                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           June 18, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 49534-1-II

                                Respondent,

        v.
                                                                    consolidated with
 ALEXANDER JABBAAR KITT,

                                Appellant.
 STATE OF WASHINGTON,                                                No. 49555-4-II

                                Respondent,

        v.
                                                                           and
 JERMOHNN ELIJAH NATHANIEL GORE,

                                Appellant.
 STATE OF WASHINGTON,                                                No. 49556-2-II

                                Respondent,

        v.
                                                           PUBLISHED IN PART OPINION
 CLIFFORD JACARE KRENTKOWSKI,

                                Appellant.

       MELNICK, J. — The State alleged that on May 1, 2015, Alexander Kitt, Jermohnn Gore,

Clifford Krentkowski, and three other men initiated a retaliatory drive-by shooting at a rival gang’s

territory in Tacoma. Law enforcement officers concluded their gunfire struck and killed Brandon

Morris, who was unaffiliated with the rival gang but happened to be in the area. Kitt, Gore, and

Krentkowski were jointly tried and convicted of murder in the first degree and four counts of
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assault in the first degree. In addition, Kitt and Gore were convicted of unlawful possession of a

firearm in the first degree, and Gore was convicted of intimidating a witness for threats he made

before the trial.

           In the published portion of this opinion, we reverse Krentkowski’s conviction because his

trial counsel had an actual conflict of interest that affected the representation, and the trial court

erred by not allowing him to withdraw. In the unpublished portion of this opinion, we affirm the

majority of Kitt’s and Gore’s convictions, but remand for the trial court to dismiss their murder in

the second degree convictions with prejudice, conduct a Miller1 hearing for Gore, and strike

specific legal financial obligations (LFOs) for Kitt and Gore.

                                                 FACTS2

I.         INCIDENT3

           Kitt, Gore, and Krentkowski were all members of the Hilltop Crips street gang.

           In the weeks before May 1, LeShaun Alexander, a member of the Knoccout Crips street

gang, shot at some members of the Hilltop Crips, including Krentkowski. On the morning of May

1, Alexander shot at Kitt in the Tacoma Hilltop area outside the home of Trevion Tucker, another

Hilltop Crips member.

           A few minutes after the shooting, Gore called Tucker’s house and said he intended to go

look for the shooters. A group gathered in a white Cadillac Escalade, driven by fellow Hilltop




1
     Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
2
  The following facts provide some background information and relate to the published portion of
this opinion. Additional relevant facts will be related in the unpublished portion.
3
     Witnesses related the following events at trial.


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Crips member Lance Milton-Ausley.            The group included Milton-Ausley, Kitt, Gore,

Krentkowski, and Tucker.

        Kitt brought a backpack that contained two handguns. He kept one and gave the other to

Gore. Kitt said he wanted to shoot Alexander. Krentkowski had an AK-47 semiautomatic assault

rifle. The group planned to shoot at a convenience store, known as the “red store,” in Knoccout

territory where Knoccout members were known to gather. They planned to park somewhere near

the store, get out, and shoot at it. They also planned to take pictures of themselves in Knoccout

territory and post them on social media as a sign of disrespect to the rival gang.

        As the group approached the red store, they noticed Alexander’s car parked nearby.

Milton-Ausley drove into the alley beside the red store. Alexander and several other Knoccout

members were in a group near the store.

        As soon as they pulled into the alley, Gore and Kitt began shooting in the direction of the

store. Each of them fired one of Kitt’s handguns. During the shooting, Milton-Ausley drove

slowly down the alley. He accelerated away when the shooting subsided. Krentkowski had the

assault rifle on his lap but did not shoot. Tucker testified that no one was aiming and none of them

saw anyone get shot; they were “just shooting at the store.” 14 Report of Proceedings (RP) at

2600.

        That same day, Morris and four companions were walking in the alley behind the red store.

A bullet fired from the Escalade struck Morris in the head and he died several days later. Another

bullet struck a backpack worn by one of Morris’s companions, but it did not injure him. None of

the Knoccout members near the store was injured.

        At the time of the shooting, Kitt was 23 years old, Gore was 16 years old, and Krentkowski

was 17 years old.



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       The State charged Kitt, Gore, and Krentkowski each with one count of murder in the first

degree and one count of murder in the second degree for the death of Morris. It also charged each

of them with four counts of assault in the first degree, one for each of Morris’s companions. It

charged Kitt and Gore with unlawful possession of a firearm in the first degree and Gore with

intimidating a witness. The case proceeded to a jury trial.

II.    CONFLICT OF INTEREST

       At the start of trial, Walter Peale, Krentkowski’s lawyer, informed the court about a conflict

of interest. He stated that he had represented Alexander in an unrelated case, in which the court

had granted Peale’s motion to withdraw based on his representation of Krentkowski. Peale argued

that Krentkowski should be advised about the conflict by an independent counsel before the case

could proceed.

       The State argued that there was no actual conflict because Alexander was not involved in

the case other than that his “name may come up.” 1 RP at 10. It explained that it would not be

calling Alexander as a witness, but that the facts involved back-and-forth shootings between the

Hilltop Crips and the Knoccout Crips and that Alexander was a “principal[] on the Knoccoutz

side.” 1 RP at 10.

       The court ruled that no conflict existed that required withdrawal. It stated that, “[i]f they’re

totally unrelated matters, the representation of either Mr. Krentkowski or Mr. Alexander is not

directly adverse to the other client.” 1 RP at 31. The court recognized that a conflict would exist

if there was “a significant risk that the representation of one or more clients will be materially

limited by a lawyer’s responsibility to another client, a former client or a third person or by a

personal interest of the lawyer,” but stated that it would “be surprised that a criminal defense

attorney would have such a conflict” and that, even in that case, the rule allowed representation



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“in certain circumstances.” 1 RP at 31-32. The court said Peale could raise the issue again with

additional citation to authority.

        Several days later, Peale brought a motion to delay jury selection so that he could withdraw

and Krentkowski could be appointed a new attorney or represent himself. Peale’s motion raised

his lack of preparation, his difficulties with the case, and the conflict of interest. The court denied

the motion and stated that it had already ruled on Peale’s motion to withdraw and substitute

counsel. The court engaged in a colloquy with Krentkowski regarding self-representation. After

conferring with Peale, Krentkowski withdrew his request to represent himself.

        Peale raised the conflict of interest issue again the following day, after an independent

counsel had reviewed the situation and opined that Peale had a conflict. The court stated that it

had ruled on the issue and again denied Peale’s motion to withdraw.

        During its opening statement, the State told the jury that the evidence would show that

Alexander had shot at Gore and Krentkowski a few days before the red store shooting. Peale then

argued that the State had made Alexander a part of the case, “creat[ing] a relationship that [was]

entirely different” from how the conflict had previously been explained. 4 RP at 710. He argued

that his client was alleged to be the victim of his former client and that a central part of the State’s

case placed his clients at odds with one another, creating a “much greater risk of violating a variety

of rules of professional responsibility.” 4 RP at 711. Peale moved for a mistrial. The court denied

Peale’s mistrial motion and again denied his motion to withdraw.

        During witness testimony, Peale raised the issue of his alleged conflict of interest two

additional times. The first time, during Milton-Ausley’s testimony, he stated that the case would

require him to ask,

        [W]hat was in the mind of Mr. Alexander? What was his reputation? What was
        his character? What do I know about him that would offer up an explanation in


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       defense of Mr. Krentkowski? And why am I not pursuing that? And the reason I
       can’t pursue it is because he’s a former client.

8 RP at 1471. Peale argued that if evidence about Krentkowski and Alexander’s interactions came

in, he would be unable to respond due to his conflict of interest. The court delayed ruling until

Peale had a chance to interview Tucker about his planned testimony.

       After interviewing Tucker, Peale learned that Tucker intended to testify that Alexander was

armed and present at the red store shooting and may have fired at Krentkowski. Peale suggested

that the court exclude evidence of Alexander’s involvement so he could continue representing

Krentkowski despite the conflict. He argued that, otherwise, Tucker’s testimony would “raise[] a

considerable amount of information about [his] former client that in defense of [his] present client

may be relevant to explore which [he couldn’t] explore,” preventing him from presenting a

defense. 13 RP at 2372. The court denied Peale’s motion.

       At the conclusion of the trial, the jury returned guilty verdicts as to each count against all

three defendants and found that each defendant was armed with a firearm during the commission

of each murder and assault offense. The defendants appeal.

                                           ANALYSIS

       Krentkowski contends that he received ineffective assistance of counsel because the trial

court denied his trial counsel’s motion to withdraw based on a conflict of interest. He argues that,

because an actual conflict of interest existed, we should presume prejudice and reverse his

conviction. We agree.

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

Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984); State v. Grier, 171

Wn.2d 17, 32, 246 P.3d 1260 (2011).


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       We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,

the defendant must show both (1) that defense counsel’s representation was deficient, and (2) that

the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33; State v. Linville,

191 Wn.2d 513, 524, 423 P.3d 842 (2018). Representation is deficient if, after considering all the

circumstances, the performance falls “‘below an objective standard of reasonableness.’” Grier,

171 Wn.2d at 33 (quoting Strickland, 446 U.S. at 688).

       Effective assistance of counsel includes a duty of loyalty and a duty to avoid conflicts of

interest. State v. McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). To establish a Sixth

Amendment violation based on a conflict of interest, “a defendant must demonstrate that an actual

conflict of interest adversely affected his lawyer’s performance.” State v. Regan, 143 Wn. App.

419, 427, 177 P.3d 783 (2008). This requires the defendant to show “both that his attorney had a

conflict of interest and that the conflict adversely affected counsel’s performance.” State v.

