                                                                                      FILED
                                                                               UOUIRT OF APPEALS
                                                                                    DIVISION 1
                                                                              2013 JUN -4   AM 8:56
    IN THE COURT OF APPEALS OF THE STATE
                                                                            OMMAW,TKim
                                         DIVISION II                          1; '._ _ .
                                                                               1

STATE OF      WASHINGTON,                                                 No. 42427 4 II
                                                                                    - -
                                                     I
                              Respondent,

         V.




OLUJIMI AWBAH BLAKENEY,                                           UNPUBLISHED OPINION


                              I1



         JOHANSON J. —      During a physical altercation in a Tacoma neighborhood, Olujimi

Awbah Blakeney threatened a woman with a gun. When leaving the altercation scene, Blakeney

fired multiple shots from a moving vehicle, killing a bystander. A jury convicted Blakeney of

first degree murder, drive by shooting, first degree unlawful firearm possession, and second
                           -

degree assault. He appeals his conviction and sentence, claiming (1)prosecutorial misconduct

relating to vouching for a witness's credibility, ( )public trial and open records violations
                                                  2

regarding sealed juror questionnaires, 3) evidentiary error, 4) trial court error in. that
                                       ( an                  ( a                    ruling

the first degree murder and drive by-
                                  - shooting offenses were not the same criminal conduct, 5)
                                                                                          (

an improper jury instruction, and (6)ineffective assistance of counsel. Of the issues preserved

for appeal, Blakeney demonstrates no reversible error, and we affirm.
                                                FACTS


         On . a July 2010 evening, Blakeney was with Manuel Castillo, Herman Jackson, and
Castillo's fianc6e and mother of his child, Christina Roushey. That night, Blakeney, an African

American, wore a black hooded sweatshirt; Castillo, a light -
                                                            skinned Native American, wore a red

shirt.   Roushey received   text   messages   from       acquaintance   Jordan Kudla that led Castillo to
No. 42427 4 II
          - -




believe that Kudla was threatening Roushey and their daughter. In response, Castillo wanted to

fight Kudla.

       Jackson drove Blakeney and Castillo to Kudla's neighborhood, and Jackson stayed with

the vehicle while Castillo went to fight. Blakeney remained seated in the front passenger seat.

Castillo and Kudla began wrestling and their fight caused a neighborhood commotion, leading

Kudla's mother; April Kudla, and others to come outside.

       April Kudla approached the fight with a baseball bat to break it up, but Blakeney

confronted her and asked if she planned to hit his " ittle homie with that bat." Verbatim Report
                                                   l                           5

of Proceedings (VRP)at 378. Blakeney.pointed a gun at her, and then raised it skyward, firing

two shots.


          After firing, Blakeney ran to the front passenger side of Jackson's car. April Kudla hit

both Jordan Kudla and Castillo with the bat until they released one another; then Castillo ran to

the rear driver's side of Jackson's car.


          Seconds after Jackson, Castillo, and Blakeney returned to the car and Jackson pulled the

car away, shots were fired from the vehicle's passenger side. One of these shots fatally struck
Lisa Melancon, a neighborhood resident, killing her almost instantly. Witnesses identified the

shooter    as   Blakeney, or   someone   matching Blakeney's description. Castillo and April Kudla

both testified that    Blakeney   fired the fatal shots.         Jordan Kudla, Arnie Hieronymus, Austin

Frederick, and Joe .Melancon all witnessed the shots being fired by someone wearing a black top,

consistent with the black       hoody   that   Blakeney   wore   that   night. Jackson also testified that he

heard Blakeney fire the.hots from the car's passenger side.
                       s




                                                          2
No. 42427 4 II
          - -




         After the shooting, Blakeney moved to California. He told his roommates that he had

shot and killed someone in Washington and that he had. disposed of the gun in a Washington

river.


         The State charged Blakeney with first degree murder by extreme indifference to human

life,'drive by shooting, first degree unlawful firearm possession, and second degree assault.
            -
The State reduced Castillo and Jackson's charges in exchange for their testimony at Blakeney's

trial.


