                                                              ALA? VV
                                                   STATE'OF::WAHJNm

                                                   2018 SEP -4 AM 11: 06




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                         No. 75060-7-1

                        Respondent,              DIVISION ONE

                V.

MARQUE DEANDRE FLUKER,
                                                 PUBLISHED OPINION
                        Appellant,

JERRY ALLEN FLUKER,

                        Defendant.               FILED: September 4, 2018

      SCHINDLER, J. — MarQue Deandre Fluker shot and killed LeMaun

Lancaster. The State charged Fluker with intentional murder in the second

degree while armed with a firearm. The jury rejected his claim of self-defense

and convicted Fluker of the lesser included crime of manslaughter in the first

degree while armed with a firearm. Fluker seeks reversal. Fluker contends(1)

the court violated his right to present a defense by excluding evidence that he

had a permit to carry the gun and (2) the court erred by refusing to instruct the

jury on manslaughter in the second degree. Because the court did not abuse its

discretion by excluding the evidence and ruling the evidence did not support

instructing the jury on manslaughter in the second degree, we affirm.
No. 75060-7-1/2

                                     FACTS

       King County Sheriff Deputy Matthew Paul responded to reports of a

shooting in the parking lot at 68th Avenue South and Renton Avenue South at

approximately 7:41 p.m. on August 12, 2015. Deputy Paul saw a black man,

later identified as LeMaun Lancaster, on the ground surrounded by people

"providing first aid." Lancaster "had several gunshot wounds to his body."

Lancaster had been shot 8 to 10 times in the chest, abdomen, back, legs, arm,

and hand.

       While Deputy Paul put pressure on the wounds, he asked Lancaster, "[D]o

you know who shot you." In response, Lancaster "kept saying Mar'Que

repeatedly."

       While waiting for medics, Detective Aaron Thompson helped apply

pressure to the wounds in the left upper chest area. Lancaster was having

"difficulty breathing" and was "in and out of consciousness." Detective

Thompson asked Lancaster "if he could tell me who shot him." Lancaster told

Detective Thompson "Mar'Que Fluker" shot him.

       Lancaster died in the ambulance on the way to Harborview Medical

Center.

       Deputy Paul interviewed witnesses. Detective Chris Johnson collected 9

mm bullet casings from the parking lot where Lancaster was shot. Detective

Thien Do obtained surveillance videos from Ezell's Famous Chicken and a

marijuana dispensary, GHL. The police later watched the surveillance videos.




                                        2
No. 75060-7-1/3

      The surveillance video from Ezell's Famous Chicken and GHL show what

happened leading up to the shooting and the shooting.

      Lancaster, Jalen Coleman-Roy, and Joseph "Tank" Davison are talking

while standing together in front of Ezell's and GHL. Lancaster is wearing a white

T-shirt and grey sweatpants; Coleman-Roy is wearing a black sweatshirt, gray

sweatpants, and red shoes; and Davison is wearing a white T-shirt, dark shorts,

white shoes, and a red hat. Mar'Que Deandre Fluker, his older brother Jerry

Allen Fluker, and their nephew Jayvon "Bubba" Grayson drive into the parking lot

near Ezell's in a silver Chevrolet Impala. Mar'Que is wearing a Seattle

Seahawks jersey with the number 24; Jerry is wearing a Portland Trailblazers

jersey, black pants, and a red hat; and Grayson is wearing a green shirt and a

green and blue stocking cap.1 The two groups stand near the curb, talking.

Lancaster tries to give a flyer to Grayson. Grayson pushes Lancaster's hand

away and they gesture to each other.




        For purposes of clarity, we refer to Mar'Que Fluker and Jerry Fluker by their first names.


                                               3
No. 75060-7-1/4

       Lancaster punches Grayson. Lancaster and Grayson then posture and

throw punches for several minutes. After the fight moves into the parking lot,

Coleman-Roy and MarQue intervene and separate Lancaster and Grayson.

Coleman-Roy pushes Grayson toward the Impala. Mar'Que and Davison push

Lancaster in the opposite direction.




       Jerry then approaches Lancaster and pushes him in the chest. Lancaster

punches Jerry in the face, knocking off his hat. MarQue has his hands at his

waist. Davison is standing with his hands behind his back.




                                        4
No. 75060-7-1/5

      Mar'Que removes a gun from his pants and walks toward Lancaster. As

Lancaster backs away, Mar'Que raises his left arm and points the gun at

Lancaster with his right arm extended.




                                         5
No. 75060-7-1/6

       Mar'Que shoots Lancaster at least eight times. Lancaster doubles over,

twists away from Mar'Que, and falls to the ground. Davison (Tank) backs away,

turns, and runs away in the opposite direction.




