                                                                           FILED
                                                                          MAY 8, 2018
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 34837-7-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JASON DONTE WILLIAMS,                         )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Jason Williams appeals his convictions for second degree murder

and three counts of first degree assault, primarily arguing that the court erred in giving an

instruction advising jurors that revenge did not constitute self-defense. We affirm.

                                          FACTS

       This case involved a shooting in the drive-through lane of a Moses Lake Jack-in-

the-Box restaurant around 1:30 a.m. on January 18, 2015. After a night of heavy

drinking following a family wedding, Mr. Williams and his wife, Martha Mejia, pulled

into the drive-through lane on their way home. Ms. Mejia was driving. A car driven by

Cynthia Martinez also pulled into the drive-through lane behind the Mejia-Williams

vehicle. There were four occupants of Ms. Martinez’s vehicle, all of whom also had

engaged in heavy drinking.
No. 34837-7-III
State v. Williams


       Deciding to leave, Ms. Mejia tried to back up, leading Ms. Martinez to honk her

car’s horn to stop Mejia from colliding with her. Ms. Mejia got out of the car and began

arguing with Ms. Martinez.1 Christian Guerra got out of the car to urge Mejia to calm

down. Ms. Mejia called for assistance from Mr. Williams. Williams began arguing with

Guerra and the two men began fighting between the two vehicles. Williams was knocked

to the ground and Guerra continued beating on him.

       The fight eventually ended and the combatants returned to their vehicles. Ms.

Martinez again attempted to back up to escape the drive-through lane, but hit a curb and

halted. Ms. Mejia got out and attempted to take pictures of Martinez’s car’s license plate.

A female passenger in the Martinez vehicle yelled at Ms. Mejia to stop taking pictures.

Mejia responded by going to the car, reaching through the window, and grabbing the

passenger by her hair. Another passenger got out and pulled Mejia away, tossing her to

the ground.

       Williams then got out and returned to the Martinez car and attempted to punch

Guerra through an open window. Guerra got out of the car and the two men engaged in

another fight between the two vehicles. Once again losing the encounter, Williams

walked back to his car and attention turned to where Mejia was in a struggle. Williams

returned with a gun and pointed it at Guerra, who raised his hands above his head.


       1
           The restaurant’s video camera captured much, although not all, of the ensuing
events.

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No. 34837-7-III
State v. Williams


Williams began firing at Guerra and at the car. Wounded, Guerra fell to the ground.

Williams and Mejia drove to their house. Martinez and her passengers drove Guerra to

the hospital where he expired.

       Williams was charged with one count of first degree murder, three counts of

attempted first degree murder, and three counts of first degree assault. All counts

contained a firearm enhancement. The case eventually proceeded to jury trial. The

defense obtained jury instructions on self-defense, defense of others, and no duty to

retreat. Over defense objection, the State obtained an instruction on revenge:

       Justifiable homicide committed in the defense of the slayer, or “self-
       defense,” is an act of necessity. The right of self-defense does not permit
       action done in retaliation or revenge.

Clerk’s Papers (CP) at 73 (Instruction 26).

       The parties argued the case under the competing theories of self-defense or

unjustified retaliation. The jury convicted Mr. Williams of the included offense of

second degree murder and on the three counts of first degree assault. All four offenses

were committed with a firearm.

       After receiving a mitigated exceptional sentence that still tallied 40 years, Mr.

Williams appealed to this court. A panel considered the case without hearing argument.




                                              3
No. 34837-7-III
State v. Williams


                                         ANALYSIS

       This appeal presents two claims.2 We initially will consider Mr. Williams’ claim

that the court erred by giving the revenge instruction. We then will turn to a contention

that misconduct in closing argument requires a new trial.

       Jury Instruction

       The first contention is that the trial court erred in giving the revenge instruction,

with Mr. Williams arguing that it unduly limited his right to act in self-defense by

focusing on the element of necessity. Since the record supported the instruction, the trial

court did not abuse its discretion.

       Settled law governs this contention. Jury instructions are sufficient if they correctly

state the law, are not misleading, and allow the parties to argue their respective theories of

the case. State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403 (1968). The trial court also

is granted broad discretion in determining the wording and number of jury instructions.

Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983). Discretion is abused when it




       2
         Mr. Williams also filed a personal statement of additional grounds that we will
not separately discuss. Some of the contentions are merely variations on his counsel’s
argument, while the other matters involve factual allegations outside of the record of this
case. His remedy, if any, for those claims is to bring a personal restraint petition in which
he can present his evidence in support of the arguments and allow the State to do the
same. See, e.g., State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995);
State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).

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No. 34837-7-III
State v. Williams


is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       The essence of Mr. Williams’ argument here is that the instruction was erroneous

because it focused on necessity rather than his subjective view of the need for self-defense.

This is not a proper comparison of the purposes of the instructions. The standard for using

self-defense was set out in Instruction 16. CP at 62. Following that instruction were a

series of instructions focusing on differing aspects of the justifiable use of force. For

instance, Instruction 18 advised jurors that a person acting in self-defense can only use

necessary force. CP at 64. The definition of “necessary” was set out in Instruction 25. CP

at 72. It was in this context that Instruction 26 advised jurors that revenge was not

necessity. CP at 73.