         Before trial, Blakeney moved to compel discovery of the jail phone recordings of his

codefendant witnesses, Castillo and Jackson. Blakeney believed these recordings were material

because during the conversations, Jackson and Castillo spoke with family members about their
plea agreements. The trial court denied the motion to compel, explaining that Blakeney failed to
make a sufficient showing of materiality to justify the production of these recorded
conversations.


         Also, the parties agreed to present the jury venire with questionnaires, believing the

questionnaires   may aid in   jury selection.   The parties then used these questionnaires to

individually question certain venire members in open, court, outside the presence of other

potential jurors.



    RCW 9A. 2.
        b).
        030(
           1)(
           3
2
    RCW 9A. 6.
        045(
           1).
           3
3
    Former RCW   a), ch. 293, § 1. Former'RCW 9.1.
                 040(
                 9.1.
                    4 LAWS of
                    1)( 2009,                 010( 6),
                                                 1
                                                 4  LAWS
OF   2009, ch. 216, § 1.

4 Former RCW 9A. 6.
             021,
               3 LAWS of 2009, ch.;
                                  former RCW 9.1.
                                             010.
                                              4

                                                3
No. 42427 4 II
          - -




         At trial,witnesses testified that after the shooting, Blakeney moved to California. He told

one of his roommates, Ron Nocera, about the events surrounding the shooting; and, Blakeney

admitted that he had shot in Melancon's direction as the car pulled away. Another roommate,

Alijah Nocera, testified that Blakeney told him that he had shot the victim and then disposed of

the gun near a river. Finally, a third roommate, Mark Smith, testified that Blakeney confessed

that he had shot from a car and killed someone before throwing the gun in a river. 3 VRP at 78.

         Blakeney cross -examined Castillo and asked if Castillo's plea' greement required him to
                                                                       a

submit to polygraph examinations if the State requested. He responded affirmatively. Blakeney

then asked whether Castillo had undergone any polygraphs, and Castillo responded negatively.

In rebuttal, the State called Castillo's attorney, Michael Schwartz, to testify that the polygraph

provision was an investigatory tool and an incentive to the defendant to refrain from
untruthfulness," also that polygraph results are inadmissible at trial. 5 VRP at 440. Before
               and

Schwartz testified, the trial court read the jury a limiting instruction detailing the scientific

dispute over polygraph reliability, and the instruction explained that polygraphs are not generally
admissible in court; but, the instruction noted that the State commonly uses polygraphs as

investigative   tools.   Finally, the trial court instructed the jury that it "
                                                                              may consider its use or

nonuse    here in   evaluating the investigation conducted    in this   case.   You may not use the

polygraph testimony for any other purpose."5 VRP at 437. As part of the final instructions, the

trial court gave instruction 15, defining " eckless."Clerk's Papers (CP)at 99. Blakeney did not
                                          r

object to this instruction.




                                                    4
No. 42427 4 II
          - -




       On July 20, 2011, the jury convicted Blakeney on all counts. At an August 3 sentencing

hearing, Blakeney argued that his first degree murder and drive by-
                                                                - shooting convictions

constituted same criminal conduct for sentencing purposes. The trial court disagreed.

       On September 23, the trial court filed the juror questionnaires under.seal in open court.
Blakeney appeals his conviction and sentence.

                                                 ANALYSIS


                                     1. VOUCHING FOR A WITNESS .


       Blakeney argues that the State committed misconduct when it vouched for Castillo's

credibility by eliciting testimony regarding the polygraph provision in Castillo's plea agreement.

We reject this argument because, even if there was error, it was harmless.

       To. prevail on a prosecutorial misconduct claim, the defendant bears the burden of

showing that the comments were improper and prejudicial. State v. Ish, 170 Wn. d 189, 195,
                                                                             2

241 P. d 389 (2010).In order to prove prejudice, the defendant must show there is a substantial
     3
likelihood the misconduct affected the jury's verdict. Ish, 170 Wn. d at 200.
                                                                  2

       Assuming, without deciding,that Blakeney could show improper vouching, his claim still

fails because he cannot show prejudice. The allegedly improper testimony allowed the jury to

hear rebuttal testimony that polygraphs are inadmissible at trial and that they are used as

investigative   tools. The   jury   was   also   given   a   limiting instruction. We weigh any resulting

prejudice against the overwhelming evidence of guilt the State presented.