                                        6
No. 75060-7-1/7

      As Lancaster falls to the ground, Jerry picks his hat up off the ground and

Mar'Que walks away. Jerry walks to the Impala and gets in the driver seat.

Mar'Que puts the gun back in his pants and paces back and forth.




                                        7
No. 75060-7-1/8

       Mar'Que and Grayson get in the car. Coleman-Roy runs to help

Lancaster. As Jerry backs out of the parking space, Mar'Que jumps out of the

car.




       Mar'Que walks toward Lancaster but then turns back, talks to someone in

the Impala, and then gets in the back seat of the car. Jerry drives away.




                                        8
No. 75060-7-1/9

       The State charged MarQue Fluker with intentional murder in the second

degree while armed with a firearm and charged Jerry Fluker with felony rendering

criminal assistance in the first degree. Jerry pleaded not guilty. Mar'Que

asserted self-defense and defense of others.

       The State called over 20 witnesses to testify during the two-week jury trial.

The court admitted into evidence a number of exhibits, including an exhibit with

the surveillance video from Ezell's and GHL and 872 still photographs of the

events leading up to the shooting and the shooting, exhibit 21.

       Emergency medical technician Steven Anderson testified he "noticed a

group of gentlemen across the parking lot hanging out." Anderson was "about 50

yards" away and "couldn't tell if they were arguing or if they were fighting. It

appeared to me that it was a group of friends kind of throwing fake punches at

each other." Anderson heard the voices "get louder" and "one person, you know,

hit one person, hit the other person, and then vice versa." Anderson testified that

the group of men "kind of converged on each other to try to separate the two that

were fighting, and that's when one of them pulled out a gun." Anderson testified,

"Someone started shooting." Anderson said the group "somewhat dispersed, it

backed up, and then somebody had said, you know, why would you pull out a

gun." After the shooter "got into the car" and drove away, Anderson went "over

to where the kid that was shot was on the ground." There were "multiple bullet

wounds in him." While waiting for the medics to arrive, Anderson applied

pressure to some of the wounds.
No. 75060-7-1/10

       Coleman-Roy testified he was friends with Lancaster and Mar'Que since

high school and considered Grayson "like my little brother."

       The State played the exhibit with the surveillance video during the

testimony of Coleman-Roy, and he described what happened. Coleman-Roy

testified that Lancaster was passing out flyers for a "rapper coming to town" and

tried to give a flyer to Grayson, but he pushed it away. Grayson started "trash-

talking" and said the "rapper is weak." At first, Lancaster and Grayson "were just

trash-talking to each other, just joking around with each other how friends do."

But then "they got face to face, and that's when it escalated and the fight broke

out." After Grayson "kept antagonizing" Lancaster, Lancaster punched Grayson,

and Grayson "defended himself."

       Coleman-Roy said Lancaster and Grayson fought for several minutes

before he and Mar'Que intervened. Coleman-Roy testified that "[o]nce they

started fighting, our first instinct was to break it up." But no one immediately

intervened. After "[t]he situation was only escalating more and more between"

Grayson and Lancaster,"we started to break it up." Coleman-Roy grabbed

Grayson and Mar'Que grabbed Lancaster. Coleman-Roy said Jerry "was just

kind of standing off to the side" and "paying no attention" to Lancaster and

Grayson.

       Coleman-Roy pushed Grayson toward Jerry's silver Impala that was

parked nearby. As Grayson "started to get in the car," he "started pointing over

[Coleman-Roy's] shoulder." As Coleman-Roy turned around to see what




                                         10
No. 75060-7-1/11

Grayson was pointing at, he heard gunshots and saw Lancaster fall "to the

ground."

       Coleman-Roy said Davison "was just standing there" and never

intervened. "He was scared the whole time. . . to get involved." Coleman-Roy

did not hear "anybody say anything about a gun" before hearing the gunshots.

Coleman-Roy did not see anyone with a gun except Mar'Que. Coleman-Roy

stayed with Lancaster and called 911.

       King County medical examiner Dr. Desiree Marshall testified about the "15

actual gunshot wounds" in Lancaster's left upper chest, left abdomen, left back,

mid-lower back, left thigh, right leg/knee, left forearm, and left hand and a "graze"

to Lancaster's right upper chest. Dr. Marshall recovered bullet fragments "from

his left hip bone." Dr. Marshall testified the "minimum number" of "total separate

gunshots""would be eight" and the "highest would be ten."

