                                                                                                 FILED
                                                                                     COURT OF APPEALS
                                                                                         D1\' ISION 11

                                                                                    H11-
                                                                                       I      APR - 8    AM 10: 50

                                                                                    STATE OF WASHINGTON

    IN THE COURT OF APPEALS OF THE                                      STATE            OF             SHINGTON
                                                                                                 OEJ UTY
                                                   DIVISION II

STATE OF WASHINGTON,                                                                    No. 42425- 8- 11


                                       Respondent,


         v.



MICHAEL AUSTIN KERBY,                                                               Consolidated with


                                       Appellant.
STATE OF WASHINGTON,                                                                    No. 42428- 2- 11


                                        Respondent,


         v.



JEFFREY ALLEN STRICKLAND                                                     UNPUBLISHED OPINION


                                        Appellant.




         LEE, J. —     A jury found Michael Austin Kerby and Jeffrey Allen Strickland guilty of two

counts   of   first degree    assault while      armed with a        firearm.      Both Kerby and Strickland raise

numerous      issues in their    appeals.   In Strickland' s case, the trial court erred by admitting Kerby' s

statement     to the    police    without    a   limiting   instruction.      Therefore, we reverse Strickland' s


conviction     and remand        for   proceedings   consistent with       this    opinion.        The trial court did not


commit reversible error in Kerby' s case, and we affirm Kerby' s conviction.

                                                           FACTS


         Daniel   Ivy   and   Eugene Savage        were    having   drinks   at   Mac'    s   Cigar   and   Tavern. At some


point   in the evening, Savage         went outside   to    smoke.    Kerby       and   Strickland      were   already   outside
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smoking.           Savage    made a     passing    comment     to   Kerby      and      Strickland in Spanish.            Kerby and

Strickland took offense to being spoken to in Spanish and confronted Savage about the perceived

disrespect.         The     confrontation   between    Kerby,       Strickland,         and   Savage began to         escalate.   Ivy

noticed the confrontation from inside and went outside to try to intervene and calm the situation.

At first, it appeared that the situation was resolved, but then the conflict began to escalate again.


During    the       conflict,   Ivy   was   shot   in the   chest     and    Savage      was    shot    in the     leg.   Kerby and

Strickland fled from the scene, but were later apprehended by law enforcement.

          The State charged both Kerby and Strickland with two counts of first degree assault while

armed with a         firearm.       On April 4, 2011, the trial court heard several pretrial motions, including

the State' s motion to continue the trials and to join Kerby' s and Strickland' s cases for trial. The

State moved to continue the trials in order to finish forensic testing on bullets and shell casings

found    at   the   scene of    the shooting.      The State told the court that the evidence was currently with

the   fingerprint lab,        and   that the fingerprint    testing   should       be   completed      in   a   few days. However,


the evidence would then need to be sent to another lab for deoxyribonucleic acid (_
                                                                                  DNA) testing

which would take approximately 60 days from the time the DNA lab received the evidence.

Both    Kerby        and    Strickland   objected    to continuing their           trials.    The trial court stated that the


evidence found from forensic testing had the potential to benefit either party, and therefore, there

was good cause to continue the trial until the forensic testing could be completed. The trial court

entered       an    order   continuing the trial date "       for good cause to allow completion of laboratory

testing." Suppl. Clerk' s Papers ( CP) ( Dec. 6, 2011)                  at   35.
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          The trial        court   also    heard the State'   s   motion   for joinder.   Strickland objected to the


joinder because the State was going to introduce statements that Kerby made to the police after
                 1
his   arrest.          The State conceded that if the trials were joined he could not introduce any of

Kerby' s statements that implicated Strickland. However, the State presented a redacted copy of

Kerby' s statement which it argued eliminated any mention of Strickland and, therefore, did not

prevent joint trials. The trial court agreed and granted the State' s motion for joinder.


          On June 13, 2011, Kerby wrote a letter to the trial court, stating he wanted the trial court

to do   one of        three things: ( 1)    dismiss the   case, (   2) allow Kerby to proceed pro se, or ( 3) replace

his current counsel with specific counsel. Kerby listed four grounds supporting his request:

          1. (       no objections) except to my right to speedy trial in 3 strikes case.
          2.         Since I' ve been graciously given 2 lawyers, they have only been to court 2
          times together and 4 or 5 times just one.
          3.         My trial date was suppose [ sic] to be June 2nd but my attorney had 5 days
          vacation. WOW.
                   Well my life is worth more than a 5 day vacation.
          4.  I find it mysteriously odd that the PA knows our or my every move when we
          get to court.   OH. Because Ted DeBray is hoping to work 4 [ sic] PA. Makes
          sense now.




