          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                          )        No. 76011-4-1                t=0
                                              )                                               :70
                       Respondent,            )
                                                      DIVISION ONE                  r-              rt
                                              )
                       v.                     )                                               -0
                                                                                              -73
                                              )
TYREE WILLIAM JEFFERSON,                      )                                               r-
                                                                                     UD    r; Cl)
                                              )       PUBLISHED OPINION                    -4
                                                                                           CD-
                      Appellant.              )                                      N.)
                                              )       FILED: July 17, 2017

       MANN, J. —Tyree Jefferson appeals his conviction for attempted first degree

murder, first degree assault, and unlawful possession of a firearm. Jefferson raises ten

issues on appeal, including:(1)the trial court erred in denying his Batson' challenge

after the State used a peremptory challenge to strike the only African American

venireperson,(2)the trial court violated the appearance of fairness doctrine,(3)the trial

court erred in denying a mistrial for jury misconduct,(4)the trial court erred in admitting

gang evidence,(5)the trial court erred in excluding evidence and testimony from one of

Jefferson's witnesses,(6) prosecutorial misconduct,(7)that insufficient evidence

supported the convictions,(8) the "to convict" instruction was inadequate,(9) ineffective

counsel, and (10) cumulative error. Finding no error, we affirm.



       1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986).
No. 76011-4-1/2


                                         FACTS

      On February 14, 2013, Harmony Wortham and Lashonda Goodman went to

Latitude 84, a Tacoma nightclub. At Latitude 84, Wortham and Goodman met an

acquaintance Dimitri Powell and Powell's younger relative, Tyree Jefferson.

      Over the course of the evening, a dispute arose between Goodman and

Rosendo Robinson, another bar patron, over Goodman's sunglasses. Eventually,

Goodman and Wortham were kicked out of Latitude 84, and the police arrived. The

police interviewed Goodman and Wortham, but did not resolve the dispute over

Goodman's sunglasses.

      After the police left, Goodman and one of Robinson's female friends, Jessica

Hunter, agreed to settle the dispute with a fight. Goodman, Wortham, and Robinson

met at the Union 76 gas station across the street from Latitude 84 to fight. Powell and

Jefferson also arrived at the gas station. The Union 76 surveillance cameras captured

many of the events. The cameras showed Goodman and Wortham confronting and

punching Robinson through his car's driver's side window. Robinson stepped out of his

car to confront Goodman. And as he did so, Powell and Jefferson got out of a black

Nissan Altima and approached. While Powell got into a physical altercation with

Robinson, Jefferson walked back to the black car, opened the trunk, pulled out an

object, and then ran toward Robinson with his arm outstretched holding a dark item.

Surveillance camera 10 showed Jefferson chasing Robinson and Robinson fleeing from

Jefferson into the street. After Robinson fled, Jefferson ran back to Powell's car.

Moments later, the cars at the Union 76 station sped off.



                                         -2-
No. 76011-4-1/3


       Robinson was struck by bullets at the gas station and as he fled on foot across

the street. He sustained five gunshot wounds to the torso. Robinson initially identified

Powell as the shooter, but after watching the videos, he changed his mind and believed

that Jefferson shot him. Wortham, Goodman, and Hunter identified Jefferson as the

shooter.

       On July 12, 2013, Jefferson was charged with one count of first degree assault

by alternative means and one count of unlawful first degree possession of a firearm.

The charges were subsequently amended to add one count of attempted first degree

murder.

       The trial began with jury selection on May 4, 2014. Jury deliberations began on

May 20, 2015. The jury convicted Jefferson of(1) attempted first degree murder,(2)

first degree assault, and (3) unlawful possession of a firearm in the first degree.

Jefferson was sentenced to a low-end standard range sentence of 277.5 months in

prison plus 60 months additional for the firearm sentence enhancement.

       Jefferson appeals his conviction.

                                        ANALYSIS

                                                 1

       Jefferson argues first that the trial court erred in denying his Batson challenge

after the State used a peremptory challenge to strike the only African American

venireperson in his jury pool. Jefferson claims the peremptory strike was clearly racially

motivated in violation of the equal protection guaranty described in Batson v. Kentucky,

476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986). We disagree.



                                           -3-
No. 76011-4-1/4


        We review a Batson challenge for clear error, deferring to the trial court to the

extent its rulings are factual. State v. Saintcalle, 178 Wn.2d 34, 41, 309 P.3d 326

(2013). "Clear error exists when the court is left with a definite and firm conviction that a

mistake has been committed." Saintcalle, 178 Wn.2d at 41. "Deference to trial court

findings is critically important in Batson cases because the trial court is much better

positioned than an appellate court to examine the circumstances surrounding the

challenge." Saintcalle, 178 Wn.2d at 56.

       The equal protection clause of the Fourteenth Amendment prohibits racial

discrimination during the jury selection process. "Those on the venire must be

'indifferently chosen,' to secure the defendant's right under the Fourteenth Amendment

to 'protection of life and liberty against race or color prejudice." Batson, 476 U.S. at 86-

87(quoting Strauder v. West Virginia, 100 U.S. 303, 309, 25 L. Ed 664 (1879)).

       Batson established a three-step analysis to determine whether a prosecutor's

peremptory strike unconstitutionally discriminates on the basis of race. First, the

person challenging the peremptory must "make out a prima facie case of purposeful

discrimination by showing that the totality of the relevant facts gives rise to an inference

of discriminatory purpose." Batson, 476 U.S. at 93-94. Second, the "burden shifts to

the State to come forward with a [race-]neutral explanation' for the challenge."

Saintcalle, 178 Wn.2d at 42(quoting Batson, 476 U.S. at 97)(alterations in original).

Finally, "the trial court then [has] the duty to determine if the defendant has established

purposeful discrimination." Saintcalle, 178 Wn.2d at 42(quoting Batson, 476 U.S. at

98). Under this "purposeful discrimination" part of the Batson analysis, courts must



                                           -4-
No. 76011-4-1/5


examine whether the race-neutral explanation could apply just as well to a nonminority

juror who was allowed to serve. Saintcalle, 178 Wn.2d at 43.

       During voir dire, the State exercised a peremptorily challenge against juror 10—

the last African American person from the venire. Jefferson, an African American,

challenged this strike with a Batson motion. The trial court, walking through the three-

step Batson analysis, concluded first that Jefferson had established a prima facie

showing of racial discrimination. The trial court then shifted the burden to the State by

asking the State to explain the reason why it struck juror 10. The State explained that

three of juror 10's responses were concerning. First, juror 10 stated that he thought the

voir dire questioning was a "waste of time." Second,juror 10 admitted that he

previously brought extraneous evidence into the deliberations while serving as a juror in

a criminal trial. And third, juror 10 enthusiastically described, in detail, the movie 12

Angry Men.