       Washington State Patrol Crime Laboratory firearm examiner Kathy Geil

analyzed the "several cartridge cases" and the "fired bullet" recovered from the

parking lot. Geil testified the cartridges and bullet "were 9 millimeter caliber" and

"had all been fired from the same firearm." Geil testified that rounds fired from a

semiautomatic gun are fired "as fast as you can pull the trigger."

       Mar'Que Fluker, Bruce Johnson, and Jerry Fluker testified on behalf of the

defense. Mar'Que testified he and Lancaster "grew up in the same

neighborhood" and had been friends since middle school. The court admitted a

recent cell phone video of Mar'Que and Lancaster "in the car rapping" together.

The defense played the video for the jury.



                                         11
No. 75060-7-1/12

         Mar'Que testified that when he arrived at the parking lot on August 12, he

gave Lancaster "a handshake, like a little hug at the same time." Mar'Que said

Lancaster asked whether Mar'Que had his "new gun." Mar'Que said Lancaster

knew "that I had bought a new gun and stuff, and he asked me if I had it, and I

was like yeah, I was like, where's yours? He's like my shooter got it, my friend

Tank."

         Mar'Que said everyone was "getting along" until his nephew Grayson and

Lancaster started "disputing about the rapper and stuff like that." Lancaster hit

Grayson and they started "scuffling." After they stopped fighting, Mar'Que

grabbed Lancaster and pushed him away. But Mar'Que said Lancaster and

Grayson were "still trying to get at each other" and the fight moved "out to the

parking lot." Mar'Que testified, "I'm grabbing [Lancaster] and pushing him away

because he's saying more stuff that's, you know, more crazy like I kill you with

my bare hands, talking to [Grayson]." Mar'Que told Lancaster, "I'm like, that's

what you're not going to do, you know." Mar'Que testified, "I'm just pushing

[Lancaster] away, because things is just getting too out of hand now," and, "I

guess he starts getting mad at me because I tell him, that's not what you're going

to do, you know, like defending my nephew, whatever, and then just keep on

pushing him."

         Mar'Que admitted he did not see Lancaster with a gun. But according to

Mar'Que, Lancaster was "telling Tank to go grab his gun... . He was cussing

and stuff, just like go get my shit, you know, and just cussing and saying what

he's going to do to us and whatnot." Mar'Que testified that he was "afraid."



                                         12
No. 75060-7-1/13

Mar'Que said Lancaster acted "like that" at a party "a couple weeks before" when

he "pulled the gun out.. . on one of our friends." Mar'Que said he was able to

eventually "calm [Lancaster] down that time." Mar'Que said that on August 12,

he was "trying to calm [Lancaster] down because I didn't want things to get that

far."

        Mar'Que testified that while he was pushing Lancaster away from

Grayson, Lancaster "said that, you know, he'd kill us with his bare hands," and he

would take "my gun" and "use it on me."

        Mar'Que testified his older brother Jerry "grabbed [Lancaster], like just chill

out, you know," and then Lancaster "pushed my brother." When Lancaster

punched Jerry, Mar'Que pulled out his gun and shot Lancaster. Mar'Que said he

was not trying to kill Lancaster, just "stop him."

        Q Did you shoot him?
        A Yes. After he socked my brother.
        Q And were you trying to kill him?
        A No.
        Q What were you trying to do?
        A Just trying to stop him.
        Q Did it happen — how fast did it happen?
        A It happened so fast, like a blink of an eye.
        Q Okay. What did you do when you shot him?
        A Urn, well, when he had punched my brother, he had said,
        shoot him; that's why I reacted, because when he socked my
        brother, he said, shoot him, so I thought, you know, you know, me
        and my brother is going to get shot.

        The prosecutor played the video during the cross-examination of Mar'Que.

Mar'Que testified that Lancaster threatened to kill him with his "bare hands" and

told Davison to go get his gun.

        [W]hen I first started pushing him away from everybody else, that's
        when he first started saying, I'll kill you with my bare hands, and


                                          13
No. 75060-7-1/14

      that's when I'm like, no, you're not. And I'm still pushing him away.
      And he said, well, I'll take your gun from you and use it on you.
      And then I'm like, you know, you got me fucked up; you're not going
      to take nothing from me, you know, and that's when he start saying
      — he's saying, go get my shit to Tank, and then we started walking
      off still, and he says it another time.

But Mar'Que admitted Lancaster did not try to get Mar'Que's gun away from him.

      Q    ... Are we going. . . to see [Lancaster] go for your gun?
      A    No.

      Mar'Que testified that while he was trying to calm down Lancaster, he

"wasn't concerned" about Davison. The video shows that at the point Mar'Que

said Lancaster told Davison to "go get" a gun, Davison remains standing with his

hands behind his back and does not have a gun.