Reeder, 181 Wn. App. 897, 909, 330 P.3d 786 (2014). If the defendant meets this two-part test,

prejudice is presumed. Reeder, 181 Wn. App. at 909.

       To show that the conflict adversely affected his lawyer’s performance, the defendant must

show that the conflict either “‘cause[d] some lapse in representation contrary to the defendant’s

interests,’” or “‘likely’ affected particular aspects of counsel’s advocacy on behalf of the

defendant.” Regan, 143 Wn. App. at 428 (quoting State v. Robinson, 79 Wn. App. 386, 395, 902

P.2d 652 (1995) and United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992)). “[T]he

possibility of a conflict [is] not enough to warrant reversal of a conviction.” State v. Dhaliwal, 150

Wn.2d 559, 573, 79 P.3d 432 (2003).




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       We review a trial court’s decision on a motion to substitute counsel for an abuse of

discretion. Reeder, 181 Wn. App. at 908. However, whether the circumstances demonstrate a

conflict under ethical rules is a question of law we review de novo. Regan, 143 Wn. App. at 428.

       “An actual conflict of interest exists when a defense attorney owes duties to a party whose

interests are adverse to those of the defendant.” State v. White, 80 Wn. App. 406, 411-12, 907

P.2d 310 (1995). The matters alleged to be in conflict must be “substantially related.” State v.

MacDonald, 122 Wn. App. 804, 813, 95 P.3d 1248 (2004).

       RPC 1.7(a) provides that a concurrent conflict of interest exists if “the representation of

one client will be directly adverse to another client” or “there is a significant risk that the

representation of one or more clients will be materially limited by the lawyer’s responsibilities to

another client, a former client or a third person or by a personal interest of the lawyer.” RPC 1.9(c)

prohibits a lawyer who has formerly represented a client from “us[ing] information relating to the

representation to the disadvantage of the former client” except as the ethical rules would permit or

require.

       To determine whether an actual conflict exists, the trial court should perform a three-prong

factual inquiry:

       “First, the court reconstructs the scope of the facts involved in the former
       representation and projects the scope of the facts that will be involved in the second
       representation. Second, the court assumes that the lawyer obtained confidential
       client information about all facts within the scope of the former representation.
       Third, the court then determines whether any factual matter in the former
       representation is so similar to any material factual matter in the latter representation
       that a lawyer would consider it useful in advancing the interests of the client in the
       latter representation.”

MacDonald, 122 Wn. App. at 813 (quoting State v. Hunsaker, 74 Wn. App. 38, 44, 873 P.2d 540

(1994)).




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       In White, the defendant’s lawyer had been appointed to represent a codefendant earlier in

the case. 80 Wn. App. at 408-09. He reviewed the first client’s file and police reports and

recommended to the first client’s relative that the first client should consider a guilty plea, but he

never met with the first client. White, 80 Wn. App. at 408-09. Eleven days after his appointment,

the lawyer was replaced. White, 80 Wn. App. at 409. Two weeks later, the court appointed the

lawyer to represent White. White, 80 Wn. App. at 409. Neither party raised the conflict issue until

after trial, when the lawyer noted in an affidavit that the police report from White’s case had

“seemed familiar” but he had not realized he had represented two codefendants until after it was

brought to his attention. White, 80 Wn. App. at 409.

       White concluded that the attorney had not “‘actively’ represented conflicting interests”

because he “never directly communicated with [the codefendant]” and was not “privy to any

confidences that could create an active conflict of interest.” 80 Wn. App. at 412. There was

“nothing in the record to support White’s allegation that Appointed Counsel’s allegiance to him

was impaired.” White, 80 Wn. App. at 412.

       In MacDonald, the trial court disqualified the defendant’s chosen defense lawyer because

of a conflict of interest. 122 Wn. App. at 812. The disqualified lawyer had represented the victim’s

mother in an unrelated marital dissolution case. MacDonald, 122 Wn. App. at 812. Although the

matters were completely unrelated, the court assumed the lawyer had received confidential

information about the victim in the course of representing her mother. MacDonald, 122 Wn. App.

at 813-14. This information “was relevant to [the victim’s] credibility and, potentially, her current

rape accusation.” MacDonald, 122 Wn. App. at 814. Because the marital dissolution action

“would have necessitated receiving information about” the victim, and her testimony was “the sole




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evidence against” the defendant, a conflict existed and the lawyer could not represent the

defendant. MacDonald, 122 Wn. App. at 814.

       In Dhaliwal, the defendant’s lawyer had represented several witnesses who testified at trial.

150 Wn.2d at 564. The representation of the witnesses occurred both prior to and during the

defendant’s case. Dhaliwal, 150 Wn.2d at 564-65. The trial court asked the lawyer about his

representation of the witnesses and the lawyer said there was no conflict. Dhaliwal, 150 Wn.2d at

565. Dhaliwal never objected and he said he wanted the lawyer to continue representing him.

Dhaliwal, 150 Wn.2d at 565. The other representation involved a shareholder action which may

have been related to the motive for the murder at issue in the case. Dhaliwal, 150 Wn.2d at 572.

       Dhaliwal focused on the lawyer’s actual performance at trial and concluded that Dhaliwal

showed “the possibility that his attorney was representing conflicting interests,” but “failed to

establish an actual conflict because he ha[d] not shown how [his lawyer’s] concurrent

representation of the witnesses . . . affected [his] performance at trial.” 150 Wn.2d at 573.

Dhaliwal did not show a “strong possibility that a conflict of interest had an effect on [his lawyer’s]

performance.” Dhaliwal, 150 Wn.2d at 574.

       In this case, Peale repeatedly raised a conflict of interest based on his representation of a

rival gang member. Trial testimony established that Alexander had shot at Kitt the morning of the

shooting and had shot at Krentkowski a few weeks prior. Alexander was one of the intended

targets of the red store shooting. Peale said that the State’s case raised a considerable amount of

information about Alexander that may be relevant to his defense of Krentkowski, but that he could

not explore this information because of his ongoing duty to Alexander.

       We accept Peale’s representations that he learned confidential information in his

representation of Alexander that he could not use to defend Krentkowski. Although Peale no



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longer represented Alexander at the time of trial, RPC 1.9(c)(1) prohibited him from using any

confidential information he had obtained in his representation of Krentkowski. Peale raised

numerous issues that could have been helpful to his defense of Krentkowski that he could not

explore due to his ongoing duty to Alexander, such as Alexander’s reputation and character and

his relationship to Krentkowski. He was unable to pursue a defense relying on this information

because Alexander was his former client.

       This case bears similarities to Dhaliwal, where the attorney represented numerous

witnesses in the case. However, unlike in Dhaliwal, Peale raised the conflict numerous times

before the trial court, repeatedly claiming that an actual conflict existed. Additionally, an

independent counsel spoke with Krentkowski and concluded that Peale had a conflict of interest.

       Peale had an actual conflict of interest that affected his defense of Krentkowski. He

repeatedly informed the trial court of this conflict and stated that the conflict would limit his

representation of Krentkowski throughout the trial. We conclude that Krentkowski received

ineffective assistance of counsel. In so ruling, we are mindful that the lawyer made numerous

motions to withdraw due to the conflict, and the court denied all of them. Although Krentkowski

couches his argument as ineffective assistance of counsel, the true error is in the court’s failure to

grant the motions to withdraw. We reverse Krentkowski’s convictions.

       A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

pursuant to RCW 2.06.040, it is so ordered.




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                                        ADDITIONAL FACTS

I.        WITNESS INTIMIDATION

          The same juvenile detention facility housed Gore and Tucker pending trial. A no-contact

order prevented Gore from being near Tucker’s cell.

          Before trial, Gore sent Tucker a note that said, “Please don’t snitch. Take your statement

back or were [sic] gonna kill your family.” Clerk’s Papers (CP) at 40. The court admitted the note

into evidence and the jury saw it. Immediately after admitting the note, the court read a limiting

instruction to the jury that said,

          [E]vidence of an alleged threat allegedly made by Defendant Jermohnn Gore, . . .
          [is] being admitted for a limited purpose. Any evidence related to this alleged threat
          may only be considered by you as evidence against Jermohnn Gore and may not be
          used as evidence against any other defendants, including Alexander Kitt and
          Clifford Krentkowski.

12 RP at 2301.

II.       JOINDER

          The State moved to join Kitt, Gore, Krentkowski, and two other defendants’ cases for trial.

None of the defendants objected to joinder. The court joined the cases.

          At the start of trial, the State filed an amended information, charging Gore with the

additional crime of intimidating a witness based on the note he sent to Tucker. Kitt moved for

severance in light of the witness intimidation charges against Gore. He argued that the jury would

interpret the note’s reference to “we” to mean all of the defendants, not just Gore.

          The parties and the trial court addressed the motion as a Bruton4 issue, concerning the

admissibility of out-of-court statements by non-testifying codefendants. The State contended that




4
     Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).


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Bruton did not apply and that, to the extent the note prejudiced Kitt, it could be remedied by a

limiting instruction which the court ultimately gave.

          The court ruled that the note was not a “testimonial statement” or “confession” by Gore

that implicated either of the other two defendants. It stated that the issue could be dealt with “by

use of a limiting instruction that specifically limit[ed] the use of th[e] note for the purpose of Mr.

Gore’s state of mind” and for the intimidating a witness charge. 2 RP at 252.

          At the conclusion of the witness intimidation evidence against Gore, Kitt renewed his

motion to sever and the court again denied it.

III.      SUPPRESSION MOTION

          Four days after the shooting, Kitt had a scheduled appointment with his probation officer.