       The trial court considered the State's explanation and concluded that the State

had met its burden of producing a nondiscriminatory explanation for its challenge. The

court then turned to the third step of the Batson analysis and concluded that that

Jefferson had not established purposeful discrimination. Giving due deference to the

trial court, its decision was not clearly erroneous.

       At least two of juror 10's responses support the trial court's decision to deny

Jefferson's Batson challenge. First, juror 10 stated voir dire was a "waste of time."

Striking a juror who indicates that the voir dire and pretrial proceedings are a "waste of

time" is a reasonable, race-neutral reason to strike a juror. Second,juror 10 admitted



                                          -5-
No. 76011-4-1/6


that while serving as a juror in a criminal trial he brought extraneous evidence into the

deliberations. This is also a reasonable race-neutral reason to strike a juror.

       Jefferson argues that the State's reasons for striking juror 10 were pretexts for a

race based strike. First, he claims that juror 1 also believed that voir dire was a waste

of time. To support his claim, Jefferson cites to his defense counsel's argument, not

juror l's alleged statement. Juror 1 never said that voir dire was a waste of time.

Second, Jefferson claims that although other jurors discussed 12 Angry Men, the State

only struck juror 10. This claim also fails, however, because juror 9 was also

enthusiastic about the move and was challenged. Jefferson cannot establish that the

trial court's decision to deny his Batson motion was clear error.

       While we find no error, we are concerned with what appears to be the State's

primary argument on appeal. The State repeatedly, in both its briefing before this court,

and during oral argument, argued that we should affirm the trial court's denial of

Jefferson's Batson motion because of "the circumstances evident to the trial court."

Specifically, that "(1) the case was being tried before an African American judge,(2) the

prosecutor was African American. . . ,(3)the defendant was African American, and (4)

the defense attorney was a Caucasian woman." The State argues:

      [1]n essence, the defense attorney's objection amounted to this: the
      African American prosecutor chose this particular case to attempt to
      engage in purposeful race discrimination against an African American
      venire member. Even more implausibly he did so allegedly against a
      venire member who shared both his and the judge's racial background.[21




       2   Br. of Resp't. at 14.


                                          -6-
No. 76011-4-1/7


       In essence, the State invites us to accept the proposition that where the

prosecutor is an African American or other minority, we should presume that there was

no purposeful discrimination in the peremptory challenge. The State's argument lacks

merit, is inappropriate, and has no bearing on a Batson analysis. Neither the race or

gender of the judge hearing the case, nor the race or gender of the lawyers trying the

case, are relevant inquiries under Batson. Once a prima facie showing of discrimination

is made, the State must provide a race-neutral explanation for the peremptory challenge

and the trial court must then conduct a comparative'mg analysis to determine if there

was purposeful discrimination. Saintcalle, 178 Wn.2d at 42-43. The court's focus is on

the jurors, not the race or gender of the judge or lawyers.

                                            11

       Jefferson next contends that a series of actions, statements, and rulings made by

the trial court demonstrate a violation of the appearance of fairness doctrine. After

reviewing the record, we disagree.

      "Under the appearance of fairness doctrine, a judicial proceeding is valid only if a

reasonably prudent, disinterested observer would conclude that the parties received a

fair, impartial, and neutral hearing." State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d

973(2010). "'The law goes farther than requiring an impartial judge; it also requires that

the judge appear to be impartial." Gamble, 168 Wn.2d at 186 (quoting State v. Madrv,

8 Wn. App. 61, 70, 504 P.2d 1156 (1972)). "Evidence of a judge's actual or potential

bias must be shown before an appearance of fairness claim will succeed." State v.

Chamberlin, 161 Wn.2d 30, 37, 162 P.3d 389 (2007). Under the Code of Judicial

Conduct(CJC), designed to provide guidance for judges, "[Budges should disqualify

                                         -7-
No. 76011-4-1/8


themselves in a proceeding in which their impartiality might reasonably be questioned."

CJC Canon 3(D)(1); Gamble, 168 Wn.2d at 188.

       Jefferson raises several examples of the trial court's bias against him. We

address each in turn.

A.     Jury Appreciation Day

       First, at the end of the first day of trial, the court informed the jurors that the

county council was making a proclamation for Juror Appreciation Month and "you are

certainly welcome to join me on the 10th floor, in council chambers, at 3:15 if you'd like

to do that. It might be nice for them to see some real folks, but I'll leave that to your

discretion." Jefferson did not object. When the jury appeared the next morning, the

court stated that "after court, I ran into one of your colleagues on the tenth floor, and the

person got to meet the county council and—for our Juror Appreciation day, and it was

really interesting. I don't think some of the council, some of the members, had seen a

real juror before. It's like he became a celebrity."

       Jefferson argues that the court's comments demonstrate bias. We disagree. A

reasonably prudent, disinterested observer would not conclude that the court was

biased or appeared biased by extending an invitation for the jurors to attend a juror

appreciation event.

B.     Admonition of Defense Counsel

       Second, Jefferson cites two instances where the trial court admonished defense

counsel's conduct. The first instance concerned the State's witness, Wortham.

Wortham had been flown up from California under subpoena. Wortham's testimony,

which turned out to be hostile to the State, was started late on a Thursday, but was not

                                            -8-
No. 76011-4-1/9


completed before the end of the trial day. The State asked the court to instruct the

witness to return Monday morning. Defense counsel interrupted and inserted that

Wortham had not legally been subpoenaed. This apparently surprised Wortham. The

court instructed Wortham to return on Monday and not to talk to anyone about the case

or her testimony.

       On Monday morning, the State requested a bench warrant after learning that

Wortham had changed her flight and was on her way to the airport. The court issued

the bench warrant and then asked both trial counsel if they had been in contact with

Wortham over the weekend. Defense counsel stated that Wortham called her to ask

about the subpoena. Counsel stated that she informed Wortham that she could not give

legal advice and that Wortham should talk to a lawyer. Counsel did, however, provide

Wortham with a citation to RCW 10.55.060, the statute controlling out of state

subpoenas. The trial court expressed its concern:

       I'm going to tell you, I'm concerned about that the statue even came up...
       Nobody has brought anything to my attention that is improper about the
       way she was summosed . . . But at this point, I have to tell you candidly, I
       don't think it excuses any discussion about 10.55.060 and anything that
       suggests to her that she maybe didn't have to show today, or there was
       some technicality for her to get out of it following this court's order, is a
       serious problem, in my view, and I'm going to research it further.P1

The jury was not present during this discussion. It does not appear the trial court

took further action.

       In the second instance, prior to the testimony of Jefferson's forensics expert, the

State objected that it had no information about what the expert was going to testify to as

       3 Report of Proceedings(RP)(May   11, 2015) at 534.



                                             -9-
No. 76011-4-1/10


it had not received an expert report. The trial court asked if the witness was going to

mirror the cross-examination of the State's forensic expert. Defense counsel then

stated that the expert "didn't examine evidence. That's why there is no expert report."