      Mar'Que testified that when he was pushing Lancaster away from

Grayson, he was "not concerned" that Lancaster was going to kill anyone, but

"[t]he way [Lancaster] was talking made me concerned about what was going to

happen next." Mar'Que testified that he decided to pull out his gun and shoot

Lancaster "[w]hen he socked my brother and said, shoot him."

      Q    Well, you knew [Lancaster] didn't have a gun in his hand?
      A    Not in his hand.
      Q    Right. And you shot him anyway?
      A    To stop him.

       Mar'Que admitted he did not fire the gun "accidentally."

      Q And that day this gun that you had, it didn't go off accidentally,
      correct?
      A Did it go off accidentally? No.




                                        14
No. 75060-7-1/15

Mar'Que testified he had to "intentionally" pull the trigger each time he fired a

shot at Lancaster.

        Q You intentionally pulled the trigger?
        A Yeah, to stop him. That was my intentions, to stop him from
        doing anything else.
        Q And you intentionally pulled the trigger more than once?
        A It happened so fast. I know it was more than once but — it
        was more than once.

But Mar'Que did not remember how many times he shot Lancaster. "It was just

like adrenaline. I don't remember. It just happened so fast."

        Mar'Que testified that after he shot Lancaster, he wanted to stay but his

brother convinced him to leave.

        Bruce Johnson operates a mobile automobile detail business out of the

parking lot near Ezell's. Johnson testified he heard "these youngsters" engaging

in "a bunch of laughing and joking," but then "a bunch of arguing."

        Johnson testified that he heard Lancaster "telling somebody to go get his

gun."

        [T]he only thing I heard about the gun, and I heard one guy say,
        well, you know, this — you know, if you hit me, then we're going to
        have problems. And the other guy — I heard another guy say, I
        think it was the deceased guy, say, well, go get my gun, and he
        was telling somebody to go get his gun; I don't know who, who the
        person was. I don't know who. I had never saw him before. I
        never saw that guy before no more than just standing out there.

Johnson testified he saw Davison run away.

        On cross-examination, Johnson admitted MarQue's father was "a regular

customer,. . . like every other day," and helped him advertise the business.

Johnson admitted he had "previously been convicted for giving the police false

information."


                                         15
No. 75060-7-1/16

         Jerry Fluker testified that when Lancaster and Grayson began to fight, "I

was just standing back, because I thought they were just going to argue."

                 So we figured they would just dispute it out with their hands,
         they would fight it out, and that would be it, you know, let them fight
         and thought it was nothing to be really taken that serious besides,
         you know, somebody punched [Grayson], so he wanted to basically
         fight back.
                 We let it carry on.. . .[N]othing really too damaging at the
         time.

         Jerry testified that after Grayson and Lancaster stopped fighting,

Lancaster "was still upset" and "talking trash" to Grayson. Jerry said Lancaster

and Grayson were "talking too much" and he "was ready to go by that point."

Jerry told Grayson to get in the car while Mar'Que pushed Lancaster in the

opposite direction. When Jerry heard Lancaster yell at Grayson, "I'll kill you with

my bare hands," Jerry said he "had no choice but to intervene" and got in

between Grayson and Lancaster. Jerry testified that Mar'Que was trying to calm

down Lancaster and said, "[L]et's not go there with this," but Lancaster "didn't

stop."

         When Jerry told Lancaster, "[Y]ou're getting out of hand," Lancaster

punched him. Jerry testified that Lancaster "said something about getting a gun"

and "shoot him."

         [A]s we got into each other's face, ... I didn't see it coming. He
         just punched me dead in my face, punched me, and then he flew
         back, stating like something like signaling to his friend like to get his
         shit or he had said — well, he had said something about getting a
         gun or something before then . . . . But after he punched me, he
         turned to the dude, he was like, shoot, shoot him.. . . To shoot us.

Jerry said, "[M]y brother was like, I'm not playing, and he started firing."




                                            16
No. 75060-7-1/17

       The defense argued Mar'Que was entitled to jury instructions on self-

defense and the lesser included offenses of manslaughter in the first degree and

manslaughter in the second degree. "[I]f you're asserting self-defense, and it's

an imperfect self-defense, say too much force is used," the defendant is entitled

to jury instructions on the lesser included offense of manslaughter. The State

agreed Mar'Que was entitled to a jury instruction on self-defense. The

prosecutor argued that viewing the evidence in the light most favorable to

Mar'Que, the court should instruct the jury on manslaughter in the first degree

"because he said he didn't intend to kill him, and a rational jury could find, I

suppose, under these circumstances that he knew of and disregarded the risk

that a death would occur when he fired his gun at the victim." The State argued

the evidence did not support instructing the jury on manslaughter in the second

degree.