Suppl. CP ( Dec. 7, 2012)             at    89.   Kerby also stated that until the trial court granted one of his

three requests he would no longer attend court.


          The trial court responded with a letter stating:

                        I have reviewed your correspondence presented to the court on June 13,
          2011.  It appears you have three issues you believe need to be heard by the court.
          Specifically:
                  A. You are concerned regarding representation by your present attorneys;



1 The trial court held a CrR 3. 5 hearing and found that Kerby' s statements were made after a
knowing          and   voluntary   waiver of      his Miranda   rights.
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                    B.      You are requesting appointment of different counsel or in the
         alternative to represent yourself;

                 C. You indicate that you will not be appearing in further court hearings.
                  am placing your correspondence in the court file. Copies are being sent
                    I
         to your attorneys and to the prosecuting attorney as I am required to do.
                 The issues you raise in your correspondence will be addressed at hearing
         on Friday, June 17, 2011, at 8: 30 A.M. Your attendance will be required.

Suppl. CP ( Dec. 7, 2011) at 95. At the June 17 hearing, the trial court allowed Kerby to speak on

the record regarding his attorneys. Kerby stated:

                    I am ready for trial, and I would like to dismiss DeBray, keep Hatch and
         Keehan, for        all   the   reasons       I   mentioned   in there.   For me, it was, I haven' t seen
         anybody         since    I have had two lawyers.                 They have been to court twice in three
         months     together.    That' s crazy. He comes back, he leaves for ten days. I don' t
         know      what' s   going on. You know, and out of respect for him and Keehan, for
         him telling me that he is still on vacation, still doing work, that' s good enough for
         me. But, you know, for me not to hear anything. And, you know, everything that
         is done in this case, I did. If I didn' t have any law books, I would be sitting doing
         life   right now.        That'   s a      fact. You know, but I have to fight for myself and fight
         for my co- defendant, because it' s crazy. That' s all. I just wish that you would
         letkeep him, I just don' t see any reason for me to put my life in someone —I
         don' t trust looking at life in prison.

1 Report of Proceedings at 9.


         The trial court responded that Kerby had been appointed good lawyers and it did not

matter whether Kerby liked them because they were doing a good job. The trial court concluded

by   stating, " Rule     number     two,      replacement of counsel and          anything   of   that   nature, no,   denied."   1


RP at 13 - 14.


         The    jury     trial    began       on    June 28, 2011.         After the jury voir dire was conducted, the

attorneys,   the   defendants,          and   the trial    court conducted a side     bar to   select a    jury.   After the side


bar the trial court made the following record:




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          The record will reflect, that approximately, 12: 05, the lawyers and Mr. Strickland
          and Mr. Kerby and I stepped to the table and a side bar to select the jury.     We
          spent approximately 20 to 25 minutes doing that. Every one [ sic] was given the

          opportunity to exercise their challenges, and for all intents and purposes as
          making a record of the side bar, that' s what took place.

1RPat24.


          At trial, Ivy testified about the events leading up to the shooting. Ivy saw Savage talking

to Strickland and Kerby and believed they were in some type of confrontation. Ivy left the bar to

check    on    the   situation.      When he got outside he learned that Strickland and Kerby felt

disrespected because Savage had               spoken   to them in Spanish.          Ivy attempted to calm the situation

down, but Strickland and Kerby began saying that it needed to be dealt with away from the bar.

Ivy attempted to leave with Savage, and he believed that he had gotten the situation calmed

down. However, the situation began escalating again when Kerby encouraged Strickland to deal

with   being     disrespected.    Ivy walked to the car, realized that Savage was not with him, and went

back to    get   him.   At that point, Ivy saw Strickland raise his arm up and saw the muzzle of the

weapon.          heard a
              Ivy_          " click"   followed     by    a "   bang " and    realized   he had been   shot   in the   chest.   1


RP at 99. Ivy went back into the bar and asked for help.