During the expert's testimony, it was disclosed that he had examined photographs of

the victim's clothing before trial and was prepared to testify to his opinions. The trial

court dismissed the jury and again admonished defense counsel:

               Ms. Corey, I'm going to raise an issue. And, you know, I got to tell
       you candidly, at this point, I feel like the Rules of Professional Conduct
       mean nothing. I'm really concerned about the lack of candor to the
       Tribunal. I'm concerned about fairness to opposing Counsel. I know this
       has been contentious. Okay? But I got to tell you, candidly, you led me to
       believe that Mr. Sweeney's coming here to talk about one thing. Mr.
       Sweeney has had these photos. I asked you about a report from Mr.
       Sweeney. Mr. Sweeney did not write a report because he hasn't reviewed
       any evidence — and I'm paraphrasing. Okay?
               Mr. Sweeney reviewed evidence in April. Mr. Sweeney could have
       written a report, and now you're asking him to testify about the photos that
       he looked at back in April, and there has been nothing. There has been
       nothing.
              [The prosecutor] has been complaining all day about sandbagging.
       I say, no, this isn't sandbagging. I'm letting him talk about a very limited
       subject matter. And, no, he didn't write a report because I asked for-1
       ordered you to provide a report to him. There was no report because he
       didn't look at anything. Because he didn't consider the evidence. Okay?
               I don't want to hear it, okay? But you can explain it to the WSBA
       when we're done.141

       Again, Jefferson cannot demonstrate evidence of the court's actual or potential

bias. A reasonably prudent, disinterested observer would not conclude that the trial

court's action admonishing defense counsel for unprofessional behavior showed actual

or apparent bias. The admonitions occurred twice over a three-week trial. Both

instances were outside the presence of the jury. And in both instances, the record


       4   RP (May 18, 2015) at 1116-17.

                                           -10-
No. 76011-4-1/11


reflects defense counsel's conduct was unprofessional. The court's admonition of

defense counsel was appropriate and does not demonstrate bias.

C.     Sua Sponte Objections

       Third, Jefferson contends that the trial court made several sua sponte objections

during the trial that demonstrate bias against Jefferson or his counsel. In addition to the

admonition of counsel discussed above, Jefferson cites to three incidents over the

course of the trial. First, during cross-examination of one of the investigating officers,

Jefferson asked whether the officer had visited the victim in the hospital. When he

replied "no" Jefferson asked if this was because Robinson was uncooperative. The

court interjected and, after a sidebar where the court explained that he was concerned

the question would confuse the jury because there was no evidence on direct

examination that Robinson had been cooperative, the question was withdrawn. Later,

during direct examination of Jefferson's forensic expert, the trial court interjected after

Jefferson asked the expert to draw a hypothetical sketch of a bullet with landings and

grooves, and a shell casing with hit fire pin indentation. During sidebars, the court

explained that both drawings would confuse the jury because the expert had not

reviewed any of the recovered bullets or casings. After hearing from counsel, the court

allowed the expert to draw the sketch of a bullet but not the casing.

       The trial court is generally in the best position to perceive and structure its

proceedings. Accordingly, the trial court has broad discretion to make trial management

decisions, ranging from "the mode and order of interrogating witnesses and presenting

evidence," to the admissibility of evidence, to provisions for the order and security of the

courtroom. State v. Dye, 178 Wn.2d 541-47, 48, 309 P.3d 1192(2013). In each

                                           -11-
No. 76011-4-1/12


instance cited by Jefferson, the trial court interjected and called a sidebar. Then later,

with the jury out, the court summarized the sidebar, explained its ruling, and allowed

counsel to supplement the record. A reasonably prudent, disinterested observer would

not conclude that the trial court's action attempting to avoid confusing the jury showed

actual or apparent bias.

D.     Courtroom Hostility

       Fourth, Jefferson contends that the trial court's admonition of members of the

gallery, including Jefferson's father, during the trial demonstrate bias. Jefferson cites

several events. For example, after the court concluded its ruling on the Batson

challenge, the prosecutor asked the court to "admonish individuals in the courtroom not

to make comments directed at the prosecutor, in a way to question or harass the

prosecutor." The court warned the gallery that it would hold people in contempt if

Jefferson's case was threatened. During the admonition, Jefferson and the trial court

exchanged heated remarks. One morning during the second week of trial, prior to the

jury entering the courtroom, the prosecutor asked the trial court to admonish Jefferson's

father for calling him names. The court asked the sheriff deputy and defense counsel

about what had happened. After hearing the exchange, the trial court gave Jefferson's

father a second warning. When Jefferson's father continued to argue with the court, the

court held him in contempt and had him removed from the courtroom.

       That same day, after the mid-day recess and before the jury was brought in, the

trial court addressed the parties and the gallery:

              The other thing I want to mention, and with some degree of
       trepidation, when I am not out here—you know, we had a discussion this
       morning, and it got into who said what, and people were saying things.

                                          -12-
No. 76011-4-1/13


      And I just want to remind everyone that civility and professionalism is of
      paramount importance in this trial, and anything short of that, I just have to
      be candid, is unacceptable. And, candidly, I'm concerned that whatever is
      going on, if anything, between counsel, is spilling out onto people in the
      gallery, and I don't want that to happen. So that's what I want to say.
              The other thing is, I don't know if there's been one person here—I
      don't know if it's Mr. Jefferson's mother, or what, or relative who has been
      here, I think at all the hearings, and I think she knows how important it is
      that everybody be civil, that we try to do everything we can to make sure
      that this is a fair trial and that nobody does anything to interfere with Mr.
      Jefferson's right to a fair trial. And to the extent that she's—some of the
      folks in the gallery—been the one with the level head, I appreciate that.
      And so this is really important to me, and I just wanted to be clear about
      it.[5]

      There is certainly evidence in the record that the atmosphere in the courtroom

was heated at times. Outbursts from disgruntled members of the gallery and Jefferson

punctuated the proceedings. But far from showing bias, after reviewing the record, it is

clear that the trial court's demeanor and restrained, understated approach over the

course of the three-week trial was exemplary. A reasonably prudent, disinterested

observer would not conclude that the trial court's action managing the trial and

courtroom showed actual or apparent bias.

      In sum, Jefferson's arguments that the court was biased against him fail. A

disinterested observer viewing the entire record would conclude that Jefferson's trial

was fair and conducted without apparent or actual bias.

                                            III

      Jefferson next contends that the trial court abused its discretion by removing and

replacing a juror that had witnessed extrinsic evidence rather than declaring a mistrial.

We disagree.


      5 RP(May   12, 2015)at 736-37.
                                         -13-
No. 76011-4-1/14


A.     Juror Observations and Voir Dire

       During the lunch break after the State's closing argument, juror 8 approached the

trial court with a question. The court referred the juror to his judicial assistant. After the

lunch recess, the trial court moved, sua sponte, to close the courtroom. The court

explained that he believed there were compelling reasons under Bone-Club6 to close

the court for a limited time. The court explained that his concern was "based on

concern about Mr. Jefferson's right to a fair trial, and I'm concerned that if we aren't able

to flesh this out candidly, there is a serious and imminent threat to [Jefferson's] right to a

fair trial." There were no objections from the parties or members of the gallery.