Kitt arrived at his appointment in a Cadillac DeVille driven by Gore’s father, Jermaine Gore. Gore

and another man also occupied the DeVille. The police were waiting for Kitt at the appointment

location and arrested him.

          The police approached the DeVille, questioned its occupants, and ultimately arrested all of

them and impounded the DeVille.5 The record is unclear as to whether police performed a Terry6

stop of the vehicle or approached the occupants for voluntary questioning. The record does not

clarify on what basis police approached the DeVille, nor whether they had reasonable suspicion or

probable cause of any crime involving the DeVille. Three days after impounding the DeVille,




5
  Kitt alleged in an evidence suppression motion that “[w]hen [he] arrived and exited the vehicle
he was immediately arrested as were the passengers and the [vehicle].” CP at 151. Per testimony
at trial, Kitt had left the vehicle and entered the building for his appointment before police
approached the DeVille.
6
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).


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police acquired a search warrant for it based largely on information obtained from questioning

Gore. The police searched the DeVille and found the guns used in the shooting.

       Kitt moved to suppress the seized evidence and Gore and Krentkowski joined his motion.

Kitt argued that, because the police did not have probable cause to arrest him on May 5, the items

seized from the DeVille in the execution of the warrant must be suppressed. He argued that all

evidence seized from the DeVille was fruit of the original unlawful arrest.

       The court questioned the relationship between the allegedly unlawful arrest of Kitt and the

search of the DeVille and stated they were “two totally different things.” 2 RP at 274. Kitt

responded that they were related because the police were looking for him and seized the DeVille

as part of his arrest. Kitt claimed that his unlawful arrest led to the seizure, the issuance of the

warrant, and the search of the DeVille.

       The court denied the suppression motion, but allowed Kitt to provide additional authority

and explain the connection between Kitt’s arrest and the evidence seized pursuant to the warrant.

The court declined to hold an evidentiary hearing and ordered the State to prepare a written order

setting forth its reasons for doing so. Our record on appeal contains no such order.

       In supplemental briefing before the trial court, Kitt did not draw any connection between

Kitt’s allegedly unlawful arrest and the issuance and execution of the warrant for the DeVille.

Rather, Kitt argued that no probable cause existed for his arrest or for seizure of the DeVille and

claimed that, therefore, the evidence later seized pursuant to the warrant must be suppressed. He

argued all evidence seized from the DeVille was fruit of the poisonous tree.

       The court again denied Kitt’s motion, concluding that, even if probable cause did not exist

to arrest Kitt, there was no causal relationship between his arrest and the execution of the warrant




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to search the DeVille three days later. It declined to order an evidentiary hearing and did not enter

any written order regarding this ruling.

IV.    GANG-AFFILIATION EVIDENCE

       The defendants moved to exclude “other bad acts” evidence under ER 404(b), including

evidence of their gang affiliation.

       The trial court utilized the four-part test for determining admissibility of ER 404(b)

evidence. It found that the gang evidence had been established by a preponderance of the evidence,

was clearly relevant to prove a motive for the shooting, and explained why the shooting happened.

The court found the evidence explained “why all of those particular people were in that specific

car at the time that the shooting took place.” 2 RP at 226. It concluded the evidence was “clearly

more probative than prejudicial” and allowed its admission. 2 RP at 226.

V.     UNLAWFUL FIREARM POSSESSION EVIDENCE

       When trial began, the court permitted the State to amend the information to add one count

of unlawful possession of a firearm in the first degree and one count of intimidating a witness

against Gore. Gore asked which firearm he was alleged to have possessed, and the State

responded,

       I think counsel is aware that there is evidence that a .40 caliber semiautomatic pistol
       and a 9mm semiautomatic pistol were used in this event, and there’s evidence that
       an assault rifle was possessed by individuals in the car during the course of this
       event, so it would be any one of those three firearms.

2 RP at 264.

       At trial, the State presented evidence that two handguns and an assault rifle were in the

Escalade at the time of the shooting. Kitt provided Gore one handgun and kept another for himself,

and they each fired out of the car as they drove past the red store. Krentkowski had the assault

rifle on his lap, but he did not fire it. A witness testified that he had seen Gore with the assault


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rifle in the past. Milton-Ausley testified that, when he picked up Gore and Krentkowski, Gore had

a guitar bag containing the assault rifle.

       The State also presented evidence that, when it executed the search warrant on the DeVille,

it recovered a guitar case containing a semiautomatic rifle and three handguns, two of which were

in a backpack. The rifle and the two handguns in the backpack were identical to the types used in

the shooting.

       In closing arguments, the State argued that the defendants collectively “had their guns

ready, two firearms in a backpack, an AK-47 . . . in a guitar case.” 18 RP at 3506. The State

emphasized that Gore “had the AK-47. It is not just, [o]h, Mr. Gore walks around town with an

AK-47. . . . It was in a car, in a Cadillac DeVille with his father Jermaine, Sr. with two other

firearms with a backpack a few days after the incident. The AK was in there. The AK was brought

into the Cadillac Escalade that morning for a purpose.” 19 RP at 3661.

VI.    EYEWITNESS EVIDENCE

       Defense witness Amber Fetcher was in her home near the red store and heard two gunshots

near the time of the shooting. She looked out her window and saw “a blue Corsica with a young

black male hanging out the passenger side window with a gun in his hand” and then heard seven

or eight more gunshots. 17 RP at 3235. She said she did not see any other vehicles or persons

with weapons. She heard many gunshots, but did not see the person in the Corsica fire his weapon.

She could not tell if anyone was firing from the alley.

       Fetcher was unable to identify whether a vehicle in security camera footage was the vehicle

she described. She said the Corsica did not enter the alley that the Escalade was alleged to have

shot from, but was near the corner where the alley met the street.




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       Morris’s four companions each testified and described the shooter’s vehicle. Three of them

described it as a white sport utility vehicle (SUV). Another described it as an SUV that he at first

thought was white, then “tan-ish silver-ish gold.”        7 RP at 1265.       Numerous additional

eyewitnesses identified the shooters’ vehicle as a white SUV.

       Security camera evidence showed a white SUV drive down the alley. Forty seconds later,

the same camera showed a blue sedan drive past the alley without turning down it. Another

security camera video showed two Knoccout members near the red store possibly holding weapons

immediately after the shooting.

       One of Morris’s companions testified that he heard a single shot before the rapid fire shots

began. He testified he did not know where it came from.

       Tucker testified that he saw Alexander and other Knoccout members near the red store, but

did not see guns in their hands and did not see any of them pull out a gun. Milton-Ausley and

Tucker both testified that Gore and Kitt immediately began shooting as soon as they pulled into

the alley. Tucker had told police in an interview that he saw Alexander holding a gun but did not

believe he fired it. Tucker testified that the Knoccout members near the store did not shoot at their

car.

VII.   JURY INSTRUCTIONS

       Kitt proposed a self-defense jury instruction, arguing that the Knoccout members near the

store had fired first and any shots the defendants fired were in self-defense. His proposed

instruction mimicked WPIC 16.02:7

              It is a defense to a charge of murder and/or manslaughter that the homicide
       was justifiable as defined in this instruction.


7
 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 16.02, at
234 (3d ed. 2008).


                                                 17
49534-1-II / 49555-4-II / 49556-2-II


               Homicide is justifiable when committed in the lawful defense of the slayer
       or another in the slayer’s presence or company when:
               1) the slayer reasonably believed that the person slain or others whom the
               defendant reasonably believed were acting in concert with the person slain
               intended to commit a felony to inflict death or great personal injury;
               2) the slayer reasonably believed that there was imminent danger of such
               harm being accomplished; and
               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 or her, 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.

CP at 242.

       The court stated that the “the only evidence in this entire case that I heard that even comes

remotely close” to showing self-defense was Fetcher’s testimony that she heard two shots, then

saw a blue Corsica driving by the alley with a young black male with a gun hanging out of it. 17

RP at 3462. It noted that this happened “a considerable period of time after the white SUV had

already driven down the alley” and that other testimony suggested that “the first couple of shots

hit the ground and the dirt flew up” when the SUV first entered the alley. 17 RP at 3462.

       The court ruled:

       I will not be giving an instruction on self defense. First, it is illogical to require the
       State to prove the absence of self defense beyond a reasonable doubt but not give
       the State notice of such a defense until the end of the fourth week of trial. Second,
       there is no credible evidence that the occupants of the Cadillac Escalade reasonably
       believed that Brandon Morris, or anyone whom the defendants reasonably believed
       were acting in concert with Brandon Morris, intended to inflict death or great
       personal injury.

CP at 256.

       No party proposed a unanimity instruction requiring the jury to ensure its verdict was

unanimous as to which gun Gore or Kitt possessed for the unlawful possession of a firearm charge.



                                                  18
49534-1-II / 49555-4-II / 49556-2-II


VIII.   JUROR

        After trial, the court presented each juror with a certificate of appreciation. Juror 11 noticed

that the middle initial was incorrect and realized that the summons for jury duty he had received

had been intended for his son. They shared a first and last name. The jury summons included a

first and last name, but did not include a middle initial. Juror 11’s son lived with him at some

point, but at the time of the end of trial, his son had moved to California. The record is unclear as

to whether the son lived with Juror 11 at the time Juror 11 received the summons.

        Kitt moved for a new trial on the basis of an unconstitutional volunteer juror. Gore and

Krentkowski joined in Kitt’s motion. After a fact-finding hearing, the trial court found that Juror

11 received a summons and had no reason to believe it was not intended for him, as the summons

did not include a middle initial. It stated that Juror 11 was “certainly inquired of during the voir

dire process” and “otherwise qualifie[d] to be a juror.” RP (sentencing) at 103. The court

concluded there had not been any juror misconduct and, if there had been, that it would not have

changed the outcome. It denied the motion for a new trial.