          Ivy admitted that before the altercation he had consumed approximately seven to eight

beers.    He did not know either Strickland or Kerby before the incident so he identified the

shooter as     the   shorter of   the two     people and
                                                                wearing   a   black " pouffy" jacket.     1 RP    at   98.   Ivy

also   testified that the     woman         who    was    with     Strickland    and     Kerby ( later identified as Jerri

Chrisman)        said " just shoot   his   ass."   2 RP   at    134.   In addition, Ivy was adamant that nobody had




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a stun gun or got stunned.                      Finally, Ivy admitted that he could not identify Strickland as the

shooter when he originally spoke to the police.

            Savage also testified. He remembered going to Mac' s, but he admitted that he had " a fair

amount      to drink."     1 RP        at   35.       Savage also admitted that he had a limited memory about what

happened       on   the   night       he    was       shot   because he        was   highly    intoxicated.          He testified that he


remembered going outside to smoke and saying something innocuous in Spanish. The next thing

he   remembered was          Ivy       getting        shot and     he    saw a muzzle        flash coming from Strickland. After


Ivy   was shot,      Savage       was       shot   in the     leg. Savage also testified that Strickland did not have a

coat on when        they   were outside.               Savage was also adamant that there was no stun gun involved


in the altercation. Savage did not identify Strickland as the shooter in his original statement, and

he never saw Kerby with a gun.

            Chrisman, Kerby' s girlfriend at the time, testified about her recollection of the day of the

shooting.      On the     night of         the shooting, Chrisman              picked    Kerby     up   at   the   bowling   alley.   Kerby

had    a stun gun     with     him         at   the   bowling       alley.              going to Mac' s, Chrisman and Kerby

stopped at        Chrisman'   s   house.          Chrisman thought she saw Kerby wrap a gun in a towel and bring

it   with   him.    Chrisman and Kerby picked up Strickland and the three of them went to Mac' s.

Kerby       and   Strickland      went outside               and   Chrisman followed them.               Chrisman saw Savage and


another man         wearing       a   cowboy hat             outside     the bar.    Chrisman heard one of the men speak to


Strickland in Spanish                 and    then      Kerby       got   angry   about    Strickland         being    disrespected.     The


confrontation       began to          escalate, and          Chrisman testified that           Kerby    stunned       Savage.    Chrisman


believed that       she   heard       Kerby        say " he    was       going to    shoot   the   mother     f* * * * * *"pull
                                                                                                                       and             out a




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gun.     2 RP       at   366.     Chrisman ran from the parking lot of Mac' s, and law enforcement later

contacted her at the nearby Jack in the Box.

          Chrisman             gave     several     statements       to      law   enforcement      over    the   course    of the


investigation. In her first statement, she did not say anything about Kerby having a firearm. In a

later statement, Chrisman told the defense investigator that she could not say who did the

shooting because            she   did   not   actually      see   it. On cross -examination, Chrisman' s account of the


events of      the shooting was           unclear and        contradictory.        For example, at one point she stated she


thought Kerby had the stun gun in one hand and the pistol in the other, although she was not

sure.    She       also admitted      that    she   has "   a tendency to black things out, black them out and make

them    try   to   go    away." 3 RP at 446.


          The State introduced               several pieces of evidence obtained              from the     crime scene.    One full


bullet   and       two   spent shell casings were recovered                   from the parking lot      outside of   Mac'   s.   The


bullet   and shell casings were               tested for DNA.            The lab was able to obtain a partial DNA profile.

Although the partial profile was insufficient to perform an identification the lab technician

testified that the         partial profile excluded               both   Kerby     and   Strickland.   Law enforcement never


recovered the gun used in the shooting.

          Aberdeen Police Detective Sergeant Arthur Laur interviewed Kerby after his arrest and
                                                                                              2
testified     about      the   statements     Kerby     made       during    the interview.       At first, Kerby stated that he

never saw or touched a gun. Later, Kerby said that he had a gun, but he never pulled the trigger;



2
    The State introduced Kerby' s statements through Laur' s testimony. Laur' s testimony was
based on, and consistent with, the redactions that the State presented during the pretrial motions.



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he   got rid of   the   gun.   Then, Kerby changed his story and stated that he never saw a gun but if

there was a gun, he got rid of it and did not shoot anybody.

         Strickland testified in his own defense. According to Strickland, Savage was the one who

attempted to start the confrontation. Neither Kerby. nor Strickland thought it was significant and

attempted      to ignore him.     By the time Ivy came outside, Strickland believed that the situation

was resolved.         Then Strickland left and began walking toward a store about half a block away.

