                                                                          FILED
                                                                  COURT OF APPEALS DIV I
                                                                   STATE OF WASHINGTON

                                                                   2017 NOV -6 AM 9:52




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

THE STATE OF WASHINGTON,                         No. 74778-9-1

                        Respondent,

                V.                               UNPUBLISHED OPINION

JASON EDWARD RICHARDSON,

                        Appellant.               FILED: November 6, 2017

      SCHINDLER, J. — A jury convicted Jason Edward Richardson of assault in the first

degree with a firearm, assault in the second degree with a firearm, and drive-by

shooting. Richardson seeks reversal. Richardson argues the prosecutor committed

misconduct by eliciting testimony that a witness agreed to testify truthfully. In the

alternative, Richardson claims his attorney provided ineffective assistance of counsel by

failing to object. Because the record does not support the argument that the prosecutor

committed misconduct and Richardson cannot establish ineffective assistance of

counsel, we affirm.

                                          FACTS

       In May 2015, DaNielle Nasi and her two children were staying with her boyfriend

Charles Engerseth at his house in Granite Falls. Engerseth had a security system

mounted above the garage. The surveillance camera displayed images from the
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driveway to a monitor in a bedroom.

      At around 5:30 a.m. on May 5, Nasi watched on the security monitor as a dark-

colored Ford Fusion came down the driveway. Nasi and Engerseth went to the window.

Two men got out of the Ford Fusion wearing "old man, scary, Halloween masks." The

passenger, later identified as Kenny Dempewolf, stood by the Ford Fusion, holding a

lighter and a rag. The driver, later identified as Nasi's ex-boyfriend Jason Edward

Richardson, poured gasoline on two vehicles parked outside the house. Nasi

recognized the masks as belonging to Richardson.

       Richardson screamed toward the house, "DaNielle, why don't you call the cops

on this, too?" Nasi and Engerseth both recognized Richardson's voice and his

distinctive gait. Engerseth ran outside. Richardson aimed his gun at Engerseth and

fired. A bullet went through the front wall of the house, near the living room where

Nasi's children were sleeping. Nasi moved the children from the living room to

underneath the bed in the bedroom. Richardson continued to fire the gun at the house

and at the cars.

       As Richardson and Dempewolf drove away, Engerseth threw rocks at the car.

Richardson fired his gun through the windshield of the Ford Fusion, shooting Engerseth

in the knee. Engerseth saved two bullet fragments and a bullet casing. Nasi and

Engerseth did not report what happened to the police.

       Richardson and Dempewolf drove to Arlington. Richardson told Dempewolf to

"get rid of" the car. Dempewolf left the car with the car door open. Dempewolfs friend

Jonathon Abrahamson drove him home.

       At around 7:00 a.m., Snohomish County Deputy Sherriff Steven Dosch and



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Deputy Daniel Eakin responded to a report of"two people, prowlers" that "were

associated with a car that they had abandon[ed]." The deputies found a Ford Fusion

with the door still open and the windshield "busted out." The car smelled like gasoline.

Deputy Dosch found a bullet casing on the floor of the car. After receiving information

from a neighbor, Deputy Dosch located Richardson at a nearby apartment. The

deputies questioned Richardson about the car and then released him.

         After Child Protective Services(CPS)learned about the shooting, on May 14,

CPS contacted the police about the shooting. CPS removed the children from Nasi's

care. CPS told Nasi she had to cooperate with the police investigation and establish the

children would be safe with her.

         In July, Nasi and Engerseth met with Arlington Police Detective Rory Bolter.

Nasi and Engerseth gave written and recorded statements about the shooting. Nasi

turned over the security camera video from the shooting on May 5. The video showed

two males in a Ford Fusion. Nasi and Engerseth identified Richardson as the shooter in

the video. Nasi told Detective Bolter she believed Dempewolf was the other man in the

video.

         Detective Bolter accompanied Engerseth to the Cascade Valley Hospital. A

doctor examined the bullet wound and took an x-ray of Engerseth's knee. The doctor

did not find any bullet fragments in Engerseth's knee. After returning to Engerseth's

house, Engerseth gave Detective Bolter and Sergeant Marcus Dill the bullet fragments

and the bullet casing he found on May 5.