IX.     SENTENCE

        The court dismissed the guilty verdicts for murder in the second degree as to each defendant

without prejudice, citing double jeopardy concerns. At sentencing, Kitt objected to this action and

requested that these counts be dismissed with prejudice. The court noted the objection but did not

respond to it.

        A.       KITT

        The court sentenced Kitt to a standard-range sentence of 338 months for the murder, 93

months on each assault, and 77 months for unlawful possession of a firearm. It additionally

sentenced him to 60 months on each firearm enhancement. The court ordered that each of the



                                                  19
49534-1-II / 49555-4-II / 49556-2-II


murder and assault counts, as well as their firearm enhancements, would run consecutively for a

total sentence of 1,010 months.

         The court found Kitt indigent, waived discretionary fines and costs, and imposed a $500

crime victim assessment, a $200 criminal filing fee, and a $100 DNA (Deoxyribonucleic acid)

collection fee.

         Kitt was 23 years old at the time of the murder and the court did not discuss or address his

youthfulness.

         B.       GORE

         Gore was 16 years old at the time of the murder. Gore raised his youthfulness as a factor

to be considered in his sentence and requested that “the juvenile mind development” be taken into

consideration. RP (sentencing) at 162. He did not specifically request a downward departure on

that basis. The State cited Miller v. Alabama8 and the Miller-fix9 statute and stated that Gore

would be eligible for early release in 20 years, regardless of the sentence the court imposed.

         The court noted that criminal sentences for juveniles are more intended to “hopefully

reform people” but stated that “there’s a reason why we decline youth at a certain age with a certain

charge and treat them as adults despite the whole issue with the lack of full brain development.”

RP (sentencing) at 169. It stated that it did not see Gore’s youthfulness as a basis to differentiate

Gore from Kitt and imposed an equivalent sentence, taking into account the differences in Kitt’s

and Gore’s criminal histories and standard ranges.

         The court sentenced Gore to a standard-range sentence of 312 months for the murder, 93

months for each assault, 77 months for the unlawful possession of a firearm, and 67 months for


8
    567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
9
    RCW 10.95.030.


                                                 20
49534-1-II / 49555-4-II / 49556-2-II


intimidating a witness. It ran the murder and assault sentences consecutive and consecutive to the

five 60-month firearm enhancements for a total sentence of 984 months.

       The court found that Gore was indigent and waived discretionary costs, but assessed a $500

victim assessment, a $200 criminal filing fee, and a $100 DNA collection fee.

                                          ANALYSIS10

I.     SUFFICIENCY OF EVIDENCE – ASSAULT

       The defendants contend that the State failed to prove beyond a reasonable doubt that they

intended to cause anyone great bodily harm. They claim that sufficient evidence does not support

the four convictions of assault in the first degree. We disagree.

       To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the State and determine whether any rational fact finder could have

found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,

210 P.3d 1007 (2009). In claiming insufficient evidence, “the defendant necessarily admits the

truth of the State’s evidence and all reasonable inferences that can be drawn from it.” State v.

Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the

State and interpreted most strongly against the defendant.’” State v. Homan, 181 Wn.2d 102, 106,

330 P.3d 182 (2014) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).

       To convict the defendants of assault in the first degree, the jury had to find beyond a

reasonable doubt:

             (1) That on or about May 1, 2015, defendant [individual defendant] or an
       accomplice assaulted [victim];
             (2) That the assault was committed with a firearm;

10
  We reversed Krentkowski’s conviction in the published portion of this opinion, but must still
decide whether sufficient evidence supports his conviction. The unpublished portion of our
analysis applies primarily to Kitt and Gore, but the sufficiency of the evidence analysis applies to
Krentkowski as well.


                                                21
49534-1-II / 49555-4-II / 49556-2-II


                   (3) That defendant [individual defendant] or an accomplice acted with intent
          to inflict great bodily harm; and
                   (4) That this act occurred in the State of Washington.

CP at 334-45; RCW 9A.36.011. The State charged each defendant with four counts of assault in

the first degree, one for each of Morris’s companions. The defendants contend that the State failed

to present sufficient evidence as to the third element, that they “acted with intent to inflict great

bodily harm.”

          “Assault in the first degree requires a specific intent; but it does not, under all

circumstances, require that the specific intent match a specific victim.” State v. Wilson, 125 Wn.2d

212, 218, 883 P.2d 320 (1994). Once intent to inflict great bodily harm is established, the mens

rea may be transferred to any unintended victim. State v. Elmi, 166 Wn.2d 209, 218, 207 P.3d 439

(2009).

          The evidence showed that the defendants traveled to the red store with the intent to either

disrespect their rival gang by taking pictures of their territory, or to shoot at them in retaliation for

other recent shootings. It further showed that Kitt and Gore both fired handguns repeatedly toward

the red store and a group of rival gang members as Milton-Ausley drove past. Krentkowski sat in

the car with an assault rifle on his lap and took part in planning the assault.

          A fellow gang member who was with the defendants at the time of the shooting testified

that they were looking for the car that had shot at them that morning to “shoot at them” because

“they keep shooting at us.” 13 RP at 2440. The same person also testified that they shot at the

store without aiming. Another gang member testified that Kitt said he wanted to shoot Alexander.

          In a sufficiency of evidence challenge, we draw all reasonable inferences in favor of the

State. Where the State produced evidence that the defendants planned to shoot at their gang rivals

and did shoot at them as they drove past, a reasonable juror could infer that the defendants intended



                                                   22
49534-1-II / 49555-4-II / 49556-2-II


to inflict great bodily harm. This intent to inflict great bodily harm may then be transferred to the

victims. Sufficient evidence supports the convictions for assault in the first degree.

II.    GANG AFFILIATION EVIDENCE

       The defendants contend that the trial court erred by admitting evidence of their gang

affiliation. They claim that the trial court abused its discretion by admitting the evidence in this

case because the State failed to show a nexus between the gang evidence and the crime. We

disagree.

       ER 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident.

“If the evidence is admissible for one of these purposes, a trial judge must determine whether the

danger of undue prejudice from its admission outweighs the probative value of the evidence.”

State v. Jackson, 102 Wn.2d 689, 693, 689 P.3d 76 (1984).

       We review a “trial court’s decision to admit or deny evidence of a defendant’s past crimes

or bad acts under ER 404(b) for an abuse of discretion.” State v. Fuller, 169 Wn. App. 797, 828,

282 P.3d 126 (2012). “A trial court abuses its discretion by not following the requirements of ER

404(b) in admitting evidence of a defendant’s prior convictions or past acts.” Fuller, 169 Wn.

App. at 828. A trial court also abuses its discretion if its decision is manifestly unreasonable,

meaning it falls outside the range of acceptable choices, given the facts and the applicable legal

standard, its decision is based on untenable grounds, meaning its factual findings are unsupported

by the record, or its decision is ‘based on untenable reasons, meaning it applied an incorrect legal

standard. State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013).




                                                 23
49534-1-II / 49555-4-II / 49556-2-II


        When a trial court admits evidence under ER 404(b), it must “‘(1) find by a preponderance

of the evidence the misconduct actually occurred, (2) identify the purpose of admitting the

evidence, (3) determine the relevance of the evidence to prove an element of the crime, and (4)

weigh the probative value against the prejudicial effect of the evidence.’” Fuller, 169 Wn. App.

at 828-29 (quoting State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009)).

        “Like membership in a church, social club, or community organization, affiliation with a

gang is protected by our First Amendment right of association. Therefore, evidence of criminal

street gang affiliation is not admissible in a criminal trial when it merely reflects a person’s beliefs

or associations.” State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009) (internal citation

omitted). “There must be a connection between the crime and the organization before the evidence

becomes relevant.” Scott, 151 Wn. App. at 526.

        However, “[c]ourts have regularly admitted gang affiliation evidence to establish the

motive for a crime or to show that defendants were acting in concert.” Scott, 151 Wn. App. at 527.

When there is a “connection between the gang’s purposes or values and the offense committed,”

the evidence is admissible, whereas “when there [is] no connection between a defendant’s gang

affiliation and the charged offense,” admission of gang evidence is prejudicial error. Scott, 151

Wn. App. at 527.

        In this case, the trial court stated the evidence was relevant “for purposes of motive, why

this happened, and why all of those particular people were in that specific car at the time that the

shooting took place.” 2 RP at 226. The court balanced on the record the prejudicial effect of the

evidence against its probative value, and ruled that it was clearly more probative than prejudicial.




                                                  24
49534-1-II / 49555-4-II / 49556-2-II


       The evidence showed that Alexander, a Knoccout, shot at Kitt, Krentkowski, Tucker, and

other Hilltop Crips multiple times in the weeks leading up to the crime. The defendants traveled

to the red store, located in Knoccout territory, to either shoot at them or take pictures of their

territory as a sign of disrespect. Kitt and Gore began shooting at the red store when they saw

Alexander’s car parked there and Alexander and other Knoccout members outside the store.

       The gang affiliation evidence was relevant to explain the motive for the shooting, the

rivalry between the defendants and their intended targets, and the facts that led up to the shooting.

The evidence in this case demonstrated a “connection between the gang’s purposes or values and

the offense committed.” Scott, 151 Wn. App. at 527. The trial court did not abuse its discretion

by concluding that the gang affiliation evidence was more probative than prejudicial in this case.

III.   JUROR

       The defendants contend that the court’s seating of Juror 11, who had responded to his son’s

summons for jury duty, created a “volunteer juror” which destroyed the randomness of the jury

selection process in violation of Washington’s jury selection statute. Br. of Appellant (Kitt) at 23.