       With the courtroom closed, the court heard first from the judicial assistant, juror 8,

and juror 9. The judicial assistant recounted that juror 8 told him that "she felt

threatened, scared, intimidated, something to that effect, yesterday afternoon when

court had recessed." The court and parties then questioned juror 8. Juror 8 explained

that as she and juror 9 walked to their cars at the end of the day, she observed one of

the men from the gallery observing jurors as they were getting in their cars. No contact,

words, or gestures were exchanged between the jurors and the gallery members, but

juror 8 found it "a little nerve wracking." Juror 8 believed she could continue and

evaluate the evidence in a fair and unbiased manner. The court and parties then

questioned juror 9. Juror 9 also observed members from the gallery as they left the

courthouse but did not observe anyone watching them. She was not bothered until juror

8 brought it to her attention. Juror 9 did not believe the events would impact her ability



       6 State   v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
                                               -14-
No. 76011-4-1/15


to be fair or impartial. After the voir dire of jurors 8 and 9, the trial court explained that it

was not declaring a mistrial.

       Defense counsel asked the court to question the remaining jurors. The State

objected and expressed concern that if they cross-examine each of the jurors it might

result in getting them to "adopt something that's not there" and provide the defense a

reason to challenge the juror. The court, initially siding with the State, was afraid to

question more jurors for fear of "poison[ing] the water." The court explained that it

viewed juror 8 very different than juror 9. It believed juror 8 had an issue, but that juror

9 was not intimidated, frightened, or concerned. Defense counsel agreed and

expressed belief that juror 8 should be removed, but that juror 9 was "probably okay."

But at defense counsel's suggestion, the court questioned each juror individually.

       Although each juror knew something about juror 8's observation, each juror

recounted a slightly different version of what juror 8 reported. Every juror confirmed that

the incident did not affect his or her ability to be fair and impartial going forward.

       Jurors 5 and 11 mentioned that they heard discussion of a "black Nissan" or

"black Altima" and that someone might have been watching them. This was concerning

because the shooter's car was black. But none of the other jurors mentioned a black

Nissan or black Altima. After questioning the entire jury, the court questioned jurors 5

and 11 again. After further argument, the court indicated that it planned to excuse juror

8 and deny the motion for a mistrial. Before denying the motion for a mistrial, the court

asked juror 8 if she mentioned anything about a vehicle to the other jurors. She denied

doing so.



                                             -15-
No. 76011-4-1/16


       After hearing argument, the court excused juror 8 and denied the motion for

mistrial. The court "believe[d] that Juror 11 and Juror 5[could] be fair and impartial. ...

[and that] they [could]follow the Court's instructions."

B.     Impartial Jury

       Jefferson argues first that he was denied his right to an impartial jury.

       The accused in a criminal trial has a constitutional right to a fair and impartial

jury. U.S. Const. amends. VI, XIV § 1; Wash. Const. art I, §§ 3, 22; State v. Brett, 126

Wn.2d 136, 157, 892 P.2d 29(1995). Where trial irregularities concerning the jury

arise, a new trial is warranted only when the defendant "has been so prejudiced that

nothing short of a new trial can insure that the defendant will be treated fairly." State v.

Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120(1997)(quoting State v. Russell, 125

Wn.2d 24, 85, 882 P.2d 747(1994)). The decision is a matter left to the discretion of

the trial court. State v. Bartholemew, 98 Wn.2d 173, 211, 654 P.2d 110(1982).

       Similarly, we review a ruling on a motion for mistrial for abuse of discretion.

See e.q., State v. Tiqano, 63 Wn. App. 336, 342, 818 P.2d 1369(1991)(reviewing

mistrial motion based on jury misconduct for abuse of discretion). "A trial court abuses

its discretion when it acts on untenable grounds or its ruling is manifestly unreasonable."

State v. Gaines, 194 Wn. App. 892, 896, 380 P.3d 540 (2016). An abuse of discretion

occurs "only if no reasonable person would adopt the view espoused by the trial court."

State v. Demerv, 144 Wn.2d 753, 758, 30 P.3d 1278(2001). "The trial court's ruling,

therefore, will not be disturbed unless this court believes that no reasonable judge

would have made the same ruling." State v. Thomas, 150 Wn.2d 821, 854, 83 P.3d 970

(2004).

                                          -16-
No. 76011-4-1/17


       Misconduct occurs when a jury considers extrinsic evidence. Gaines, 194 Wn.

App. at 897. Extrinsic evidence is information outside what is admitted at trial. "This

type of evidence is improper because it is not subject to objection, cross-examination,

explanation or rebuttal." State v. Pete, 152 Wn.2d 546, 553, 98 P,3d 803(2004)

(internal quotations omitted).

       If a potentially prejudicial contact is alleged, the court should "determine the

circumstances, the impact thereof upon the jury, and whether or not it was prejudicial, in

a hearing with all interested parties permitted to participate." Taranqo v. McDaniel, 837

F.3d 936, 948-49 (9th Cir. 2016)(quoting Remmer v. United States, 347 U.S. 227, 230,

74 S. Ct. 450, 98 L. Ed. 654 (1954)), cert. denied, 137 S. Ct. 1816 (2017).

        If the allegations are found to be true, then the "court must determine if the bias

or prejudice amounted to a deprivation of Fifth Amendment(due process) or Sixth

Amendment (impartial jury) guarantees." United States v. Hendrix, 549 F.2d 1225,

1229 (9th Cir. 1977). A trial court can inquire into the jurors' "subjective ability to

disregard extrinsic information before there is a verdict to potentially impeach." Gaines,

194 Wn. App. at 898.

       Jefferson argues that juror 8's comment about being intimidated tainted the jury.

He relies on three cases: State v. Rinkes, State v. Pete, and Mach v. Stewart. Rinkes

held that mistakenly sending a newspaper editorial and cartoon into the jury room

constituted prejudicial error. 70 Wn.2d 854, 862-63, 425 P.2d 658 (1967). Pete held

that a new trial was required where the court inadvertently sent the jury two unadmitted

but admissible written statements: a police officer's report and a defendant's written and

signed statement. Pete, 152 Wn.2d at 554-55. And Mach v. Stewart held that Mach's

                                           -17-
No. 76011-4-1/18


right to an impartial jury was violated when the venire was exposed to a veniremember's

expert-like statements about the veracity of children's claims of sexual abuse. 137 F.3d

630,634 (9th Cir. 1997).

       Unlike in Rinkes, Pete, and Mach, the trial court here opened an investigation

into the issue by conducting a voir dire of each juror individually. Because the

misconduct came to light before the verdict was rendered, the court and parties had the

opportunity to inquire into the jurors' "subjective ability to disregard extrinsic

information." Gaines, 194 Wn. App. at 898. The court conducted a full hearing into the

matter, confirmed that each juror, except for juror 8, could remain impartial, and

satisfied itself that the "black Altima" and "black Nissan" comments were heard out of

context.