         In August, Sergeant Dill interviewed Dempewolf. The interview was videotaped

and Dempewolf gave a written statement. Although Dempewolf tried to "protect"



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Richardson, Dempewolf admitted that on May 5, he and Richardson were at

Engerseth's house and Richardson was "the person that was shooting."

          The State charged Richardson with two counts of assault in the first degree while

armed with a firearm and one count of drive-by shooting. Richardson pleaded not

guilty.

          During a defense interview, Dempewolf denied that the statement he made to

Sergeant Dill was true. Dempewolf told the defense attorney, "I wasn't there. .. . I had

never been to [Engerseth's house]."

          The State subpoenaed Dempewolf to testify at trial. At a pretrial hearing, the

prosecutor noted the possibility of treating Dempewolf as a hostile witness because

"[w]e don't quite know what he's going to say." The prosecutor told the court, "[W]e're

not really sure what's going to happen" because Dempewolf had given conflicting

versions to the police and the defense. When Dempewolf did not appear to testify on

the first day of trial, the court issued a material witness warrant.

          The State called several witnesses to testify, including Nasi, Engerseth, Deputy

Eakin, Deputy Dosch, and Washington State Patrol Crime Laboratory(WSPCL)forensic

scientist Brian Smelser. The court admitted more than 30 exhibits into evidence,

including the security camera video.

          Nasi testified she dated Richardson for three weeks but the relationship ended

"poorly." Nasi said she and the children sometimes stayed in a trailer on Engerseth's

property.

          Nasi said that on the morning of May 5, she saw a man get out of the driver's

side of the car wearing an "old man, scary, Halloween" mask. Nasi testified that she



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No. 74778-9-1/5

saw the "exact" mask "[alt [Richardson]'s house." Nasi knew the shooter was

Richardson after he screamed,"DaNielle, why don't you call the cops on this, too?"

Nasi said no one else pronounced her name "the way [Richardson] did." Nasi also

testified Richardson has a "distinct walk. . . when he's upset."

       Engerseth testified he had met Richardson and recognized his voice when he

yelled, "DaNielle, call the cops on this." Engerseth said the shooter fired through the

windshield and hit him "right above the knee."

       Deputy Eakin testified the Ford Fusion he and Deputy Dosch found abandoned in

Arlington had damage to the windshield "consistent with a bullet hole." Deputy Dosch

identified the bullet casing he found on the floor of the car. WSPCL forensic scientist

Smelser testified the bullet casing found in the Ford Fusion and the bullet casing

Engerseth gave to the police were fired from the same gun.

       The State played the security camera video for the jury. The video shows a dark-

colored car driving up the driveway. Two men get out of the car wearing masks. The

driver pours gasoline on two nearby cars. The driver walks toward the house waving

his arms, pulls out a gun, and fires at the house. The two men get back in the car and

begin to drive away. The video shows Engerseth throwing objects at the car and a

bullet fired through the windshield at Engerseth. Engerseth then doubles over and

limps away.

       Dempewolf testified on the third day of trial. Dempewolf testified that he met with

Nasi at a pizza parlor in Everett the day before. Dempewolf said Nasi showed him the

security camera video and told him her children were in the house during the shooting.

Dempewolf testified he did not know the children were in the house,"Otherwise I would



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have never been there."

       Dempewolf said he knew Richardson "[p]retty much all my life." Dempewolf said

he was at Richardson's house on May 5 and was "helping him clean his garage."

Dempewolf agreed to drive to Granite Falls "to pick up [Richardson's] car and .. . I

would help him ... drive it back." Dempewolf testified there were two "funny-looking

masks" and a container of gas in the car. Dempewolf said when they reached the

house, Richardson "got out first." Richardson grabbed the gas container and poured

gas on the cars. Richardson "told everybody to come out." "[A]fter the man came out of

the house," Richardson fired his gun toward the house. Dempewolf said Richardson

also fired his gun "from inside of the car."

       Dempewolf testified the State agreed not to charge him with a crime if he testified

truthfully. The defense did not object.

       On cross-examination, Dempewolf admitted giving different statements about the

shooting. In his first statement to Sergeant Dill, Dempewolf identified Richardson as the

shooter. But Dempewolf testified he told Sergeant Dill that "maybe there was an airsoft

gun" because he was "trying to cover for [Richardson]." Dempewolf admitted that in an

interview with defense counsel, he denied being at Engerseth's house and said that

"everything I told [Sergeant Dill] was untrue." Dempewolf testified on cross-examination

that he would not get immunity if he testified to "something that [the prosecutor] doesn't

think is the truth."