As Strickland      was   walking away, he heard       gunshots and   began to    run   away.   Strickland testified


that he did     not   have   a gun, and   he   never shot anyone.    Strickland also testified that he was not

                                      3
wearing    a   black pouffy jacket.


         The trial court instructed the jury on both principal and accomplice liability for both

Strickland     and    Kerby. The trial court did not give a limiting instruction regarding the use of

Kerby' s   statements.       Kerby also requested an instruction regarding accomplice testimony based

on the theory that Chrisman acted as an accomplice and the jury should be cautioned on the use

of her testimony.4 The trial court refused to give Kerby' s proposed instruction on accomplice
testimony because it did not believe the facts of the case warranted a cautionary instruction.



3
    The black pouffy jacket       was a size     triple XL.   Strickland   was   5' 6" and weighed 160 pounds.

Apparently, at trial, Strickland tried the jacket on to demonstrate that it did not fit him.
4
    Kerby' s proposed instruction was WPIC 6. 05 which reads,
                 Testimony of an accomplice, given on behalf of the State, should be
         subjected to careful examination in the light of other evidence in the case, and
         should be acted upon with great caution. You should not find the defendant guilty
         upon such testimony alone unless, after carefully considering the testimony, you
         are satisfied beyond a reasonable doubt of its truth.
Suppl. CP ( Oct. 26, 2011)         at 27 ( quoting 11 WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 6. 05, at 184 -85 ( 3rd ed., 2008)).



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          During deliberations the jury sent the trial court a question which read,

          On the form regarding who was armed —                         It seems as if, the way in which the
          statement is written, it doesn' t matter who                  was armed with a       firearm ( i.e.) "   was


           Kerby],      or an accomplice armed ..."



                                                              LIKEWISE


                     was [    Strickland], or an accomplice, armed with a firearm ..."


                   Are we correct to interpret these statements as if it is not pertinent who has
          the gun?


Suppl. CP ( Oct. 27, 2011)            at   62.     The trial    court responded. "      Pursuant to your note of inquiry

regarding the      special verdict         form.     You must be guided by the instructions given to you by the

court."    Suppl. CP ( Oct. 27, 2011)              at   61.   The jury returned verdicts finding both Strickland and

Kerby     guilty   of   two     counts     of   first degree     assault     while   armed   with   a   firearm.    Kerby and

Strickland timely appeal.

                                                              ANALYSIS


          Strickland      and   Kerby      each raise numerous           issues.     However, with the exception of the


public    trial issue, their issues         are    separate     and   distinct.    Because it requires reversal, we first


address Strickland' s claim that the trial court erred by admitting Kerby' s statement to the police

without a    limiting     instruction.          We      also address   the   following   issues   raised   by   Strickland: ( 1)


whether the trial court violated the time for trial rules, (2) whether the accomplice liability statute

is unconstitutionally overbroad, and ( 3) whether sufficient evidence supports the jury' s verdict

because these issues          raise   double       jeopardy     concerns.      Because we reverse on the trial court' s


failure to give a limiting instruction regarding Kerby' s statements, it is unnecessary for us to

address    Strickland' s issues that do            not raise   double   jeopardy     concerns or    that may    arise on retrial.
No. 42425 -8/
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        Kerby        raises   three issues: (   1) whether the trial court violated his right to proceed pro se,


2) whether the trial court erred by denying Kerby' s request for a cautionary instruction on

accomplice testimony, and ( 3) whether the trial court violated Kerby' s and Strickland' s public

trial right.        Kerby also raises claims of ineffective assistance of counsel and prosecutorial
                                                                             5
misconduct      in his Statement         of     Additional Grounds ( SAG).       Kerby has not identified any

reversible error.



A. STRICKLAND' S CLAIMS


        1. Confrontation Clause Violation


        Strickland claims that the trial court erred by admitting Kerby' s statement to the police.

Although the trial court' s redaction of Kerby' s statement complies with the requirements set out

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




Richardson      v.   Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 ( 1987), the trial court


violated Strickland' s right to confrontation by failing to give the jury a proper limiting

instruction.


        We review a claim that the trial court violated the defendant' s right to confrontation by

admitting a codefendant' s statement de novo. State v. Larry, 108 Wn. App. 894, 901 -02, 34 P.3d

241 ( 2001) ( citing United States         v.    Mayfield, 189 F. 3d 895, 899 ( 9th Cir. 1999); United States v.