5 The record contains no transcript record or September 23 court order sealing these documents.
But the parties. agree that the trial court sealed these questionnaires on September 23, 2011.


                                                         5
No. 42427 4 II
          - -




       Here, multiple witnesses identified Blakeney or someone matching Blakeney's
                                                    —

descriptionas the shooter. In addition to Castillo, April Kudla testified that Blakeney fired the
           —

fatal shots.   Jordan Kudla, Hieronymus, Frederick, and Joe Melancon all witnessed the shots

being fired by someone wearing a black top, consistent with Blakeney's black hoody. Jackson

also testified that he heard    Blakeney    fire the shots from the car's passenger side.           Finally,

Blakeney's three California roommates testified that Blakeney confessed to shooting from the

car and killing Melancon

       In light of this overwhelming evidence, Blakeney fails to demonstrate any prejudice from

the alleged improper vouching. Thus, any error would have been harmless.

                                II. SEALING JUROR QUESTIONNAIRES

        Blakeney next argues that the trial court erred when it violated his public trial rights and

the public's right to open court records. by sealing jury questionnaires without a hearing.

Blakeney fails to demonstrate any reversible error regarding either his right or the public's right

to an open trial and records.

        When a trial court allows parties to use juror questionnaires as a screening tool during
                                                                      6
oral voir dire in open court, it need not   perform   a   Bone Club
                                                               -          analysis before later sealing those

questionnaires because the sealing does not constitute a courtroom closure implicating the
defendant's public trial rights. State v. Beskurt, 176 Wn. d 441, 447, 293 P. d 1159 (2013).
                                                         2                  3

Likewise where, as here, an appellant seeks a new trial to remedy an alleged violation of the

public's article I, section 10 rights to open records—
                                                     without also demonstrating an article I,

section 22 violationthe alleged error does not warrant a retrial. Beskurt, 176 Wn. d at 446.
                     —                                                           2


State v. Bone Club, 128 Wn. d 254, 906 P. d 325 (1995).
              -           2             2

                                                      6
No. 42427 4 II
          - -




                                 III. Alleged Denial of Exculpatory Evidence

         Blakeney next claims that the trial court erred in denying his CrR 4. (motion to
                                                                            d)
                                                                             7

compel the State to obtain the jail phone recordings of Jackson and Castillo because those

recordings may have been exculpatory. The trial court did not abuse its discretion.

         We review a trial court's denial of a motion to compel discovery for abuse of discretion.

State v. Norby, 122 Wn. d 258, 268, 858 P. d 210 (1993). A trial court abuses its discretion
                      2                  2

when it decides a matter on untenable grounds or reasons. State v. Lusby, 105 Wn. App. 257,

262, 18 P. d 625, review denied, 144 Wn. d 1005 (2001).
         3                             2

         RCW 70. 8.
             100(
                2 requires that the records of a person confined in jail " hall be held in
                4 )                                                      s

confidence and shall be made available" for court proceedings "upon the written order of the

court in which the          proceedings     are   conducted."   CrR 4. is a reciprocal discovery rule that
                                                                     7

separately      lists the   parties' obligations    when   engaging   in discovery. State v. Blackwell, 120


Wn. d 822, 826, 845 P. d 1017 (1993). CrR
  2                  2                                      d)
                                                            4. (
                                                             7 provides that when a defendant requests

materials that     a   prosecutor   cannot   obtain, if those materials   are   subject to   a   court's   jurisdiction, a
                                       1.




court shall issue a subpoena or order to make that material available to the defendant.

         But a defendant's right to disclosure relates only to favorable evidence that is material to

guilt   or   punishment. Blackwell,          120 Wn. d at 828. A defendant must demonstrate that the
                                                   2


requested discovery is material to the defense preparation. Blackwell, 120 Wn. d at 828. The
                                                                             2
mere possibility that undisclosed evidence might have helped the defense or might have affected
the trial outcome does not establish materiality. Blackwell, 120 Wn. d at 828.
                                                                   2

             Blakeney cannot demonstrate that the trial court abused its discretion in denying his

motion to compel because he did not show that the recordings were material to his defense.