       Part way through the court's voir dire, it considered giving a curative instruction.

Jefferson rejected this suggestion:

       I don't think there's a curative instruction that the Court can propose, and
       I've spent time since the Court went back to do that researching online,
       whether or not you can give curative instruction in this situation, and I
       don't know how you can do that. Can you tell the jurors to pay no
       attention to the statements of your fellow jurors? Put no credence in what
       your fellow jurors say? Of course you can't do that.

       I don't think it's something you can—I don't think the Court can invade
       that. The—I mean, I think we can hear what went on, but in terms of
       telling them to—In

       Given this record, the court's denial of Jefferson's mistrial motion is not

manifestly unreasonable. There is no basis to conclude that "no reasonable judge

would have made the same ruling." Thomas, 150 Wn.2d at 854.


       7   RP (May 19, 2015) at 1265.
                                            -18-
No. 76011-4-1/19


C.     Presumption of Innocence

       Jefferson also argues that the jury misconduct destroyed his presumption of

innocence. The presumption of innocence "is a basic component of a fair trial under our

system of criminal justice." State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967(1999)

(quoting Estelle v. Williams, 425 U.S. 501, 503, 96S. Ct. 1691, 48 L. Ed. 2d 126

(1976)). To implement the presumption, courts must be alert to factors that may

"undermine the fairness of the fact-finding process." Williams, 425 U.S. at 503. "Courts

must do the best they can to evaluate the likely effects of a particular procedure, based

on reason, principle, and common human experience." Williams, 425 U.S. at 504.

       Here, Jefferson's presumption of innocence was not destroyed. The court

investigated the jury misconduct thoroughly and determined that each juror (besides

juror 8) could remain impartial and that the "black Nissan" and "black Altima" statements

were heard out of context. Jefferson's argument that the presumption was lost when the

jurors "obtain[ed] information that the shooter car followed jurors" overstates the record.

After reviewing the entire record, we are satisfied that the comments about a black car

were minor comments that only two jurors thought that they heard. The comments were

not, as Jefferson argues, so prejudicial to him that they destroyed his presumption of

innocence.

                                            IV

       Jefferson argues that the trial court abused its discretion by improperly admitting

prejudicial gang evidence under ER 404(b). We disagree.

       ER 404(b) prohibits a court from admitting leividence of other crimes, wrongs,

or acts. . . to prove the character of a person in order to show action in conformity

                                          -19-
No. 76011-4-1/20


therewith." "This prohibition encompasses not only prior bad acts and unpopular

behavior but also any evidence offered to 'show the character of a person to prove the

person acted in conformity' with that character at the time of a crime." State v.

Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786(2007)(quoting State v.

Everbodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002)). We review evidentiary

rulings for abuse of discretion. State v. Yarbrough, 151 Wn. App. 66, 81, 210 P.3d 1029

(2009). "A trial court abuses its discretion when its decision is manifestly unreasonable

or exercised on untenable grounds or for untenable reasons." State v. Embry, 171 Wn.

App. 714, 731-32, 287 P.3d 648 (2012).

       Evidence of gang affiliation is considered prejudicial. Embry, 171 Wn. App at

732 (citing State v. Asaeli, 150 Wn. App. 543, 579, 208 P.3d 1136(2009)(noting "the

inflammatory nature of gang evidence generally")). Gang evidence may not be admitted

to prove that the defendant was prone to commit the crimes with which he was charged,

but may be admitted for other purposes. Yarbrough, 151 Wn. App. at 81. There must,

however, be a "nexus between the crime and the gang before the trial court may find

the evidence relevant." Embry, 171 Wn. App. at 732.

       Here, in response to a defense motion in limine, and without objection, the trial

court confirmed that this was "not a gang case" and was prepared to exclude all gang

evidence. The State confirmed that it was not a gang case, but asked to allow

witnesses that knew Jefferson by only his moniker—"Little Shake" or "Baby Shake"—be

allowed to use the nickname.

       After confirming that the State did not plan to put on expert testimony about gang

activity, the trial court excluded gang evidence with two caveats:(1)the State must

                                         -20-
No. 76011-4-1/21


admonish its witnesses to refer to Jefferson as "Mr. Jefferson," and that(2) Jefferson

would not prejudiced by witnesses testifying that they only knew Powell as "Shake" or

Jefferson as "Baby Shake." Jefferson did not object.

       At trial, references to "Shake Man," "Little Shake," and "Baby Shake" were

sparse. Wortham referred to Powell as "Shake Man" once during direct examination.

Jefferson did not object. The State admonished Wortham not to refer to Powell as

"Shake Man," but as "Dimitri Powell." On the seventh day of trial, the State asked

Sesilia Thomas, the manager of Latitude 84, if the knew "Shake Man." Thomas replied

that she knew that person. When the State asked Thomas to identify "Powell" in a

photo, Jefferson objected "to the form of the question." The court sustained the

objection on the ground that Thomas laid a foundation that she knew Shake Man, not

that she knew Powell. On the eighth day of trial, Goodman referred to Powell as "Shake

Man." After the State referred to "Shake Man" in three other questions, Jefferson

objected to the reference. The court sustained the objection. When the State resumed

its direct examination of Thomas, the State did not use the nickname again. Later that

day, Hunter testified that she knew Powell as "Shake Man," but that she did not know

Jefferson by any other name.

       The sparse references to "Shake Man" and "Baby Shake" did not violate

Jefferson's right to a fair trial. There was no testimony about a street gang, what a

street gang was, how a person joins, what membership entails, Jefferson's affiliation to

a gang, or how gang membership motivated the crime. The nicknames, to the extent

that they were used at trial, did not affiliate Jefferson with any gang or gang activity.



                                           -21-
No. 76011-4-1/22


       Jefferson argues that the nicknames have unsavory meanings that may

demonstrate gang membership, but Jefferson cannot link the nicknames to a specific

gang or gang activity. That the nicknames suggest that Jefferson was Powell's disciple

or protégé is not evidence of Jefferson's gang affiliation. As the trial court explained in

its pretrial ruling on this matter, "nicknames or street names . . . don't implicate or make

this a gang case." Jefferson's claim—that he was denied his right to a fair trial because

of improperly admitted gang references—fails.

                                             V

       Jefferson argues next that the court violated his constitutional right to present a

defense when the court excluded Jefferson's investigator, Patrick Pitt, from testifying at

trial and authenticating freeze frame images extracted from the Union 76 station

surveillance cameras. We disagree.

       We review a trial court's decision to admit or exclude evidence for abuse of

discretion. State v. Darden, 145 Wn.2d 612, 619,41 P.3d 1189 (2002). However, a

court "necessarily abuses its discretion by denying a criminal defendant's constitutional

rights.' State v. Iniquez, 167 Wn.2d 273, 280, 217 P.3d 768(2009)(quoting State v.