They claim that, because the error in this case created a “material departure” from Washington’s

juror selection statute, prejudice should be presumed and their convictions should be overturned.

Br. of Appellant (Kitt) at 28. We disagree.

       “The purpose of article I, section 22 of the Washington State Constitution is to guarantee

a fair and random selection of jurors from the county in which a crime is alleged to have been

committed.” City of Tukwila v. Garrett, 165 Wn.2d 152, 155, 196 P.3d 681 (2008). RCW

2.36.080(1) provides that “all persons selected for jury service be selected at random from a fair

cross section of the population of the area served by the court.” “A randomly selected jury is a




                                                 25
49534-1-II / 49555-4-II / 49556-2-II


right provided by statute and is based on the Legislature’s policy of providing an impartial jury.”

State v. Tingdale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991).

        A person is competent to be a juror in Washington unless he or she (1) is less than eighteen

years old, (2) is not a citizen of the United States, (3) is not a resident of the county, (4) is unable

to communicate in English, or (5) has been convicted of a felony and not had civil rights restored.

RCW 2.36.070.

        The statutory requirements for making jury lists are “merely directory and need be only

substantially complied with.” Garrett, 165 Wn.2d at 159. “As long as the method chosen

preserves the element of chance in selection of the panel, it has been found to be proper.” Tingdale,

117 Wn.2d at 600. Where the trial court substantially complies with the applicable statutes, the

defendant must show prejudice. Tingdale, 117 Wn.2d at 600. However, if the trial court materially

departs from the statutes, prejudice is presumed. Tingdale, 117 Wn.2d at 600.

        The trial court may grant a new trial on the basis of “[m]isconduct of the prosecution or

jury” or “[i]rregularity in the proceedings of the court, jury or prosecution.” CrR 7.5(a). We

review a trial court’s ruling on a motion for a new trial based on juror misconduct for an abuse of

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

        In this case, Juror 11 responded to a jury summons intended for his son, with whom he had

recently lived. They shared a first and last name. The jury summons did not include a middle

initial, preventing Juror 11 from knowing to whom the summons was directed. Juror 11 realized

that the summons had been intended for his son only after the trial, when the court provided him

with a certificate of appreciation that included a middle initial.




                                                  26
49534-1-II / 49555-4-II / 49556-2-II


        The trial court found that Juror 11 had “no reason to believe” that the summons was not

directed to him. RP (sentencing) at 103. Juror 11 was “inquired of during the voir dire process”

and was “otherwise qualifie[d] to be a juror.” RP (sentencing) at 103. The court ruled that Juror

11 had not committed juror misconduct and that it saw no reason to set aside the jury verdict and

grant a new trial.

        Kitt characterizes Juror 11 as a “volunteer juror” which is prohibited by RCW 2.36.080’s

requirement that jurors be selected randomly. However, Juror 11 did not “volunteer” to sit on the

jury; he believed he was responding to a jury summons. Under the circumstances of this case, that

belief was reasonable. The court sent the summons to his address. No further identifying

information other than a first and last name appeared on the summons. Additionally, nobody

questioned Juror 11’s competency to sit as a juror under RCW 2.36.070. Nothing suggests Juror

11 committed any misconduct, or that the County erred in following procedures for assembling a

valid jury pool. The procedures in this case “preserve[d] the element of chance in selection of the

panel.” Tingdale, 117 Wn.2d at 600. The trial court did not abuse its discretion by denying a new

trial on this issue.

IV.     VEHICLE SEIZURE

        The defendants contend that police did not have probable cause to seize the DeVille in

which Kitt arrived for his probation appointment four days after the shooting. They claim that,

because police lacked probable cause for the seizure, all evidence taken from the DeVille should

have been suppressed. They also contend that the trial court erred by failing to hold an evidentiary




                                                27
49534-1-II / 49555-4-II / 49556-2-II


hearing on this issue and failing to explain its reasons for not holding an evidentiary hearing in

writing. Given the inadequacies in the record, we are unable to effectively review this issue. 11

       When a trial court receives a motion to suppress evidence, it must determine whether an

evidentiary hearing is required. CrR 3.6(a). If it determines that no evidentiary hearing is required,

it must “enter a written order setting forth its reasons.” CrR 3.6(a).

       If law enforcement has probable cause to search a vehicle, it may seize it and deny access

to it for a reasonable time while obtaining a search warrant. State v. Campbell, 166 Wn. App. 464,

472, 272 P.3d 859 (2011). To seize a vehicle under this exception, police must “have probable

cause to believe it contains contraband or evidence of a crime.” State v. Houser, 95 Wn.2d 143,

149, 622 P.2d 1218 (1980).

       Kitt moved to suppress evidence stemming from his allegedly unlawful arrest. His

arguments focused on whether probable cause supported his arrest and he did not explain the

connection between that arrest and the seizure of the DeVille.12

       The trial court did not hold an evidentiary hearing because it believed it could deny Kitt’s

suppression motion on a purely legal issue. It concluded that any evidence seized from the DeVille

was seized pursuant to a valid and unchallenged warrant because the defense had not shown any

connection between Kitt’s arrest and the issuance of the warrant. Any deficiencies in the probable

cause for Kitt’s arrest were unrelated to evidence seized from the DeVille pursuant to the

unchallenged warrant.


11
  Because review of this issue would necessitate consideration of facts outside the record, the
appropriate means of review would be through a personal restraint petition. State v. McFarland,
127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
12
  Kitt argued that the DeVille’s seizure was incident to Kitt’s unlawful arrest, but this argument
appears factually inaccurate because Kitt was neither near the DeVille when he was arrested nor
when police first approached the DeVille.


                                                 28
49534-1-II / 49555-4-II / 49556-2-II


       Now, on appeal, Gore’s suppression arguments focus exclusively on an alleged stop and

subsequent impoundment of the DeVille prior to police obtaining the search warrant. Without an

evidentiary hearing or written order, the record is insufficient for us to determine the legality of

the officers’ interaction with the DeVille and its occupants.        The record contains no facts

explaining what led police to approach the DeVille, or on what basis they had it impounded

pending the search warrant. The record does not contain these facts because the theory of

suppression argued on appeal is distinctly different from the one argued at trial.

       The trial court in this case erred by failing to enter a written order stating its reasons for

denying an evidentiary hearing. We are unable to review the present issue because the parties did

not argue it below and the record provides no detail about the officers’ bases for the initial stop or

impoundment of the DeVille.

V.     UNANIMOUS JURY VERDICT

       Gore contends that his right to a unanimous jury verdict was violated as to his unlawful

possession of a firearm conviction. He claims that the State presented evidence that he possessed

multiple firearms and the court did not provide a unanimity instruction, such that different jurors

could have voted to convict based on Gore’s possession of different firearms.13 We disagree.

       “In Washington, a defendant may be convicted only when a unanimous jury concludes that

the criminal act charged in the information has been committed.” State v. Petrich, 101 Wn.2d 566,

569, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403,

756 P.2d 105 (1988), abrogated in part on other grounds by In re Pers. Restraint of Stockwell,

179 Wn.2d 588, 316 P.3d 1007 (2014). “When the evidence indicates that several distinct criminal



13
  Kitt adopts this argument as well. However, Gore’s arguments on this issue are factually specific
to him and make little sense as applied to Kitt. We address this argument as to Gore only.


                                                 29
49534-1-II / 49555-4-II / 49556-2-II


acts have been committed, but [the] defendant is charged with only one count of criminal conduct,

jury unanimity must be protected.” Petrich, 101 Wn.2d at 572. In order to protect jury unanimity,

the State must either identify one specific act it intends to rely on as the crime charged, or the court

must give the jury a Petrich instruction, “explaining that all ‘12 jurors must agree that the same

underlying criminal act has been proved beyond a reasonable doubt.’” State v. McNearney, 193

Wn. App. 136, 140, 373 P.3d 265 (2016) (quoting Petrich, 101 Wn.2d at 572). “‘[F]ailure to

follow one of these options is error, violative of a defendant’s state constitutional right to a

unanimous jury verdict and United States constitutional right to a jury trial.’” McNearney, 193

Wn. App. at 140-41 (quoting Kitchen, 110 Wn.2d at 409).

        Failure to give a unanimity jury instruction is a manifest constitutional error that may be

raised for the first time on appeal. State v. Moultrie, 143 Wn. App. 387, 392, 177 P.3d 776 (2008).

        “A multiple acts unanimity instruction is not required when the State presents evidence of

multiple acts that indicate a ‘continuing course of conduct.’” State v. Locke, 175 Wn. App. 779,

803, 307 P.3d 771 (2013) (quoting State v. Crane, 116 Wn.2d 315, 326, 804 P.2d 10 (1991)). “‘A

continuing course of conduct requires an ongoing enterprise with a single objective.’ To determine

whether multiple acts constitute a continuing course of conduct, we evaluate the facts in a

commonsense manner.” Locke, 175 Wn. App. at 803 (internal citation omitted) (quoting State v.

Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996)).

        “Washington courts have found a continuing course of conduct in cases where multiple

acts of the charged crime were committed with a single purpose against one victim in a short period

of time.” Locke, 175 Wn. App. at 803.




                                                  30
49534-1-II / 49555-4-II / 49556-2-II


       In Love, police found drugs on the defendant’s person, then executed a search warrant at

his residence and found additional drugs, guns, a large sum of money, and other drug delivery

paraphernalia. 80 Wn. App. at 359. The State charged Love with one count of possession of a

controlled substance with intent to deliver. Love, 80 Wn. App. at 358. On appeal, Love argued

that the jury should have received a unanimity instruction, because of the distinct drugs found on

his person and those found at his residence. Love, 80 Wn. App. at 360.

