 (2014), the court agreed with the reasoning of State v. Brown, 130 Wn.

App. 767, 770-71, 124 P.3d 663 (2005) and State v. Meggyesy, 90 Wn. App. 693, 696,

958 P .2d 319 (1998), abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156,

110 P.3d 188 (2005), rev'd, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), that

                                            15 

No. 31138-4-111
State v. Leonard


the kind of to-convict instruction Mr. Leonard argues should have been given in his case

is equivalent to notifying the jury of its power to acquit against the evidence, and that a

defendant is not entitled to a jury nullification instruction. Our division, like both other

divisions of the Court of Appeals, has held that a criminal defendant's right to a jury trial

is not violated by the pattern to-convict instruction that was given in Mr. Leonard's case.

The court did not err in giving the instruction.

       In State v. Duncan, 180 Wn. App. 245, 253,327 P.3d 699, petition for review

flied, No. 90188-1 (April 30, 2014), we observed that whether a defendant will be

perpetually unable to pay LFOs imposed at sentencing is not an issue that defendants

overlook, it is one that they reasonably waive, and concluded that we would henceforth

decline to address a challenge to a court's findings on that issue if raised for the first time

on appeal. RAP 2.5(a). Our position is consistent with that of the other divisions of our

court. See State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178

Wn.2d 1010 (2013) and State v. Calvin, 176 Wn. App. 1,316 P.3d 496, 507-08, petition

for review flied, No. 89518-0 (Nov. 12,2013). The record in Mr. Leonard's case does

not affirmatively show an inability to pay LFOs now or in the near future, as was the case

in State v. Bertrand, 165 Wn. App. 393, 267 P.3d 511 (2011). Mr. Leonard did not

object to the findings in the trial court and thereby waived any challenge.




                                              16 

No. 31138-4-III
State v. Leonard


                        STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Leonard raises six. We

address them in turn.

       Admission ofevidence. Mr. Leonard contends the trial court erred by allowing a

knife to be admitted into evidence. The knife had been found during the execution of a

search warrant for Mr. Leonard's car. It was found in a purse in the front seat. Mr.

Leonard argues that the knife, which his sister testified belonged to her and had remained

in her purse the entire evening, was unrelated to the crime and was prejudicial. SAG at

2-3.

       The defense raised no objection when the State moved to admit and publish the

knife. A party must timely object to the introduction of evidence in order to preserve the

alleged evidentiary error for appeal. State v. Davis, 141 Wn.2d 798,849-50, 10 P.3d 977

(2000). Because no objection was made in the trial court, error, if there was any, was not

preserved.

       Prosecutorial misconduct. Mr. Leonard contends that the prosecutor committed

prosecutorial misconduct when he commented on evidence that was neither authenticated

nor tested, used inflammatory comments and arguments not supported by the evidence,

and appealed to the jury's passion and prejudice during closing. To succeed on a claim

of prosecutorial misconduct a defendant must demonstrate that the comment was both

improper and prejudicial. While Mr. Leonard sets forth a number of statements made by

                                            17 

No. 31138-4-111
State v. Leonard


the prosecutor, he does not explain, with respect to any statement, why he believes it

constituted misconduct or how it prejudiced him. His argument is insufficiently stated

for us to consider it. RAP 1O.10(c).

       Ineffective assistance. Mr. Leonard argues he was denied effective assistance of

counsel when his lawyer failed to object to the State's offer of the knife in evidence and

when his lawyer did not request instruction on excusable homicide. To succeed on a

claim of ineffective assistance, Mr. Leonard must show that counsel's performance was

both deficient and the deficient performance prejudiced him.

       Mr. Leonard fails to identify what objection his lawyer should have made to

admission of the knife and why the objection was likely to have been sustained. His

statement of the ground is again insufficient under RAP 10.10(c).

       As to Mr. Leonard's complaint that the jury was not instructed on excusable

homicide, "[h]omicide 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. Comments to the Washington pattemjury instruction on

excusable homicide point out that "[u]nlike other defenses, the 'defense' of excusable

homicide adds little if anything to the jury's analysis," and "[i]n many cases, an

instruction on excusable homicide will confuse the jury without providing any

meaningful guidance." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 15.01, at 228 (3d ed. 2008). In Mr. Leonard's case, the State

                                             18
No. 31138-4-III
State v. Leonard


bore the burden of proving an intentional act for intentional murder, an unlawful assault

for felony murder, and criminal negligence for first degree manslaughter. Mr. Leonard

fails to demonstrate why his counsel was ineffective for failing to request an instruction

that added nothing and might be misunderstood by the jury to impose a burden of proof

on the defense.

      "State did not appraise defendant on common law assault to properly defend

against." SAG at 14 (capitalization omitted). Mr. Leonard's statement of this ground is

incomprehensible. We are unable to address it.

      Insufficient evidence. Mr. Leonard contends that the State presented insufficient

evidence that he was guilty of assault in the second degree and second degree felony

murder. Mr. Leonard testified that he stabbed Mr. Linder and explained his actions as in

protection of his sister. Other evidence suggested that Mr. Leonard was the aggressor.

The evidence was clearly sufficient.

      Affirmed.



                                             ~~.~}=
                                              Siddoway, C.J.

WE CONCUR:

~)&
Brown, J.


Fe'.n~?d           1   J.
                                            19 