Perez, 137 Wn. App. 97, 105, 151 P.3d 249(2007)). "We review an alleged denial of

the constitutional right to present a defense de novo." State v. Lizarraqa, 191 Wn. App.

530, 551, 364 P.3d 810(2015); State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576

(2010).

       The Sixth Amendment to the United States Constitution and article 1, section 22

amendment 10 of the Washington State Constitution guarantee criminal defendants the

right to present testimony in one's defense. State v. Maupin, 128 Wn.2d 918, 924, 913

                                          -22-
No. 76011-4-1/23


P.2d 808 (1996); State v. Wade, 186 Wn. App. 749, 763-64, 346 P.3d 838(2015).

However, the right to present a defense is not absolute—the right does not extend to

irrelevant or inadmissible evidence. Wade, 186 Wn. App. at 763-64. The accused does

not have an unfettered right to offer testimony that is incompetent, privileged, or

otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S.

400,410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). The defendant's right to present a

defense is subject to "established rules of procedure and evidence designed to assure

both fairness and reliability in the ascertainment of guilt or innocence." Chambers v.

Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297(1973); State v.

Cayetano-Jaimes, 190 Wn. App. 286, 296, 359 P.3d 919 (2015).

       After the State rested, the court asked for a witness lineup for the defense.

Defense counsel indicated that Jefferson planned to call an investigator, Patrick Pitt.

When asked to summarize Pitt's anticipated testimony, defense counsel explained that

Pitt had looked at the Union 76 surveillance videos and extracted approximately 8

freeze frame images showing Powell. Because the court previously required the State

to lay a foundation for personal knowledge before allowing the introduction of the

surveillance videos, the State asked that foundation be laid for Pitt's personal

knowledge. The court, concerned that Pitt lacked foundation, and that the images were

from videos that the court had "seen ad nauseum," requested an offer of proof. The

court explained:

               Ms. Corey, here's the issue. Okay? And you probably know this
       better than anyone in this room because you probably are—have the most
       experience. Whenever we go to trial like this and the question is not just,
       is evidence relevant, and balancing the relevance verses the potential
       prejudice, you know, the issue is how we get it in.

                                          -23-
No. 76011-4-1/24


             We're at the third week of trial. The videos have not been a
      surprise to anybody. We all knew that they were there. We all knew what
      cameras were there, and I believe in almost every other occasion, either a
      person who actually observed, or operated the camera, or owned the
      camera, or took the picture, or could provide some basis for what we're
      seeing, is the one that we introduced the evidence through. And you
      know better that better than I do. And;in fact, that's why we don't just say,
      okay, Jury, here's some pictures. Go for it. Figure it out. That's always
      one of the issues.[8]

      The offer of proof revealed that Pitt was not at the Union 76 station on the night

of the shooting, did not know how many images he had extracted, and did not know

where or which cameras the photos were taken from.

      The court excluded Pitt's testimony explaining:

              No. 1, the first set is cumulative.
              No. 2, Mr. Pitt can't say for sure what camera is what, or what's
      being depicted.
              No. 3, Mr. Pitt can't lay a foundation. He's not a witness with
      knowledge that the matter is what it claims to be. ...
      And, finally, it's confusing to the jury. What is the jury supposed to do?
      Look at those pictures and try to ascertain what they mean, what they
      depict, who is who? And nobody can tell them because Mr. Pitt can't
      testify to it.
              So,finally Mr. Pitt has obviously taken snippets of photos from a
      video, but he can't tell us whether they're in any sequence; whether we
      took the first two minutes; or we took this from Minute No. 4, or 5, or 3, or
      1; or I got the ones that I thought would look good from the first couple of
      minutes and then the last minute. We don't know any of that, and nobody
      can explain that to the jury.
              Ms. Corey, you can't because then you'd be a necessary witness.
      He can't; he doesn't have first-hand knowledge.
              So I'm not going to have Mr. Pitt testify, and I'm going to exclude
      his lately—this evidence that is not timely, it is confusing, it's cumulative,
      and there's no foundation for [it]. I'll note your objection for the record.[9]




      8   RP(May 18, 2015)at 1048-49.
      9 RP(May   18, 2015) at 1053-54.


                                          -24-
No. 76011-4-1/25


       We agree that the trial court's decision did not deny Jefferson his Sixth

Amendment right to present a defense. The court properly excluded Pitt from testifying

for several reasons. First, ER 602 prohibits a witness from testifying about a matter if

the witness lacks personal knowledge of the matter. The rule has a low threshold for

what constitutes personal knowledge and only requires that evidence "sufficient to

support a finding" of personal knowledge be introduced. State v. Vaughn, 101 Wn.2d

604, 611,682 P.2d 878 (1984). "Testimony should be excluded only if, as a matter of

law, no trier of fact could reasonably find that the witness had firsthand knowledge."

Vaughn, 101 Wn.2d at 611-12.

       Under ER 602, Pitt was not competent to testify because he did not have

personal knowledge of the scene or location of the cameras. Pitt admitted that he was

not at the scene on the night of the shooting, did not know how many images were at

issue, or which camera each image was taken from. As the trial court explained,

"there's nothing that precluded the defense from showing the freeze frames to Ms.

Wortham,. . . any of the witnesses and saying: What is this? And were you here? And

you were here. And what is this?" Pitt, however, was not the right witness. "[N]co trier

of fact could reasonably find that the witness had firsthand knowledge." Vaughn, 101

Wn.2d at 611-12.

       Second, ER 403 allows a court to exclude relevant evidence if its probative value

is substantially outweighed by the danger of confusion of the issues, misleading the

jury, or needless presentation of cumulative evidence. It is not error to exclude

cumulative evidence. Saldivar v. Momah, 145 Wn. App. 365, 396, 186 P.3d 1117

(2008). The trial court reviewed Jefferson's proposed images and determined that they

                                          -25-
No. 76011-4-1/26


were cumulative to the videos and freeze frame images already introduced by the State.

The images were extracted from videos that had been repeatedly shown during the

course of trial. Moreover, Pitt was not prepared to testify which camera the images

were extracted from nor the relative timing. As a result, the trial court found Jefferson's

proposed images were both cumulative and potentially confusing.

       Jefferson's constitutional right to present a defense was not violated.

                                             VI

       Jefferson claims that the court abused its discretion when it denied his motion for

a mistrial based on prosecutorial misconduct. We disagree.

       We review rulings on allegations of prosecutorial misconduct for an abuse of

discretion. State v. Lindsay, 180 Wn.2d 423, 431, 326 P.3d 125 (2014). "The

defendant bears the burden of showing that the comments were improper and

prejudicial." Lindsay, 180 Wn.2d at 431. The prosecutorial misconduct inquiry consists

of two prongs:(1) whether the prosecutor's comments were improper and (2) if so,

whether the improper comments prejudiced the defendant. Lindsay, 180 Wn.2d at 431.