       [C]riminal negligence requires that you — you weren't even aware
       of that risk, and these facts do not support that a rational jury could
       find it, and the four cases that I cited where the Court found that
       entitled to a man[slaughter] 1 but not a man[slaughter]ll, or not
       entitled to either, based on a factual inquiry.

       The court agreed to instruct the jury on self-defense. The jury instruction

on self-defense states:

               It is a defense to a charge of murder or manslaughter that
       the homicide was justifiable as defined in this instruction.
               Homicide is justifiable when committed in the lawful defense
       of the slayer or any person in the slayer's presence or company
       when:
              (1) the slayer reasonably believed that the person slain
       intended to inflict death or great personal injury;
              (2) the slayer reasonably believed that there was imminent
       danger of such harm being accomplished; and



                                          17
No. 75060-7-1/18

             (3) the slayer employed such force and means as a
       reasonably prudent person would use under the same or similar
       conditions as they reasonably appeared to the slayer, taking into
       consideration all the facts and circumstances as they appeared to
       him, at the time of and prior to the incident.
              The State has the burden of proving beyond a reasonable
       doubt that the homicide was not justifiable. If you find that the State
       has not proved the absence of this defense beyond a reasonable
       doubt, it will be your duty to return a verdict of not guilty.

       The court agreed to instruct the jury on manslaughter in the first degree.

But the court ruled the evidence did not support giving an instruction on

manslaughter in the second degree.

       The jury convicted Jerry with felony rendering criminal assistance in the

first degree.2 The jury rejected self-defense and found Mar'Que guilty of the

lesser included offense of manslaughter in the first degree.

               We,the jury, having found the defendant Marque Fluker not
       guilty of the crime of Murder in the Second Degree as charged, or
       being unable to unanimously agree as to that charge, find the
       defendant Guilty. . . of the lesser included crime of Manslaughter in
       the First Degree.

By special verdict, the jury found Mar'Que was armed with a firearm when he

committed the crime.

                                         ANALYSIS

Evidence of Firearm Permit

        Mar'Que contends the trial court violated his constitutional right to present

a defense by excluding evidence that he had a permit to carry a concealed

firearm.



        2 Jerryappeals the conviction of rendering criminal assistance in the first degree. We
address his appeal in the linked case, State v. Jerry Fluker, No. 74859-9-1(Wash. Ct. App. Sept.
4, 2018).


                                               18
No. 75060-7-1/19

       A criminal defendant has a constitutional right to present a defense.

Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019(1967);

State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514(1983). However, the right to

present a defense is not absolute. A criminal defendant "has no constitutional

right to have irrelevant evidence admitted in his or her defense." Hudlow, 99

Wn.2d at 15.

       We review a constitutional claim de novo as a question of law. State v.

Jones, 168 Wn.2d 713, 719, 230 P.3d 576(2010); State v. Jackman, 156 Wn.2d

736, 746, 132 P.3d 136 (2006). We review the decision to admit or exclude

evidence for abuse of discretion. State v. McDonald, 138 Wn.2d 680, 693, 981

P.2d 443(1999); State v. Darden, 145 Wn.2d 612, 619,41 P.3d 1189(2002).

"The trial court has broad discretion regarding the admission or exclusion of

evidence, and the trial court's decision will not be reversed absent a manifest

abuse of discretion." State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354

(2006)(citing State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990), cert.

denied, 498 U.S. 1046, 111 S. Ct. 752, 112 L. Ed. 2d 772(1991)).

       Before trial, the State filed a motion to exclude evidence that Mar'Clue had

a permit to carry a concealed firearm. The State argued whether Mar'Que had a

permit to possess a firearm was not relevant to determining whether he

intentionally shot and killed Lancaster. The State argued:

      [A]ny attempt to introduce such evidence would simply be an
      attempt to portray the defendant in a certain light i.e. as a law-
      abiding citizen who would not commit these crimes As such
      evidence is irrelevant and improper, it should be excluded.

The State moved to exclude the admission of character evidence except


                                        19
No. 75060-7-1/20

reputation testimony under ER 404(a) and ER 405(a).

         The court addressed the motion at the beginning of the trial. The State

argued the "legality of the weapon" is not relevant to self-defense and is

"designed to show that he's a good person, who legally has his gun; and it puts

him in a good light, in an attempt to have the jury make the decision, based on

that."