                                                           7
No. 42427 4 II
          - -




Under CrR 4. ,the State sought the recordings on Blakeney's behalf; and, the sheriff denied the
           7

request, advising Blakeney that it would only release them by court order, citing state law and

Blackwell. Following state statute, Blakeney filed his motion to compel, in which he submitted

his   attorney's declaration that described interviewing   Castillo and Jackson.   The declaration


stated that Jackson had discussed his plea agreement with his mother and wife. Castillo said, I
                                                                                              "

told my    mom   about [the   plea agreement],my   mom   and my   grandma." CP at 43. Here, the

parties and trial court followed the procedures outlined under RCW 70. 8.
                                                                   100(
                                                                      2 CrR 4.
                                                                      4 ), 7, and

Blackwell. The trial court, following Blackwell, denied Blakeney's motion to compel because

Blakeney only showed that Jackson and Castillo mentioned the plea agreements' existence; he

failed to adequately show materiality. Because Blakeney only showed that Jackson and Castillo

mentioned the plea agreements' existence and nothing more, he does not demonstrate that the

trial court acted on unreasonable grounds or for untenable reasons in finding that the recordings

lacked the requisite materiality under Blackwell. Therefore, Blakeney cannot show that the trial

court abused its discretion. See Lusby, 105 Wn. App. at 262.

                                   IV. SAME CRIMINAL CONDUCT


         Next, Blakeney argues that the trial court erred in finding that first degree murder by

extreme indifference and drive by shooting did not encompass the same criminal conduct.
                               -

Blakeney is incorrect.

          We review factual determinations of same criminal conduct for an abuse of discretion.

State v. Maxfield, 125 Wn. d 378, 402, 886 P. d 1.3 ( 1994).Same criminal conduct is two or
                         2                  2 2

more crimes that require the same criminal intent, are committed at the same time and place, and

involve the same victim. RCW 9.
                             a).
                             589( 4A.
                                1)(
                                9



                                                   3
No. 42427 4 II
          - -




       Here, the trial court considered whether the murder and drive by shooting charges
                                                                     -

constituted same criminal conduct. The trial court found that the two charges required different

criminal intent and had different victims. The trial court is correct and therefore did not abuse its

discretion because the crimes require different criminal intent and had different victims. For first

degree murder, the State had to prove extreme indifference to human life, whereas the drive by
                                                                                            -

shooting required proof    of   recklessly discharging   a   firearm.   Compare RCW 9A. 2.
                                                                                    b)
                                                                                    030(
                                                                                       1)(
                                                                                       3

with RCW 9A. 6. Moreover,
         045.
           3                            Lisa Melancon was the victim of the first degree murder,

while the public was the victim of the drive by shooting. See State v. Rodgers, 146 Wn. d 55,
                                             -                                        2

62, 43 P. d 1 ( 2002)noting that the victim of a drive by shooting is the public). Accordingly,
        3             (                                -

the trial court did not abuse its discretion in finding that the first degree murder and drive by
                                                                                               -

shooting offenses.did not constitute same criminal conduct.

                                         V. JURY INSTRUCTION


        Blakeney next claims that the trial court improperly instructed the jury with instruction

15, regarding the " reckless" standard.      Blakeney, however,.failed to preserve this issue for

appeal.

          Any objections to jury instructions must be put in the record to preserve review. State v.

Sublett,   176 Wn. d
                 2      58, 75 76, 292 P. d 715 ( 2012). Because Blakeney did not object to
                               -        3


instruction 15 at trial, he did not preserve this issue for review.      He also fails to identify any

specific constitutional interest affected by the alleged jury instruction error; therefore, he does

not provide an avenue for RAP 2. (to apply (providing an appellant the opportunity to
                              a)
                               5

challenge an issue for the first time on appeal when the issue raises a manifest error affecting a

constitutional   right).
No. 42427 4 II
          - -



                               VI. INEFFECTIVE ASSISTANCE OF COUNSEL


         Finally, Blakeney argues that defense counsel provided ineffective assistance when he

agreed   to instruction    15, allegedly   a   misstatement of law.   Blakeney does not demonstrate a

deficient performance, so his claim fails.