       The court concluded that no unanimity instruction was required because Love’s possession

of the drugs on his person and at his residence reflected “his single objective to make money by

trafficking cocaine; thus, both instances of possession constituted a continuous course of conduct.”

Love, 80 Wn. App. at 362.

       In State v. King, however, the State charged King with one count of possession of a

controlled substance for drugs found both in a vehicle in which King had ridden, and found on his

person in a fanny pack. 75 Wn. App. 899, 901, 878 P.2d 466 (1994). The court concluded that

the evidence showed “two distinct instances of cocaine possession occurring at different times, in

different places, and involving two different containers—the Tylenol bottle [found in the vehicle]

and the fanny pack. One alleged possession was constructive, the other actual.” King, 75 Wn.

App. at 903. The court reversed King’s conviction because the trial court had failed to provide the

jury with a unanimity instruction. King, 75 Wn. App. at 904.

       Love distinguished King on the basis that a rational juror could have believed either that

King possessed the cocaine found on his person but the driver possessed the cocaine found in the

car, or that King possessed the cocaine found in the car, but police planted the cocaine on his

person, as King presented evidence as to both of these defenses. 80 Wn. App. at 363. Love,

however, did not provide distinct defenses to the different cocaine stashes found on his person and



                                                31
49534-1-II / 49555-4-II / 49556-2-II


in his residence; he contended that all of it had been planted by the police, leaving the jury “no

rational basis to conclude that Love possessed the cocaine found on his person for personal use,

and that found at the residence with intent to deliver.” Love, 80 Wn. App. at 363.

       In State v. Furseth, 156 Wn. App. 516, 518, 233 P.3d 902 (2010), the State charged Furseth

with one count of possessing child pornography. The State produced evidence that Furseth had

possessed multiple specific images and Furseth argued that he was entitled to a unanimity

instruction because the jurors, in finding him guilty, could have found he had possessed different

images and not been unanimous on the verdict. Furseth, 156 Wn. App. at 519. The court looked

to State v. Sutherby, 165 Wn.2d 870, 204 P.3d 916 (2009), which held that the unit of prosecution

for child pornography was each “possession” of child pornography, without regard to the number

of individual images possessed or the number of minors depicted. Furseth, 156 Wn. App. at 520-

21. The court ruled that the State had alleged only one “possession” of child pornography, making

the case “significantly different from prosecutions held to constitute multiple acts cases.” Furseth,

156 Wn. App. at 522. The court did not discuss the continuing course of conduct exception.

       To prove that Gore unlawfully possessed a firearm in the first degree, the State had to prove

that Gore “ha[d] previously been convicted of a serious offense and knowingly own[ed] or ha[d]

in his possession or control any firearm.” CP at 361; RCW 9.41.040(1)(a). Unlawful possession

of a firearm is a “course of conduct’ rather than a discrete act because that behavior takes place

over a period of time rather than at one distinct moment.” State v. Kenyon, 150 Wn. App. 826,

834, 208 P.3d 1291 (2009). Because unlawful possession of a firearm is a “course of conduct, . .

. interruption in possession of a particular firearm may result in different ‘possessions.’” State v.

Mata, 180 Wn. App. 108, 120, 321 P.3d 291 (2014).




                                                 32
49534-1-II / 49555-4-II / 49556-2-II


       In this case, the State presented evidence that Gore had the guitar bag containing the assault

rifle when Milton-Ausley picked him up. It also presented evidence that he fired one of Kitt’s two

handguns during the shooting at the red store.

       The State charged Gore with a single count of unlawful possession of a firearm, despite

evidence tying Gore to two distinct firearms. It presented evidence of Gore’s “single objective”

to shoot at gang rivals and how possession of either firearm would advance that ultimate goal,

suggesting that the possession charge presented a continuous course of conduct rendering a

unanimity instruction unnecessary. The State charged only one count of unlawful possession

because the unit of prosecution for unlawful possession of a firearm is based on “course of

conduct” rather than individual firearms.

       Gore did not present distinct defenses to the two firearms. In fact, his defense counsel

admitted in closing that Gore had possessed the assault rifle, and focused the defense on the murder

and assault charges.

       No unanimity instruction was required because the State alleged a single course of conduct

in which Gore unlawfully possessed a firearm.

VI.    AUTOMATIC DECLINE FROM JUVENILE COURT

       Gore claims he was denied due process by his automatic decline from juvenile court.14 He

claims the statute providing for automatic decline of juvenile court jurisdiction for 16- and 17-

year-olds that commit serious violent offenses is facially unconstitutional. We disagree.




14
  This argument appears in Krentkowski’s brief, but we do not address it as to him because we
reverse his conviction in the published portion of this opinion. Kitt and Gore join this argument,
however we address it only at to Gore because Kitt was older than 18 at the time of the offense.


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       Since the parties filed their briefs in this case, the Supreme Court decided State v. Watkins,

191 Wn.2d 530, 423 P.3d 830 (2018). The defendant in Watkins made an identical argument to

the one Gore makes in this case. 191 Wn.2d at 533. The court ruled that there is “no constitutional

right to be tried in juvenile court and, hence, no constitutional right to a [decline] hearing before

being tried in adult court.” Watkins, 191 Wn.2d at 536. We follow Watkins and conclude that

Gore had no due process right to have his case heard in juvenile court or to have a hearing for the

juvenile court to decline jurisdiction.

VII.   DOUBLE JEOPARDY

       The defendants contend that the trial court violated their double jeopardy rights when it

dismissed their murder in the second degree convictions without prejudice. We agree.

       “The United States Constitution provides that a person may not be subject ‘for the same

offense to be twice put in jeopardy of life or limb.’” State v. Chouap, 170 Wn. App. 114, 122, 285

P.3d 138 (2012) (quoting U.S. CONST. amend. V). “Similarly, the Washington Constitution

provides that a person may not be put in jeopardy twice for the same offense.” Chouap, 170 Wn.

App. at 122 (citing WASH. CONST. art. I, § 9). We review double jeopardy claims de novo. State

v. Kelley, 168 Wn.2d 72, 76, 226 P.3d 773 (2010).

       Double jeopardy prohibits “(1) a second prosecution for the same offense after acquittal,

(2) a second prosecution for the same offense after conviction, and (3) multiple punishments for

the same offense imposed in the same proceeding.” In re Pers. Restraint of Percer, 150 Wn.2d

41, 48-49, 75 P.3d 488 (2003).

       RCW 10.43.050 provides that defendants convicted or acquitted upon an information

“charging a crime consisting of different degrees . . . cannot be proceeded against or tried for the

same crime in another degree, nor for an attempt to commit such crime, or any degree thereof.”



                                                 34
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       Courts may not “enter multiple convictions for the same offense without offending double

jeopardy.” State v. Womac, 160 Wn.2d 643, 658, 160 P.3d 40 (2007). In Womac, a jury convicted

the defendant of homicide by abuse, felony murder in the second degree, and assault in the first

degree, all with the same victim. 160 Wn.2d at 647. The trial court entered judgment on all three

convictions, denied Womac’s motion to dismiss the latter two counts and left both on his record,

merely declining to impose sentences on them. Womac, 160 Wn.2d at 648-49. The Supreme

Court held that this practice violated double jeopardy because, although he did not receive

sentences on the latter two convictions, “he still suffer[ed] the punitive consequences of his

convictions,” such as an increased offender score in future prosecutions. Womac, 160 Wn.2d at

656.

       In State v. Turner, the trial court conditionally vacated the lesser included crimes of two

defendants, but specifically identified them as valid convictions on which the defendant could still

be sentenced in the event the greater convictions were reversed on appeal. 169 Wn.2d 448, 452-

53, 238 P.3d 461 (2010). This was not problematic under Womac because the lesser included

crimes were not reduced to judgment and did not appear in the defendants records. Turner, 169

Wn.2d at 462-63.

       Turner concluded that “a court may violate double jeopardy either by reducing to judgment

both the greater and the lesser of two convictions for the same offense or by conditionally vacating

the lesser conviction while directing, in some form or another, that the conviction nonetheless

remains valid.” 169 Wn.2d at 464. It held that “a judgment and sentence must not include any

reference to the vacated conviction—nor may an order appended thereto include such a reference;

similarly, no reference should be made to the vacated conviction at sentencing.” Turner, 169

Wn.2d at 464-65.



                                                35
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        In this case, the trial court vacated all three defendants’ lesser-included convictions for

murder in the second degree without prejudice. Kitt objected to this procedure and requested these

counts be dismissed with prejudice. The court noted the objection for the record but did not

respond to it.

        Unlike Womac and Turner, where the trial court maintained the lesser included conviction

contingent upon reversal of the greater conviction on appeal, the court in this case actually

dismissed the lesser included convictions. However, because it dismissed them without prejudice,

it left the State free to bring additional charges for murder in the second degree in the future.

Double jeopardy prohibits a second prosecution for the same crime. The trial court erred by

dismissing the murder in the second degree counts without prejudice.

VIII.   MILLER HEARING

        Gore contends that the trial court erred in sentencing him because it failed to take account

of his youthfulness pursuant to recent Supreme Court cases concerning sentencing of juveniles.

See, e.g., State v. Ramos, 187 Wn.2d 420, 387 P.3d 650 (2017); State v. Houston-Sconiers, 188

Wn.2d 1, 391 P.3d 409 (2017); State v. Bassett, 192 Wn.2d 67, 428 P.3d 343 (2018). The State

concedes that, due to developments in the law since Gore was sentenced, his case must be

remanded for resentencing. We accept the State’s concession and remand for a Miller hearing.