                It's an implicit way — or, it's an implied way to get that he
         doesn't have any criminal history, or he doesn't have any criminal
         convictions; which I also don't think is admissible.
                This is about the actions that day, in that parking lot.
                So, I do think it's just an attempt to try to slip in his good
         character.

         Defense counsel told the court the evidence "isn't character evidence; it's

legality of possession of the firearm. It goes to the legality of his actions, that we

believe it's admissible."

         The court agreed the evidence was not relevant but expressed concern

about the perceptions of potential jurors.

         I'm inclined to agree with the State that it isn't probative, ordinarily.
         But I'm also mindful of the climate of the community, and the
         concern about lawless gun violence.
                And, although this jury is presumed to follow the Court's
         instructions — especially, in the last, even, year, the issues of gun
         violence and legality of weapons and a tendency to presume that
         people have weapons that they aren't entitled to have — I haven't
         quite resolved it in my mind.
                And I would be happy to hear from counsel, if counsel has
         any other case[ paw that they want to provide to me.

The prosecutor noted the State planned to ask the court to pose general

questions to the jury about firearms. The court reserved ruling until after jury voir

dire.



                                            20
No. 75060-7-1/21

       At the beginning of voir dire, the court asked general questions about

whether any juror had "strong feelings. . . one way or the other" about "the use of

deadly force as it pertains to self-defense," "the use or possession of firearms,"

and "allegations of a shooting." The parties questioned jurors who responded to

the general questions. The jurors expressed different views. The defense did

not exercise all of their peremptory challenges.

       After the jury was selected and sworn to hear the case, the State renewed

the motion to exclude evidence of the concealed firearm permit.

      I wanted to readdress the issue of MarQue Fluker's concealed
      weapons permit. My recollection during the discussion in regarding
      the motions in limine, the Court agreed that it wasn't relevant but
      was concerned about jurors' assumptions they'd make. I think
      through voir dire it's been proven to be quite the opposite. I'm
      renewing our motion to exclude it.

The defense attorney did not disagree with the prosecutor's characterization of

voir dire. The defense attorney argued the court should allow the defense to

introduce evidence that Mar'Que had a permit to carry a firearm.

      The court granted the motion to exclude evidence that MarQue had a

permit to carry a firearm. The court ruled voir dire was "significant in the way that

the State suggests" and the evidence was not relevant.

      I actually was interested, very interested, to listen to the voir dire,
      and I think it was significant in the way that the State suggests it.
      As I indicated before, it isn't relevant, but the concern was that
      there might be assumptions the other way. I was pleasantly
      surprised and pleased to hear how many jurors indicated that they
      could in fact put aside whether it was lawful or not, and I was a little
      bit discouraged to hear that at least one or two jurors said that if —
      that they might actually use the evidence for an improper purpose,
      and that was to suggest that if a person had a lawful gun, they were
      more likely to use it lawfully in self-defense, which obviously



                                         21
No. 75060-7-1/22

       wouldn't be appropriate.
              So I am going to grant the motion to — in limine that there
       not be any evidence of the possession of the permit either way.

       On appeal, Mar'Que does not argue evidence of a permit to carry a

firearm is relevant to either the charge of murder in the second degree, the lesser

included offense of manslaughter, or self-defense. Instead, for the first time on

appeal, Mar'Que claims the absence of the evidence creates an inference of

unlawful possession and the evidence is admissible to show law-abiding

character.

       The record shows Mar'Que did not make these arguments below.

       A party may only assign error in the appellate court on the specific
       ground of the evidentiary objection made at trial. Since the specific
       objection made at trial is not the basis the defendants are arguing
       before this court, they have lost their opportunity for review.

State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182(1985),3 cert. denied, 475

U.S. 1020, 106 S. Ct. 1208, 89 L.Ed.2d 321 (1986).

       Under RAP 2.5(a), "appellate courts will not consider issues raised for the

first time on appeal." State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125

(2007). "However, a claim of error may be raised for the first time on appeal if it

is a manifest error affecting a constitutional right." Kirkman, 159 Wn.2d at 926

(citing RAP 2.5(a)(3)). Mar'Que contends the decision to exclude evidence that

he had a permit to carry a concealed weapon violated his constitutional right to

present a defense.

       Mar'Que cannot show "actual prejudice that makes the error 'manifest,'

allowing appellate review." Kirkman, 159 Wn.2d at 926-27. MarQue's attorney


       3 Citation   omitted.


                                         22
No. 75060-7-1/23

expressly disclaimed any intent to introduce character evidence. The record

shows the defense presented evidence that MarQue lawfully possessed the gun.

During direct examination, Mar'Que testified that he "legally" owned the gun.