       The defense called Nasi to testify. Nasi testified that after she learned

Dempewolf was not going to testify, she met with him at a pizza parlor and showed him

the security camera video. Nasi testified that she asked Dempewolf why Richardson



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walked toward the trailer on Engerseth's property when he first got out of the car. Nasi

said she told Dempewolf that her children were in the house during the shooting and her

"kids deserved to have him testify." Nasi said she asked Dempewolf to testify "because

it's the right thing to do, because I'm afraid that other things would happen to other

people."

       In closing, the State did not refer to Dempewolfs agreement to testify. The

defense argued Dempewolf was not credible and only identified Richardson as the

shooter to get immunity from charges.

      [T]he only way[Dempewolf] gets immunity is if he says what[the
      prosecutor] believes the truth to be. He testified to that. And that was in
      his agreement. ...
             If he were to... say what he said to [defense counsel], he would
      not get immunity and would be charged.

       The jury found Richardson not guilty of one count of assault in the first degree

while armed with a firearm. The jury found Richardson guilty of the other count of

assault in the first degree while armed with a firearm, the lesser included crime of

assault in the second degree while armed with a firearm, and drive-by shooting.

                                        ANALYSIS

Prosecutorial Misconduct

       Richardson argues the prosecutor improperly vouched for the credibility of a

witness because Dempewolf testified that the immunity agreement required him to tell

the truth.

       To prevail on a claim of prosecutorial misconduct, the defendant must show the

prosecutor's conduct was improper and prejudicial. State v. Ish, 170 Wn.2d 189, 195,

241 P.3d 389 (2010). We review alleged prosecutorial misconduct "in the context of the



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No. 74778-9-1/8

total argument, the issues in the case, the evidence addressed in the argument, and the

instructions given to the jury." State v. Allen, 161 Wn. App. 727, 746,255 P.3d 784

(2011).

       If the defendant does not object or request a curative instruction at trial, the

defendant waives the misconduct issue "unless the prosecutor's misconduct was so

flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice." State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653(2012). Under this

heightened standard, the defendant must show "(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.'" Emery, 174 Wn.2d at

761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43(2011)). We focus

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

whether the resulting prejudice could have been cured." Emery, 174 Wn.2d at 762.

       It is improper for the prosecutor to vouch for the credibility of a witness. Allen,

161 Wn. App. at 746. Improper vouching occurs "if the prosecutor expresses his or her

personal belief as to the veracity of the witness." lsh, 170 Wn.2d at 196.

       But where the State reasonably anticipates the defense will attack the credibility

of a witness, the prosecutor may ask a witness about an agreement to testify on direct

examination. State v. Bourgeois, 133 Wn.2d 389, 402, 945 P.2d 1120 (1997); see also

Ish, 170 Wn.2d at 199 n.10(a party may preemptively rehabilitate a witness during its

case-in-chief where there is "little doubt" of an anticipated attacked). However, the

State may not ask a witness about his "promise to testify truthfully during direct

examination." lsh 170 Wn.2d at 199.



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No. 74778-9-1/9

       Here, it is undisputed the State reasonably anticipated the defense would attack

the credibility of Dempewolf. Richardson concedes the State could ask Dempewolf on

direct examination about the agreement to testify. And, unlike in lsh, the record shows

the prosecutor did not ask Dempewolf whether he promised to testify truthfully.

      On direct examination, the prosecutor asked Dempewolf,"And what did that

agreement order you to do?" Dempewolf responded,"You told me to tell the truth." The

defense did not object. The prosecutor immediately rephrased the question to clarify

Dempewolf agreed to testify in exchange for immunity.

      Q.     You are receiving something in exchange, are you not?
      A.     What do you mean?
      Q.     ... Isn't it true that my office has agreed not to prosecute you for
             being there at the time?
      A.     Yes.
      Q.     In exchange that you have to testify today?
      A.     Yes.