To show prejudice, the petitioner must show a substantial likelihood that the

prosecutor's statements affected the jury's verdict. Lindsay, 180 Wn.2d at 440. A

prosecutor can "argue that the evidence does not support the defense theory." Russell,

125 Wn.2d at 87. But a prosecutor "must not impugn the role or integrity of defense

counsel." Lindsay, 180 Wn.2d at 431-32.

       Jefferson identifies several events that he argues constitute prosecutorial

misconduct.



                                          -26-
No. 76011-4-1/27


       First, during a relatively heated redirect examination of the State's hostile

witness, Wortham, the prosecutor referred to defense counsel by her first name,

"Barbara." The trial court immediately called a sidebar. After the sidebar, the

prosecutor apologized for "getting a little too comfortable in here. Apologize for using

first names." While we agree with Jefferson (and apparently the trial court) that referring

to defense counsel by her first name was improper, Jefferson did not show that there

was a substantial likelihood that this statement affected the jury's verdict.

       Second, Jefferson asserts that the State made several speaking objections

during the trial. For example, during Jefferson's recross-examination of Officer Roberts,

the prosecutor objected that defense counsel was testifying. With the jury absent,

Jefferson argued that this objection was a personal attack on his defense counsel and a

comment on Jefferson's right to counsel. Jefferson moved for a mistrial and requested

a curative instruction. The court denied the mistrial motion and the request for a

curative instruction because "[defense] counsel[] read[] way more into the statement

than is warranted."

       The Rules of Evidence neither authorize nor prohibit speaking objections. 5

WASH. PRAC., EVIDENCE LAW AND PRACTICE § 103.8 (6th ed.). Instead, the trial court

decides the propriety of a speaking objections. This trial court ruled that the State's

objection was not improper. Jefferson has not demonstrated that any speaking

objections were improper or prejudicial.

       Third, Jefferson asserts that it was misconduct for the prosecutor to ask the trial

court to admonish one of the members of the gallery. As previously discussed, the

record reflects that the proceedings at times were contentious. On three occasions,

                                           -27-
No. 76011-4-1/28


during the three-week trial, outside the presence of the jury, the prosecutor reported that

he felt he was being questioned about his race, called names, and harassed by

Jefferson's father—a member of the gallery. Jefferson has not demonstrated that the

prosecutor's requests for an admonition were either misconduct nor prejudicia1.1°

        Finally, Jefferson asserts that the State impugned defense counsel when, during

the State's closing argument rebuttal, the prosecutor argued that Jefferson's counsel

agreed that Jefferson was running with his hand outstretched. Again, Jefferson has not

demonstrated that the State's argument impugned defense counsel, Lindsay, 180

Wn.2d at 431-32, or that the argument was prejudicial.

        The trial court did not abuse its discretion when it denied Jefferson's motion for a

mistrial based on alleged prosecutorial misconduct.

                                                    VII

        Jefferson next contends that there was insufficient evidence from which a rational

juror could find Jefferson guilty of attempted first degree murder and unlawful

possession of a firearm. We disagree.

        "When reviewing a challenge to the sufficiency of the evidence, the test is

whether, after viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt." State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). Further, "all reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

strongly against the defendant." Hosier, 157 Wn.2d at 8. Circumstantial evidence is not

        10 In his brief, Jefferson asserts that the most contentious of the events—the one that resulted in
Jefferson's father being temporarily removed from the courtroom for contempt—occurred in front of the
jury. This is incorrect. See RP (5/12/15) at 667-672 (colloquy); at 673(jury present).
                                                  -28-
No. 76011-4-1/29


to be considered any less reliable than direct evidence. State v. Delmarter, 94 Wn.2d

634,638,618 P.2d 99(1980).

A.     Attempted First Degree Murder

       A person commits the crime of first degree murder when, with premeditated

intent to cause the death of another person, he causes the death of such person. RCW

9A.32.030(1)(a). Premeditation is "the deliberate formation of and reflection upon the

intent to take a human life" and involves "the mental process of deliberation, reflection,

weighing or reasoning for a period of time, however short." State v. Condon, 182 Wn.2d

307, 315, 343 P.3d 357(2015)(internal quotations omitted). Premeditation must

involve "more than a moment of time." Condon, 182 Wn.2d at 315.

       To convict of an attempted crime, the State must prove both intent to commit the

crime and a substantial step toward its commission. RCW 9A.32.020(1). "In order for

conduct to comprise a substantial step, it must be strongly corroborative of a

defendant's criminal purpose." State v. Price, 103 Wn. App. 845, 852, 14 P.3d 841

(2000).

       A person commits first degree attempted murder when, with premeditated intent

to cause the death of another, he takes a substantial step toward commission of the act.

State v. Smith, 115 Wn.2d 775, 782, 801 P.2d 975(1990). The act of deliberately firing

a gun toward an intended victim is strongly corroborative of an attempt to commit first

degree murder. Price, 103 Wn. App. at 852-53.

       Here, there was sufficient evidence from which a rational jury could find Jefferson

guilty of attempted first degree murder beyond a reasonable doubt. Viewed in the light

most favorable to the State, the Union 76 station's surveillance footage shows the

                                          -29-
No. 76011-4-1/30


confrontation at the station, a man witnesses previously identified as Jefferson walk to

the car that he arrived in, open the trunk from the driver's side, walk to the trunk, search

through the trunk, pull out a small dark object, handle it, and run toward Robinson with

his arm outstretched ahead of him. While the weapon was never recovered, the

surveillance footage was played for the jury. The jury also had a series of time stamped

freeze frame images showing the events.

       State v. Price is instructive. In Price the court upheld a conviction for attempted

first degree murder based on evidence that the defendant deliberately fired a gun at the

victim's car. Price, 103 Wn. App. at 853. The Price court explained that "the act of

deliberately firing a gun toward an intended victim clearly is 'strongly corroborative' of an

attempt to commit first degree murder." Price, 103 Wn. App. at 853(quoting State v.

Vanaerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995)).

B.     Unlawful Possession of a Firearm

       To support a charge of first degree unlawful possession of a firearm, the State

must prove beyond a reasonable doubt that the defendant was previously convicted in

Washington of a serious offense and had a firearm in his possession or control. See

RCW 9.41.040(1)(a). Possession of a firearm can mean actual possession or

constructive possession. State v. Manion, 173 Wn. App. 610, 634, 295 P.3d 270

(2013). Actual possession means that the person charged with possession had

"personal custody" or "actual physical possession" of the firearm. Manion, 173 Wn.

App. at 634 (internal quotations omitted). Actual possession may be proved by

circumstantial evidence. Manion, 173 Wn. App. at 634.



                                          -30-
No. 76011-4-1/31


       Jefferson argues that the evidence to support this charge was insufficient

because "[n]0 witness saw Jefferson in possessi[on] of a gun." This argument fails.