       Q      By the way, on this day, did you own a gun?
       A      Yes.
       Q      Did you legally own a gun?
                    [PROSECUTOR]: Objection, your Honor.
                    THE WITNESS: Yeah.
                    THE COURT: Sustained.

The State did not make a motion to strike and instruct the jury to disregard the

testimony. Because the prosecutor did not move to strike, the testimony remains

part of the record for the jury to consider. Swan, 114 Wn.2d at 659(even when

an objection is sustained, if the court does not grant a motion to strike or instruct

the jury to disregard it, the testimony "thus remain[s] in the record for the jury's

consideration.").

Manslaucihter in the Second Degree Jury Instruction

       MarQue contends the court erred by refusing to instruct the jury on

manslaughter in the second degree.

        RCW 10.61.006 states a defendant"may be found guilty of an offense

the commission of which is necessarily included within that with which he or she

is charged in the indictment or information." A defendant is entitled to a jury

instruction on a lesser included offense if(1)each of the elements of the lesser

offense is a necessary element of the charged offense and (2) the evidence in

the case supports an inference that only the lesser crime was committed. State ,

v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382(1978); State v. Fernandez-




                                          23
No. 75060-7-1/24

Medina, 141 Wn.2d 448, 455,6 P.3d 1150 (2000); State v. Henderson, 182

Wn.2d 734, 742, 344 P.3d 1207 (2015).

       There is no dispute the legal prong of the Workman test is met. The

element of manslaughter in the second degree is a necessary element of

intentional murder in the second degree. State v. Berlin, 133 Wn.2d 541, 550-51,

947 P.2d 700(1997); State v. Bowerman, 115 Wn.2d 794, 806, 802 P.2d 116

(1990).

       The factual prong of the Workman test is "more particularized than that

required for other jury instructions." Fernandez-Medina, 141 Wn.2d at 455. In

determining the factual prong of whether the evidence supports an inference that

the lesser crime was committed, we review the evidence in the light most

favorable to the party requesting the instruction. Fernandez-Medina, 141 Wn.2d

at 455-56. The evidence must raise an inference that "only the lesser

included/inferior degree offense was committed to the exclusion of the charged

offense." Fernandez-Medina, 141 Wn.2d at 455;4 Henderson, 182 Wn.2d at 748.

"If a jury could rationally find a defendant guilty of the lesser offense and not the

greater offense, the jury must be instructed on the lesser offense." Henderson,

182 Wn.2d at 736.

     'We review the trial court finding under the factual prong of the Workman

rule that there was no evidence to support giving an instruction on manslaughter

in the second degree for abuse of discretion. Henderson, 182 Wn.2d at 743.

Because the factual prong turns on "whether the evidence presented in the case

supports an inference that only the lesser offense was committed,""'some

       4   Emphasis in original.


                                          24
No. 75060-7-1/25

evidence must be presented which affirmatively establishes the defendant's

theory on the lesser included offense.'" State v. Condon, 182 Wn.2d 307, 316,

343 P.3d 357(2015);5 State v. Perez-Cervantes, 141 Wn.2d 468, 481,6 P.3d

1160(2000)(quoting State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990)).

"Mt is not enough that the jury might disbelieve the evidence pointing to guilt."

Fernandez-Medina, 141 Wn.2d at 456.

       The State charged MarQue with intentional murder in the second degree.

"A person is guilty of murder in the second degree when . . .[w]ith intent to cause

the death of another person but without premeditation, he or she causes the

death of such person." RCW 9A.32.050(1)(a). RCW 9A.08.010(1)(a) defines

"intent"—"A person acts with intent or intentionally when he or she acts with the

objective or purpose to accomplish a result which constitutes a crime."

       The critical difference between the lesser included offense of

manslaughter in the first degree and manslaughter in the second degree is

whether the person is reckless or negligent in causing the death of another.

RCW 9A.32.060(1)(a), .070(1); State v. Gamble, 154 Wn.2d 457, 467, 114 P.3d

646 (2005).

       A person is guilty of manslaughter in the first degree when he "recklessly

causes the death of another person." RCW 9A.32.060(1)(a). A person acts

"recklessly" when he "knows of and disregards a substantial risk" that a homicide

may occur and his "disregard of such substantial risk is a gross deviation from




       5 Emphasis in   original.


                                         25
No. 75060-7-1/26

conduct that a reasonable person would exercise in the same situation." RCW

9A.08.010(1)(c).6

      A person is guilty of manslaughter in the second degree when "with

criminal negligence" he "causes the death of another person." RCW

9A.32.070(1). A person acts with "criminal negligence" when he "fails to be

aware of a substantial risk" that a homicide may occur and his "failure to be

aware of such a substantial risk constitutes a gross deviation from the standard

of care that a reasonable person would exercise in the same situation." RCW

9A.08.010(1)(d).7

      The trial court instructed the jury on manslaughter in the first degree but

refused to instruct the jury on manslaughter in the second degree. The court

ruled the evidence supported giving an instruction for the lesser included crime of

first degree manslaughter but concluded there is no "factual basis to support the

giving of the manslaughter in the second degree."