Hoac, 990 F. 2d 1099, 1105 ( 9th Cir. 1993)).                     In Bruton, the United States Supreme Court


established    that    a   defendant is "` deprived of his confrontation rights under the Sixth Amendment


when he [ is] incriminated by a pretrial statement of a codefendant who did not take the stand at



5 RAP 10. 10.


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trial. "'   Larry, 108 Wn. App. at 902 ( quoting State v. Hoffman, 116 Wn.2d 51, 75, 804 P. 2d 577

 1991)).         However, the confrontation clause is not violated if the statement can be redacted so


that it is no longer incriminating on its face. Richardson, 481 U.S. at 208.

            In Richardson, Richardson and two other defendants were convicted of assault and


murder.          481 U.S.    at   205.     The State introduced a codefendant' s confession that omitted any

indication that Richardson               participated     in the   crime.    Richardson, 481 U. S.        at   203. However, the


confession included a conversation that took place in a car between the codefendant and the third


participant (who was a fugitive at the time of trial) in which they decided they would have to kill

the victims after the robbery. Richardson, 481 U.S. at 204. Later, Richardson took the stand and

testified that she was in the car with the two other participants, although she alleged she did not

hear any     conversation about           killing   the   victims of      the robbery. Richardson,            481 U. S.   at   204. On


appeal, Richardson argued that the codefendant' s statement violated her right to confrontation


because it incriminated her by establishing that she participated in the robbery knowing that the

other participants premeditated              killing the      victims.                   481 U.S. at 205- 06. The United

States Supreme Court disagreed and held that because the statement did not incriminate


Richardson unless other evidence placed her in the car, introducing the statement did not violate

the confrontation clause. Richardson, 481 U. S. at 206.


            In   Larry, we      reached    the   same conclusion as         the Supreme Court       in Richardson. 108 Wn.

App.   at   907 -08.      Larry and his codefendant Varnes, kidnapped the victim at gunpoint, drove with

him in the         car,   and   ultimately       shot   him   several     times.    108 Wn.   App.       at    899 -902.       Varnes' s


confession was redacted and                introduced      at   trial.    Larry,   108 Wn.   App.   at   905 -06. Although the




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confession was redacted to eliminate any direct reference to Larry, it contained references to

another person         including    specific   references    to the       car' s   driver.        Larry, 108 Wn. App. 906.

Based on the evidence presented at trial, the jury could infer that Larry was the driver or one of

the other   people referred      to in the    statement.   Larry,       108 Wn.     App.     at   906. We held that although


the jury could infer that the statement referred to Larry as one of the participants in the crime, it

complied with the requirements of Bruton. Larry, 108 Wn. App. at 907.

          Here, the redacted statements admitted at trial complied with the rules established in


Richardson       and   Larry.      Kerby' s    statements    reference       what    he did        not   do, i. e., fire the gun,


possess   the   gun, or shoot anyone.          Strickland argues that Kerby' s statement directly incriminates

him because he was the other person at the scene, thus if Kerby did not shoot the gun, Strickland

must   have.     This is the     same argument        that   was        rejected   in Richardson          and   Larry. Kerby' s

statement       incriminates     Strickland      because     other        evidence,     including his own testimony, .

establishes that he was the other person with Kerby outside the bar, the statement is not

incriminating on its face. Therefore, the statement was redacted consistent with the requirements

of Richardson and Larry.

          In Richardson and Larry, however, the redaction cured any confrontation clause violation'

because the trial court explicitly instructed the jury that the statements could not be considered

evidence    against      the   codefendants.       481 U.S.        at    207;   108 Wn.           App.   at   905.   Without an


appropriate limiting instruction, the jury is free to consider testimonial hearsay as evidence

against the defendant which is a violation of the confrontation clause, regardless of whether the




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statement      directly      incriminates the defendant.            See Richardson, 481        U.S.   at   206 -07.   In


Richardson, the Supreme Court explicitly stated,

          We hold that the Confrontation Clause is not violated by the admission of a non-
          testifying codefendant' s confession with a proper limiting instruction when, as
          here, the confession is redacted to eliminate not only the defendant' s name, but
          any reference to his or her existence.

481 U. S.     at   211 (   emphasis added).        Here, the trial court failed to instruct the jury that Kerby' s

statement could not           be   considered evidence against        Strickland.   Without an explicit instruction


prohibiting the jury from considering Kerby' s statement as evidence against Strickland,

admission of the statement, even properly redacted, violated the confrontation clause.