        Washington has “consistently applied the Miller principle that ‘children are different.’”

Bassett, 192 Wn.2d at 81 (quoting Miller v. Alabama, 567 U.S 460, 481, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012)). Miller requires that “a life-without-parole sentence cannot be imposed on a




                                                36
49534-1-II / 49555-4-II / 49556-2-II


juvenile homicide offender whose crimes reflect transient immaturity.” Ramos, 187 Wn.2d at 436.

Therefore, “where a juvenile offender facing a standard range life-without-parole sentence proves

that his or her crimes reflect transient immaturity, the juvenile has necessarily proved that there

are substantial and compelling reasons for an exceptional sentence downward.” Ramos, 187

Wn.2d at 436.

        A Miller hearing “is not an ordinary sentencing proceeding.” Ramos, 187 Wn.2d at 443.

“Miller ‘establishes an affirmative requirement that courts fully explore the impact of the

defendant’s juvenility on the sentence rendered.’” Ramos, 187 Wn.2d at 443 (quoting Aiken v.

Byars, 410 S.C. 534, 543, 765 S.E.2d 572 (2014)). Accordingly, a Miller hearing must “do far

more than simply recite the differences between juveniles and adults and make conclusory

statements that the offender has not shown an exceptional downward sentence is justified.”

Ramos, 187 Wn.2d at 443. In a proper Miller hearing, a trial court must

        receive and consider relevant mitigation evidence bearing on the circumstances of
        the offense and the culpability of the offender, including both expert and lay
        testimony as appropriate. The court and counsel have an affirmative duty to ensure
        that proper consideration is given to the juvenile’s ‘chronological age and its
        hallmark features—among them, immaturity, impetuosity, and failure to appreciate
        risks and consequences.’ It is also necessary to consider the juvenile’s ‘family and
        home environment’ and ‘the circumstances of the homicide offense, including the
        extent of his participation in the conduct and the way familial and peer pressures
        may have affected him.’ And where appropriate, the court should account for
        ‘incompetencies associated with youth’ that may have had an impact on the
        proceedings, such as the juvenile’s ‘inability to deal with police officers or
        prosecutors (including on a plea agreement) or his incapacity to assist his own
        attorneys.

Ramos, 187 Wn.2d at 443-44 (internal citations omitted) (quoting Miller, 567 U.S. at 477). A

juvenile “cannot forfeit his or her right to a Miller hearing merely by failing to affirmatively request

it, and all doubts should always be resolved in favor of holding a Miller hearing.” Ramos, 187

Wn.2d at 443.



                                                  37
49534-1-II / 49555-4-II / 49556-2-II


       Ramos imposed the requirement of a Miller hearing in a case where the defendant was

sentenced to a “de facto” life sentence of four consecutive sentences, totaling 85 years with no

provision of law providing a possibility of parole. 187 Wn.2d at 437. “Miller’s reasoning clearly

shows that it applies to any juvenile homicide offender who might be sentenced to die in prison

without a meaningful opportunity to gain early release based on demonstrated rehabilitation.”

Ramos, 187 Wn.2d at 438.

       Bassett held that sentencing juvenile offenders to life without parole or early release always

constitutes cruel punishment in violation of article I, section 14 of the Washington Constitution.

192 Wn.2d at 91.

       Gore was a juvenile at the time of his crimes. Gore raised his youthfulness as a mitigating

factor at his sentencing hearing and the trial court stated that it did not see Gore’s youthfulness as

a basis to differentiate his sentence from Kitt’s. The trial court did not specifically consider any

of the various factors the Supreme Court discussed as necessities for a Miller hearing in Ramos,

such as Gore’s immaturity, impetuosity, failure to appreciate risks and consequences, Gore’s

family and home environment, the extent of Gore’s participation in the crime, peer pressures, or

Gore’s abilities to assist his counsel at trial. The court then sentenced Gore to a standard range

sentence of 82 years in prison, a de-facto life sentence. Gore’s situation is near identical to that of

the defendant in Ramos except he did not receive a Miller hearing equivalent to that the court

stated was required in that case.

IX.    LEGAL FINANCIAL OBLIGATIONS

       Kitt and Gore contend that the court erred by including a $200 criminal filing fee and a

$100 DNA collection fee in their sentences. We agree.




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49534-1-II / 49555-4-II / 49556-2-II


       While this case was pending appeal, the legislature modified Washington’s LFO system.

Among other changes, it eliminated interest accrual on non-restitution LFOs, made the DNA

database fee non-mandatory for offenders whose DNA had already been collected due to a prior

conviction, and prohibited the $200 filing fee and discretionary costs on indigent defendants. State

v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018); RCW 10.01.160; RCW 10.82.090(1); RCW

36.18.020(2)(h); RCW 43.43.7541; LAWS OF 2018, ch. 269, §§ 1, 6, 17, 18. The amendments

apply to cases on appeal when they took effect on June 7, 2018, because those cases were not final.

Ramirez, 191 Wn.2d at 738, 747.

                                         SAG ANALYSIS
I.     GORE SAG15

       A.      FINGERPRINT EVIDENCE

       Gore contends in his SAG that his attorney did not argue that his handprints and

fingerprints were not found on the guns or the vehicle involved in the shooting. He argues that he

is “currently serving time for a charge but [his] fingerprints were not on any evidence that the law

charged [him] with in this case.” SAG (Gore) at 1.

       We interpret Gore’s first argument as an ineffective assistance of counsel claim for his trial

counsel’s failure to argue about the lack of fingerprint evidence in the case. We apply the same

standard of review for ineffective assistance of counsel in a SAG as we did above. Prejudice exists

if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings

would have differed. Grier, 171 Wn.2d at 34.



15
  In addition to the arguments discussed below, Gore contends that he was “brought to jail with
no additional warrants” and was “being investigated with a charge that had nothing to do with this
case and . . . was detained when they did the illegal search.” SAG (Gore) at 1. This argument
does not inform this court of the nature or occurrence of any particular error. RAP 10.10(c). We
do not respond to this argument.


                                                 39
49534-1-II / 49555-4-II / 49556-2-II


       The trial in this case lasted more than three weeks and included testimony of more than 40

witnesses. Although fingerprint evidence on the guns may have implicated Gore further, lack of

fingerprint evidence does not prove that Gore did not possess one of the handguns. The lawyer

was not deficient for failing to make this argument. Additionally, Gore has not shown that, had

his attorney mentioned the lack of fingerprint evidence in closing, that the result would have likely

differed. Gore did not receive ineffective assistance of counsel.

       B.      JUROR ISSUES

       Gore contends that Juror 11 “went to sleep during the whole trial.” SAG (Gore) at 1.

Because no one moved to dismiss Juror 11 at trial, this issue is not preserved on appeal and we do

not consider it. RAP 2.5(a).

       Gore also contends that Juror 11’s son was supposed to be on the jury rather than Juror 11.

Kitt’s attorney raised this issue in a substantive brief and Gore adopted the argument. Matters that

“have been thoroughly addressed by counsel” are “not proper matters for [the] statement of

additional grounds under RAP 10.10(a).” State v. Thompson, 169 Wn. App. 436, 493, 290 P.3d

996 (2012).

II.    KITT SAG

       A.      SELF-DEFENSE INSTRUCTION

       Kitt contends that the trial court erred by refusing to instruct the jury on self-defense. We

disagree.

       “‘To be entitled to a jury instruction on self-defense, the defendant must produce some

evidence demonstrating self-defense; however, once the defendant produces some evidence, the

burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt.’”




                                                 40
49534-1-II / 49555-4-II / 49556-2-II


State v. McCreven, 170 Wn. App. 444, 462, 284 P.3d 793 (2012) (quoting State v. Walden, 131

Wn.2d 469, 473-74, 932 P.2d 1237 (1997)).

          The standard of review of the trial court’s decision whether to give a self-defense

instruction “depends on whether the reason for such refusal was based on fact or law.” State v.

George, 161 Wn. App. 86, 94, 249 P.3d 202 (2011). If the trial court refused the instruction

“‘because it found no evidence supporting the defendant’s subjective belief of imminent danger of

great bodily harm, an issue of fact, the standard of review is abuse of discretion.’” George, 161

Wn. App. at 94 (quoting State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002)).

          “It is the rule that the accidental killing of a third person by the accused acting in self-

defense would constitute justifiable homicide.” State v. Labbee, 134 Wn. 55, 62, 234 P. 1049

(1925).

          The proposed instruction in this case would have provided that the homicide was justifiable

if the jury found “that the person slain or others whom the defendant reasonably believed were

acting in concert with the person slain intended to commit a felony to inflict death or great personal

injury.” CP at 242; WPIC 16.02. The proposed instruction did not discuss self-defense against a

person unrelated to the person slain. At the trial court, no one raised the fact that any self-defense

argument by the defendants would relate to defending against Alexander and the other Knoccout

members, not any of the victims of the murder or assault charges.

          The trial court declined to give this instruction for two reasons. First, it ruled that it would

be “illogical to require the State to prove the absence of self defense beyond a reasonable doubt

but not give the State notice of such a defense until the end of the fourth week of trial.” CP at 256.

This reason is unsupported by law, as a defendant “is entitled to a self-defense instruction when,

considering all of the evidence, the jury could have a reasonable doubt as to whether the defendant



                                                    41
49534-1-II / 49555-4-II / 49556-2-II


acted in self-defense.” State v. Thysell, 194 Wn. App. 422, 426, 374 P.3d 1214 (2016). The

defense is not required to provide advance notice to the State of its intent to raise self-defense.