       Here, there was sufficient evidence from which a rational jury could find Jefferson

guilty of unlawful possession of a firearm in the first degree. First, Jefferson stipulated

to a previous "serious offense as that term is defined in RCW 9.41." Second, although a

weapon was not recovered, there are (at least) three pieces of circumstantial evidence

that support a conclusion that Jefferson actually possessed a firearm:(1) Wortham

identified Jefferson as the shooter,(2) Exhibit 105 shows Jefferson pointing a handgun-

shaped object at Robinson, and (3) Robinson sustained gunshot wounds. Sufficient

circumstantial evidence supports the jury's finding that Jefferson was armed with a

firearm at the time of the crime.

                                            VIII

       Jefferson argues next that the "to convict" jury instruction for attempted first

degree murder omitted an essential element of the crime by failing to include a

premeditation element. We disagree.

       Whether a jury instruction correctly states the applicable law is a legal question

subject to de novo review. State v. Becklin, 163 Wn.2d 519, 525, 182 P.3d 944(2008).

A "to convict" jury instruction "must contain all the elements of the crime because it

serves as a 'yardstick' by which the jury measures the evidence to determine guilt or

innocence." State v. Smith, 131 Wn.2d 258, 263, 930 P.3d 917(1997); State v.

DeRvke, 149 Wn.2d 906, 910, 73 P.2d 1000(2003).

       "An attempt crime contains two elements: intent to commit a specific crime and

taking a substantial step toward the commission of that crime." DeRyke, 149 Wn.2d at

                                           -31-
No. 76011-4-1/32


910. Here, the "to convict" instruction informed the jury that in order to convict Jefferson

of attempted first degree murder, the State had to prove that he committed an act that

"was a substantial step toward the commission of Murder in the First Degree," and that

the act was done "with the intent to commit Murder in the First Degree." Additional jury

instructions accurately set forth the elements of murder in the first degree, including

premeditation, and defined "premeditation," "intent," and "substantial step."

       The court's instructions follow WPIC 100.02 and its "note on use" which

recommends a "to convict" instruction setting forth the essential elements of the

attempted crime and a separate instruction delineating the elements of the substantive

crime.11 This approach was approved by our Supreme Court in DeRyke, where it

rejected the defendant's claim that the "to convict" instruction for attempted first degree

rape was deficient because it failed to include all of the elements of first degree rape.

DeRvke, 149 Wn.2d at 911. Subsequently, in State v. Reed, 150 Wn. App. 761, 772,

208 P.3d 1274(2009), this court rejected the argument Jefferson makes here. Reed

held that the "to convict" instruction, identical to the instruction given here, correctly set

forth the elements of attempted first degree murder and did not relieve the State of its

burden to prove all elements of the charged crime. 150 Wn. App. at 772-73. See also

State v. Embry, 171 Wn. App. 714, 757-58, 287 P.3d 648 (2012).

       The "to convict" instruction provided to the jury correctly set forth all essential

elements of the crime of attempted first degree murder.




       11 11A WASH. PRAC., PATTERN JURY INSTR. CRIM.   WPIC 100.02(4th Ed. 2016).
                                            -32-
No. 76011-4-1/33


                                            IX

       Jefferson next contends that his trial counsel was ineffective because she

displayed unprofessional behavior. We disagree.

       To prevail on an ineffective assistance of counsel claim, a criminal defendant

must demonstrate (1) deficient performance by counsel and (2) resulting prejudice.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).

To establish deficient performance, the defendant must show that trial counsel's

performance fell "below an objective standard of reasonableness." Strickland, 466 U.S.

at 688. Courts presume counsel's representation was effective. Strickland, 466 U.S. at

689. This presumption is rebutted if there is no possible tactical explanation for

counsel's action. In re Pers. Restraint of Cross, 180 Wn.2d 664, 694, 327 P.3d 660

(2014). Whether an attorney renders ineffective assistance of counsel when he or she

violates the Rules of Professional Conduct is a question of law. State v. Garrett, 124

Wn.2d 504, 517, 881 P.2d 185(1994).

       In Garrett, the defendant claimed he was deprived of effective assistance of

counsel due to his attorney's unprofessional conduct throughout the trial. Garrett, 124

Wn.2d at 517-518. Our Supreme Court agreed that defense counsel's conduct,

throughout the trial, was "boorish, contemptuous, discourteous, disrespectful, insolent,

obdurate, obnoxious, offensive, rude and uncouth." Garrett 124 Wn.2d at 522. Indeed,

the Court referred the matter to the Washington State Bar Association for appropriate

disciplinary investigation and proceedings. Garrett 124 Wn.2d at 522. However,

despite defense counsel's unprofessional conduct toward the trial court, our Supreme

Court denied defendant's claim for ineffective assistance. The court explained:

                                          -33-
No. 76011-4-1/34


      However, with a few minor exceptions, the verbal exchanges between
      defense counsel and the court occurred out of the presence of the jury. It
      cannot be said that Respondent was prejudiced in his right to a fair trial
      based on matters that were not brought to the attention of the jury.

Garrett 124 Wn.2d at 523.

      The trial court here admonished Jefferson's counsel numerous times throughout

the trial. For example, the trial judge informed defense counsel that he was considering

reporting her to the WSBA over her communications with the State's hostile witness

Wortham. The court also admonished Jefferson's counsel for her lack of candor to the

court and opposing counsel regarding the evidence reviewed by the defense forensic

expert Sweeney. Although we agree with the trial court that Jefferson's counsel

behaved unprofessionally, Jefferson's claim of ineffective assistance of counsel fails.

Defense counsel's conduct in no way rose to the level of misconduct described in

Garrett. Moreover, like in Garrett, the trial court's admonishment of defense counsel

took place outside the presence of the jury.

       Accordingly, Jefferson cannot establish a claim for ineffective assistance of

counsel. Defense counsel zealously and aggressively represented Jefferson

throughout the trial. The entire record demonstrates that Jefferson did have effective

assistance of counsel and was not prejudiced in his right to a fair and impartial trial.

                                               X

       Finally, Jefferson claims that cumulative errors at trial denied him his right to a

fair trial. We disagree.

       Under the cumulative error doctrine a court may reverse a defendant's conviction

when the combined effect of errors during trial effectively denied the defendant a right to


                                          -34-
No. 76011-4-1/35


a fair trial, even if each error standing alone would be harmless. State v. Venegas, 155

Wn. App. 507, 520, 228 P.3d 813(2010). "But the doctrine does not apply where the

errors are few and have little or no effect on the trial's outcome." Venegas, 155 Wn.

App. at 520.

       Here, Jefferson cannot establish a claim for cumulative error because there were

not multiple and separate errors that denied him a right to a fair trial.

       Jefferson's conviction is affirmed.




                                                        71414444    sf,


WE CONCUR:



    t r i c/tis e‘ji AC                                                 /




                                             -35-