       Dempewolf's unsolicited testimony that "[y]ou told me to tell the truth" was

not flagrant and ill-intentioned prosecutorial misconduct. See State v. Hughes,

118 Wn. App. 713, 725-26, 77 P.3d 681 (improper response on truthfulness not

flagrant and ill-intentioned misconduct because the prosecutor's question was

open-ended and the answer was unsolicited). The record shows the prosecutor

asked an open-ended question, Dempewolf gave an improper response, and the

prosecutor immediately rephrased the question. If the defense had objected, a

curative instruction could have "obviated any prejudicial effect." Emery, 174

Wn.2d at 761.

       Richardson also fails to show a substantial likelihood that the unsolicited

response affected the jury verdict. lsh, 170 Wn.2d at 200-01. Richardson argues



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Dempewolf's testimony was necessary to identify Richardson as the shooter. Contrary

to his argument, the record shows the State presented other evidence identifying

Richardson as the shooter. The State played the security camera for the jury. Nasi and

Engerseth knew Richardson by his voice and gait. Nasi saw the "exact masks"

Richardson and Dempewolf were wearing at Richardson's house. Nasi recognized

Richardson's voice because of the distinct way he mispronounced her name. Although

Richardson argues Nasi and Engerseth had motive to lie, credibility determinations are

for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850(1990).

Ineffective Assistance of Counsel

        In the alternative, Richardson claims his attorney provided ineffective assistance

of counsel by failing to object to Dempewolf's testimony that the prosecutor told him to

tell the truth.

        The Sixth Amendment to the United States Constitution and article I, section 22

of the Washington Constitution guarantee the right to effective assistance of counsel.

Strickland v. Washington,466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260(2011). We review claims of

ineffective assistance of counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204

P.3d 916 (2009).

        To prevail on a claim of ineffective assistance of counsel, the defendant must

show both (1)that defense counsel's representation was deficient and (2)that the

deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. If a

defendant fails to establish either prong, we need not inquire further. Strickland, 466

U.S. at 697; State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996). "Deficient



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performance is performance falling 'below an objective standard of reasonableness

based on consideration of all the circumstances.'" State v. KvIlo, 166 Wn.2d 856, 862,

215 P.3d 177(2009)(quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d

1251 (1995)).

       There is a strong presumption of effective representation of counsel and that

counsel's conduct falls within the wide range of reasonable professional assistance.

Strickland, 466 U.S. at 689. The defendant has the burden to show that based on the

record, there are no legitimate strategic or tactical reasons for the challenged conduct.

McFarland, 127 Wn.2d at 335-36.

       The record shows defense counsel made a strategic decision not to object and to

use the testimony that Dempewolf agreed to testify truthfully to impeach his credibility.

During extensive cross-examination, defense counsel focused on the inconsistencies in

the five different statements Dempewolf gave to the police and the defense. Dempewolf

said he agreed to testify "in the State's case against Mr. Richardson" because the State

would "not charge [him] with any crime." Dempewolf testified that he would get

immunity only if he "testiffied] to what, in [the prosecutor]'s judgment, is the truth," and

the prosecutor "gets to decide what the truth is." Because the record shows the

decision not to object was strategic, Richardson cannot establish ineffective assistance

of counsel.

Statements of Additional Grounds

       Richardson raises several additional grounds for review under RAP 10.10(a).

       Richardson claims the police and prosecutor engaged in misconduct and the trial

court violated his right to a speedy trial by granting continuances. Because his



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arguments rely on "matters outside the record," we cannot review these arguments on

direct appeal. McFarland, 127 Wn.2d at 337-38; RAP 10.10(c).

       Richardson also claims the court erred by giving an improper jury instruction on

recklessness. We disagree. The cases Richardson cites are inapposite. Under RCW

9A.36.045, the mental state for drive-by shooting is recklessness. The court correctly

used 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.03, at

225 (4th ed. 2016), to instruct the jury on the definition of "recklessness," consistent with

RCW 9A.08.010(1)(c) and (2).

       Richardson asserts his attorney provided ineffective assistance of counsel by

failing to call an expert medical witness to testify on whether Engerseth suffered a gun

shot wound. Because the decision not to call an expert witness falls within trial strategy,

Richardson cannot establish ineffective assistance of counsel. See State v. Mannering,

150 Wn.2d 277, 287, 75 P.3d 961 (2003).

       We affirm.




WE CONCUR:




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