       Mar'Que contends he was entitled to an instruction on manslaughter in the

second degree because he reasonably believed he was in imminent danger and

needed to act in self-defense but negligently used more force than necessary.

Mar'Que argues escalation of the argument between Lancaster and Grayson and

the threat Lancaster made to "kill us with his bare hands" and to take Mar'Que's

"gun from me and use it" supported instructing the jury on manslaughter in the

second degree. We disagree.




      6   Emphasis added.
       7 Emphasis added.



                                        26
No. 75060-7-1/27

       While the evidence supports finding Mar'Que knew of and disregarded the

substantial risk of homicide when he shot Lancaster, the evidence does not

support finding Mar'Que was unaware of a substantial risk of death.

       No evidence shows Mar'Que was unaware of the risk of death when he

shot Lancaster 8 to 10 times at close range. The undisputed evidence

established Mar'Que pulled the gun from the holster in his pants, intentionally

pointed the gun at Lancaster, and shot him 8 to 10 times at close range.

Mar'Que did not testify he was unaware of the risk of death. Mar'Que testified he

did not fire his gun accidentally. Mar'Que testified he intentionally shot and

intentionally pulled the trigger each time he shot Lancaster with his Ruger 9 mm

semiautomatic gun to "stop him." Mar'Que said he heard Lancaster yell "shoot"

Jerry but Mar'Que testified he knew Lancaster did not have a gun on him.

Mar'Que's testimony that he only wanted to "stop" Lancaster, not kill him, does

not "overcome the presumption that an actor intends the natural and foreseeable

consequences of his conduct." Perez-Cervantes, 141 Wn.2d at 481.

       Mar'Que argues viewing the evidence in the light most favorable to him, a

jury could find he "acted merely negligently in using more force than necessary

against Lancaster in self-defense." Mar'Que contends he did not know whether

Lancaster had a gun and he heard Lancaster order someone to shoot his

brother. Mar'Que cites State v. Schaffer, 135 Wn.2d 355, 957 P.2d 214 (1998),

and State v. Chambers, 197 Wn. App. 96, 387 P.3d 1108 (2016), review denied,

188 Wn.2d 1010, 394 P.3d 1004 (2017), in support of his argument. Neither

Schaffer nor Chambers address the legal distinction between manslaughter in



                                         27
No. 75060-7-1/28

the first degree a'nd manslaughter in the second degree and are factually

distinguishable.

       In Schaffer, the defendant Schaffer testified that after leaving a club, the

victim "threatened to kill him." Schaffer, 135 Wn.2d at 357. When the victim

moved his arm behind his back,"Schaffer thought he was reaching for a gun."

Schaffer, 135 Wn.2d at 357. Schaffer pulled out his gun and shot the victim five

times—twice in the back and three times in the legs. Schaffer, 135 Wn.2d at

357. The State charged Schaffer with premeditated second degree murder.

Schaffer, 135 Wn.2d at 357. The trial court instructed the jury on self-defense

but refused to instruct the jury on manslaughter. Schaffer, 135 Wn.2d at 357.

On appeal, the State conceded there was "sufficient evidence to permit the jury

to find Shaffer acted in the reasonable belief he was in imminent danger."

Schaffer, 135 Wn.2d at 358. The court noted the concession and states the

additional evidence that Schaffer shot the victim five times, including twice in the

back, was sufficient to "support a finding that he recklessly or negligently used

excessive force to repel the danger he perceived. The jury should therefore have

been instructed on manslaughter as a lesser included offense to the first degree

murder alternative." Schaffer, 135 Wn.2d at 358.

       In Chambers, we held the evidence supported the trial court decision to

instruct the jury on the lesser included offense of manslaughter in the first

degree. Chambers, 197 Wn. App. at 122. Because Chambers testified that he

believed the victim Hood was"'going to kill me,'"a jury could reasonably find he

acted recklessly when he fired "the two fatal shots directly into Hood's back after



                                         28
No. 75060-7-1/29

he turned away and could no longer hold the shovel." Chambers, 197 Wn. App.

at 122.

      We affirm the jury conviction of manslaughter in the first degree while

armed with a firearm.




WE CONCUR:




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