         To succeed on an ineffective assistance of counsel claim, the defendant must show that

counsel's conduct    was    deficient; and the defendant     was   prejudiced   as   a   result. Strickland v.


Washington, 466 U. . 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).Counsel is presumed to
                 S

have acted competently unless shown otherwise. State v. Thomas, 109 Wn. d 222, 226, 743
                                                                      2

P. d 816 ( 1987).
 2                        In order to show prejudice, the defendant must demonstrate that it is

reasonably probable that "but for counsel's unprofessional errors, the result of the proceeding
would have been different."Strickland, 466 U. . at 694. If the ineffective assistance claim fails
                                            S

on one prong, the court need not address the other prong."State v. Staten, 60 Wn. App. 163,
              "

171, 802 P. d 1384, review denied, 117 Wn. d 1011 (199. ).
          2                              2            1

         At the outset, we must determine whether defense counsel's failure to object to

instruction 15 constituted deficient performance. Blakeney asserts that defense counsel should

not have agreed to instruction 15, which instructed the jury on the "reckless" standard applied

under our drive by shooting law. Blakeney cites the Washington Pattern Jury Instructions:
                -

         A person is reckless or acts recklessly when he or she knows of and disregards a
         substantial risk that a [wrongful act] fill in more particular description of act, if
                                                [(
         a   licable ) ]may   occur and this disregard is a gross deviation from conduct that a
         reasonable person would exercise in the same situation.




                                                       10
No. 42427 4 II
          - -



11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10. 3, at
                                                                         0

209 (3d ed.      2008) WPIC). The note after this instruction states, " se bracketed material as
                       (                                              U

applicable."WPIC 10. 3, at 209.
                   0

          Instruction 15 used the WPIC's exact language, including the language from the first set

of brackets, but it omitted the second set of brackets.                 Blakeney argues that defense counsel

should have asked that the instruction include language in the second set of brackets; he believes

that the instruction should have stated that a reckless act disregards a substantial risk that death

or   serious   physical injury   would   occur.   Blakeney argues that this version more accurately states

the law.


          Blakeney, however, fails to recognize that instruction 15 merely defined " eckless."The
                                                                                   r
  convict
to-              instruction, instruction' 23, mirrored           the     drive by
                                                                                -    shooting   statute,   RCW


045(
9A. 6.
   1 explaining
   3 ), that to convict Blakeney of drive by shooting,the jury had to find that
                                          -

Blakeney recklessly discharged a firearm from a motor vehicle, creating a substantial risk of

death or serious physical injury to another. Accordingly, Blakeney's version of instruction 15
would have added                     redundant to that        already   included in instruction 23.    Defense
                         language

counsel did not need to pursue this version of the instruction because its language was already
included elsewhere in the         jury instructions. As defense counsel acted reasonably, Blakeney

cannot     demonstrate deficient         performance   and his ineffective assistance claim fails.          See


Strickland, 466 U. .at 694.
                 S




7
     The State must prove that the defendant recklessly discharged a firearm in a manner that creates
substantial risk of death or serious physical injury to another, and the discharge is from a motor
vehicle. See RCW 9A. 6.
                 045(
                    1).
                    3

                                                         11
No. 42427 4 II
          - -



            Even if Blakeney could demonstrate deficient performance, as with his improper

                      he cannot show how the deficient      performance prejudiced   him.   Multiple
vouching claim,

eyewitnesses testified that Blakeney, or the only person in Jackson's car matching Blakeney's

description, fired shots from a passenger window toward a group of people as the car departed.

Moreover, Blakeney's California roommates testified that Blakeney confessed to shooting from

the   car   and   killing Melancon. Accordingly, Blakeney does not show that, but for counsel's

allegedly deficient performance, the jury would not have convicted him of drive by shooting.
                                                                                -

Accordingly, his ineffective assistance argument fails. See Strickland, 466 U. .at 694.
                                                                             S
            We affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
 0

                                                        1


                                                                      Johanson, J.




                                                   12