       Instruction 26 did not purport to be the complete law of self-defense, just as the other

instructions supporting and explaining Instruction 16 did not themselves fully define the

concept. Instead, each instruction had a specific part to play in explaining the concept of

self-defense in its totality. Instruction 26 was not misleading and did allow the State to

argue its theory of the case—Mr. Williams was acting out of vengeance rather than

necessity. Nothing in that instruction prevented Mr. Williams from arguing his theory of

the case. Accordingly, Instruction 26 was proper. Dana, 73 Wn.2d at 536-537.

       Although he raises several distinct arguments against Instruction 26, they all flow

from his perception that the instruction is erroneous. We need not address the contentions

                                               5
No. 34837-7-III
State v. Williams


separately because the instruction has already been upheld by State v. Studd, 137 Wn.2d

533, 550, 973 P.2d 1049 (1999). Studd, a consolidated appeal addressing six different

cases, primarily involved challenges to pattern self-defense instructions. Some of the

cases also presented additional challenges. The Pierce County case involving defendant

Lee Cook, Jr., was one of them.

       The trial court had given an instruction identical to the one at issue in this case.

Id. Arguing that the instruction improperly emphasized the State’s theory of the case,

Mr. Cook claimed that the instruction had never been approved and was improper. Id.

The court disagreed, noting that it was consistent with the court’s decision in State v.

Janes, 121 Wn.2d 220, 240, 850 P.2d 495 (1993). Concluding its discussion of the

instruction, the Studd court stated:

       We find that the instruction correctly stated the law, and did not unfairly
       emphasize the State’s theory of the case or, in any way, comment upon the
       evidence.

137 Wn.2d at 550.

       Studd answers Mr. Williams’ argument here. The instruction was not erroneous.

Moreover, this court, of course, is bound by a decision of the Washington Supreme

Court. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). The trial court correctly

gave the revenge instruction under these facts. There was no error.




                                              6
No. 34837-7-III
State v. Williams


       Closing Argument

       Mr. Williams next argues, quite correctly, that the prosecutor erred in closing

argument by challenging the jury to articulate any reasonable doubt it might be

entertaining. The State now, also correctly, concedes the error. It argues, and we agree,

that the error was not prejudicial.

       In closing argument, the prosecutor told jurors that “if you can’t assign a reason to

that doubt, if you can’t articulate or talk about what that doubt is, at that time you’re

beyond a reasonable doubt.” Report of Proceedings (RP) at 2563. There was no

objection by defense counsel.

       It is improper for a prosecutor to urge jurors to “fill in the blanks” or otherwise

force them to explain why they have a reasonable doubt. State v. Kalebaugh, 183 Wn.2d

578, 584-585, 355 P.3d 253 (2015); State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653

(2012). This error “subtly shifts the burden to the defense.” Emery, 174 Wn.2d at 760.

We agree with the parties that the statement was erroneous.

       However, erroneous statements of this kind are not automatically grounds for

reversal. Id. at 762-763. If defendant did not object at trial, the error is deemed waived

unless the prosecutor’s misconduct was so flagrant and ill-intentioned that it could not

have been neutralized by a curative instruction. Id. at 760-761. The “flagrant and ill-

intentioned” standard for misconduct requires the same “strong showing of prejudice” as

the test for manifest constitutional error under RAP 2.5(a). State v. O’Donnell, 142 Wn.

                                              7
No. 34837-7-III
State v. Williams


App. 314, 328, 174 P.3d 1205 (2007). Under this heightened standard, the defendant

must show that (1) “no curative instruction would have obviated any prejudicial effect on

the jury” and (2) the misconduct resulted in prejudice that “had a substantial likelihood of

affecting the jury verdict.” State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43

(2011).

       The prosecutor’s error was not prejudicially harmful under this demanding

standard. The prosecutor’s remark immediately followed a statement where he told

jurors that the burden of proof “always” remained “at this table” and was the only

statement of its kind occurring during a lengthy closing argument. RP at 2563. He

concluded his argument by requesting that jurors find the defendant guilty of first degree

murder of Mr. Guerra and attempted murder of the other three. He also told jurors that if

they did not agree, second degree murder of Mr. Guerra and either first or second degree

assault of the others were appropriate verdicts. RP at 2606. The jury rejected the greater

charge in each instance and returned verdicts on the lesser offenses.

       In the context of the argument, it is not likely that the jury considered the

prosecutor’s remarks as a shift in the burden of proof. More critically, the error was close

enough that an objection could easily have led to a correction or clarification of the

statement. This passing remark simply was not so egregious that the court could not have

cured the problem. Although erroneous, the remark simply was not so flagrant that the

fairness of this trial was impacted.

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No. 34837-7-III
State v. Williams


       The convictions are affirmed. 3

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




      Pennell, A.CJ.




      3 Mr. Williams also asks that appellate costs be waived. In light of the prosecutor's
statement that costs will not be sought, this issue is moot.

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