       Second, the trial court found that there was “no credible evidence that the occupants of the

Cadillac Escalade reasonably believed that Brandon Morris, or anyone whom the defendants

reasonably believed were acting in concert with Brandon Morris, intended to inflict death or great

personal injury.” CP at 256.

       On appeal, Kitt argues in his SAG that the trial court erred by declining to give the self-

defense instruction, but focuses all his arguments on facts about the Knoccout members’ allegedly

threatening actions and case law about when courts should give a self-defense instruction. He does

not address the trial court’s stated grounds for denying the instruction, nor does he acknowledge

that none of the victims in this case were the individuals alleged to have been the basis for the

proposed self-defense instruction.

       Because there was no evidence that Morris or his companions took any action justifying

self-defense, and no one argues that self-defense should apply to the third-party Knoccout

members in this case, we affirm the trial court’s decision declining to give the jury instruction that

Kitt proposed.

       B.        FAILURE TO SEVER

       Kitt contends that the trial court erred by failing to sever the joint-trial, causing him unfair

prejudice. He claims that he was unfairly prejudiced by the evidence of Gore’s note threatening

to kill Tucker and that the limiting jury instruction was insufficient to cure this prejudice under

Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). We disagree.




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               1.     Bruton

       CrR 4.4(c)(1) provides:

       A defendant’s motion for severance on the ground that an out-of-court statement of
       a codefendant referring to him is inadmissible against him shall be granted unless:
               (i) the prosecuting attorney elects not to offer the statement in the case in
       chief; or
               (ii) deletion of all references to the moving defendant will eliminate any
       prejudice to him from the admission of the statement.

       The Sixth Amendment provides criminal defendants a right to “to be confronted with the

witnesses against him.” U.S. CONST. amend VI. The admission of an out-of-court statement by a

nontestifying codefendant violates a defendant’s confrontation clause rights. State v. Wilcoxon,

185 Wn.2d 324, 330, 373 P.3d 224 (2016). In Bruton, one defendant confessed to a crime,

implicating his codefendant, and the two were then tried together. 391 U.S. at 124. The trial court

instructed the jury to disregard the confession as to the codefendant’s guilt or innocence, but the

Supreme Court reversed, “holding that the use of [the confessing codefendant’s] confession

violated [the defendant’s] confrontation right, even with the limiting instruction.” Wilcoxon, 185

Wn.2d at 330 (citing Bruton, 391 U.S. at 128).

       In Wilcoxon, the Supreme Court considered how to harmonize Bruton with Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 185 Wn.2d at 332. The

court ruled that “the confrontation clause applies only to situations that involve out-of-court

statements made by nontestifying codefendants when such statements are testimonial.”16

Wilcoxon, 185 Wn.2d at 333-34. Accordingly, admission of Gore’s statements against Kitt only



16
   Wilcoxon was a plurality opinion. 185 Wn.2d at 337. However, five justices agreed that the
confrontation clause applies only to testimonial statements; two justices simply disagreed about
how to categorize a given statement as “testimonial.” Wilcoxon, 185 Wn.2d at 336-38. Under
either the plurality or concurrence test from Wilcoxon, Gore’s threats were not testimonial
statements.


                                                 43
49534-1-II / 49555-4-II / 49556-2-II


violated Kitt’s confrontation clause rights if Gore’s out-of-court statements were “testimonial”

under the confrontation clause.

       “[A] statement is ‘testimonial’ if it is the functional equivalent of in-court testimony.”

Wilcoxon, 185 Wn.2d at 334. “A testimonial statement is designed to establish or prove some past

fact, or is essentially a weaker substitute for live testimony at trial.” Wilcoxon, 185 Wn.2d at 334.

       Gore’s threat to kill Tucker’s family if he “snitched” was not testimonial and Kitt’s

confrontation clause rights were not violated by admission of this evidence.

               2.      Unfair Prejudice

       Kitt further contends that the admission of the note against Gore “was improper, unfair,

and highly prejudicial” such that severance should have been granted. SAG (Kitt) at 8. We

disagree.

       CrR 4.4(c)(2)(ii) provides that the court should sever defendants whenever “during trial

upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of

the guilt or innocence of a defendant.” Washington law disfavors separate trials and we review a

trial court’s decision to proceed with joint or separate trials for manifest abuse of discretion. State

v. Emery, 174 Wn.2d 741, 752, 278 P.3d 653 (2012). Trial courts properly grant severance motions

“only if a defendant demonstrates that a joint trial would be ‘so manifestly prejudicial as to

outweigh the concern for judicial economy.’” State v. Johnson, 147 Wn. App. 276, 283-84, 194

P.3d 1009 (2008) (quoting State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991)).

       “A ‘defendant must be able to point to specific prejudice’ to demonstrate that the trial court

abused its discretion.” Johnson, 147 Wn. App. at 284 (quoting State v. Grisby, 97 Wn.2d 493,

507, 647 P.2d 6 (1982)). A defendant may demonstrate specific prejudice by showing

       “(1) antagonistic defenses conflicting to the point of being irreconcilable and
       mutually exclusive; (2) a massive and complex quantity of evidence making it


                                                  44
49534-1-II / 49555-4-II / 49556-2-II


       almost impossible for the jury to separate evidence as it related to each defendant
       when determining each defendant’s innocence or guilt; (3) a co-defendant’s
       statement inculpating the moving defendant; (4) or gross disparity in the weight of
       the evidence against the defendants.”

State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995) (quoting United States v.

Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)). In this case, Kitt claims that evidence of Gore’s

threats to witnesses inculpated him because Gore’s threats used the word “we.”

       The evidence showed that Gore threatened Tucker with a note that said, “Please don’t

snitch. Take your statement back or were [sic] gonna kill your family.” CP at 40. The court then

read a jury instruction which said the evidence was admitted for a limited purpose and “may only

be considered by you as evidence against Jermohnn Gore and may not be used as evidence against

any other defendants, including [Kitt] and [Krentkowski].” 12 RP at 2301.

       The jury is presumed to follow the court’s instructions. Grisby, 97 Wn.2d at 499. To the

extent evidence of the threatening note could have prejudiced Kitt’s case, the court specifically

instructed the jury it should not consider the note as to Kitt. Because the court specifically

instructed the jury that any evidence of the threatening note was to be considered only against

Gore, it did not abuse its discretion by denying Kitt’s motion to sever the trials in this case.

       C.      INEFFECTIVE ASSISTANCE OF COUNSEL

       Kitt claims he received ineffective assistance of counsel because his trial counsel failed to

request a third-party culpability jury instruction. We disagree.

       Washington does not have any standard jury instruction on “third party culpability.” Kitt

cites to several cases concerning when evidence that a third party committed the charged crime

may be admissible at trial. See SAG (Kitt) at 10-11 (citing People v. Hall, 41 Cal. 3d 826, 833,

718 P.2d 99, 226 Cal. Rptr. 112 (1986); Evans v. Montgomery, No. CV 15-3296-R (JPR), 2016

WL 3457192 (C.D. Cal. May 17, 2016) (court order)).


                                                  45
49534-1-II / 49555-4-II / 49556-2-II


        The defense presented evidence that a blue Chevy Corsica may have fired shots toward the

alley. However, if the jury believed that a shot from the Corsica killed Morris, it would not have

found the defendants guilty. No further jury instruction was required to inform the jury that, if it

believed that the Knoccout members or the Corsica had committed the murder, it should have

found the defendants not guilty. Kitt’s trial counsel was not deficient for failing to request a jury

instruction on this issue and Kitt has not shown that the lack of such an instruction prejudiced his

case.

        D.     MILLER

        Kitt contends that, although he was not a juvenile at the time of the crime, the court should

have considered his youthfulness as a mitigating factor in his sentence because he was 23 years

old at the time of the offense. He claims this court must remand to the trial court for resentencing

for the trial court to consider his youthfulness as a mitigating factor. We disagree.

        Miller and its Washington progeny are discussed above. In addition to those cases, State

v. O’Dell, 183 Wn.2d 680, 683, 358 P.3d 359 (2015), applied the reasoning from Miller to a

defendant who had committed his offense 10 days after his 18th birthday. The court held that age

may mitigate a defendant’s culpability, “even if that defendant is over the age of 18” but noted that

“age is not a per se mitigating factor automatically entitling every youthful defendant to an

exceptional sentence.” O’Dell, 183 Wn.2d at 695. The court held that “a trial court must be

allowed to consider youth as a mitigating factor when imposing a sentence on an offender like

O’Dell, who committed his offense just a few days after he turned 18.” O’Dell, 183 Wn.2d at 696.

The court noted psychological and neurological studies that showed “‘parts of the brain involved

in behavior control’ continue to develop well into a person’s 20s.” O’Dell, 183 Wn.2d at 691-92

(quoting Miller, 567 U.S. at 472).



                                                 46
49534-1-II / 49555-4-II / 49556-2-II


       Unlike the defendant in O’Dell, Kitt was 23 at the time of the shooting in this case. Nothing

in the record demonstrated Kitt’s particular immaturity and he has not argued that he was

especially immature except for identifying his age as 23 years old at the time of the crime. Also

unlike O’Dell, Kitt did not raise the issue of his youthfulness before the trial court. Kitt was six

years older than the next youngest of all six individuals in the vehicle at the time of the shooting.

       Kitt has not shown any particular youthful immaturity necessitating a Miller hearing.

                                          CONCLUSION

       We affirm Kitt’s and Gore’s convictions, but remand for the trial court to dismiss their

murder in the second degree convictions with prejudice, conduct a Miller hearing for Gore, and to

strike LFOs from both their sentences.




                                                              Melnick, J.

We concur:




       Worswick, P.J.




       Sutton, J.




                                                 47