          Further, the error was not harmless. Violations of the confrontation clause are subject to

harmless      error analysis.       State   v.   Davis, 154 Wn.2d 291, 304, 111 P. 3d 844 ( 2005), aff'd, 547


U. S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 ( 2006).                When determining whether a constitutional

error is harmless, we apply the overwhelming untainted evidence test. Davis, 154 Wn.2d at 305.

 Under that test, where the untainted evidence admitted is so overwhelming as to necessarily

lead to   a   finding      of guilt, the error    is harmless."     Davis, 154 Wn.2d    at   305.   Here, Ivy testified

that Strickland       was    the   person who shot      him.   However, Ivy never actually saw Strickland with

the   gun.    There was no evidence at trial that Strickland ever possessed the gun, and Savage was


not sure who shot           him.   Strickland denied possessing a gun or participating in the shooting, and

he testified that he was already leaving the scene at the time the shooting took place.

Accordingly, there was not overwhelming, untainted evidence proving that Strickland was the

shooter or participated in the shooting, and we reverse his conviction.




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          2



          2. Time for Trial


          Strickland argues that the trial court violated the time for trial rules by granting the

State'   s motion   for   a continuance over          his   objection.   Although the trial court' s error violating

Strickland' s right to confrontation is dispositive and requires reversal, we must address the

alleged    time   for trial    error   because    such an error would require            dismissal   with prejudice.   The


trial court did not abuse its discretion by granting the State' s motion to continue and, thus, did

not violate the time for trial rules.

          Under CrR 3. 3( b)( 2), a defendant not detained in jail is required to be brought to trial


within 90 days of his arraignment date. However, CrR 3. 3( f)( allows the trial court to continue
                                                             2)


the trial   date " when such continuance is required in the administration of justice and the


defendant    will not     be   prejudiced    in the   presentation of    his   or   her defense."    The decision whether


to grant or deny a motion to continue lies within the sound discretion of the trial court and will

not   be disturbed    absent a       showing      of manifest abuse of     discretion.      State v. Woods, 143 Wn.2d


561, 579, 23 P. 3d         1046 (      2001). "    A continuance granted by the trial court is an abuse of

discretion only if it can be said that the decision was ` manifestly unreasonable, or exercised on

untenable grounds, or          for   untenable reasons. "'       Woods, 143 Wn.2d at 579 ( quoting In re Det. of

Schuoler, 106 Wn.2d 500, 512, 723 P. 2d 1103 ( 1986)) ( internal quotations omitted).


          Strickland appears to rely in large part on the fact that the trial court' s written order

which granted the trial continuance " for good cause to allow completion of laboratory testing,"

does not contain explicit findings of fact on which the trial court relied when making its decision.

However, we can supplement written findings and orders with the trial court' s oral decision




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provided    that the trial     court' s oral     decision does        not conflict with     the   written order.    State v.


Hinds, 85 Wn.         App.   474, 486, 936 P. 2d 1135 ( 1997).           Furthermore, CrR 3. 3 does not require the


trial   court   to   enter written    findings   of   fact   or conclusions of     law.    Compare CrR 3. 3 with CrR


3. 5.   Even when a court rule requires written findings of fact and conclusions of law, the trial


court' s failure to enter written findings of fact and conclusions is not a fatal error provided that


the record is sufficient to allow us to review the alleged error. State v. Miller, 92 Wn. App. 693,

703,    964 P. 2d 1196 ( 1998),          review       denied, 137 Wn.2d 1023 ( 1999).                 Here, the record is


sufficient to allow us to determine whether the trial court abused its discretion when it granted


the State' s motion to continue.


          Strickland also argues that CrR 3. 3 must be strictly construed and, therefore, the trial

court    erred   by failing    to    make   specific    findings that ( 1) the continuance was required in the


administration of justice and ( 2) that the defendant would not be prejudiced by the continuance.

Strickland'     s argument     is   not persuasive.     Strickland cites State v. Kenyon, 167 Wn.2d 130, 136,


21.6P. 3d1024 ( 2009), for the              proposition       that CrR 3.   3   must   be strictly   construed.    However,


nothing in Kenyon stands for the proposition that it is reversible error for the trial court to fail to

make     specific findings regarding the              exact   language   within    the   rule.    Strickland has cited no


authority that requires the trial court to make specific findings, and we have found none. Instead,

the appropriate question is whether the trial court abused its discretion by granting the State' s

motion for a continuance. See Woods, 143 Wn.2d at 579.


          Strickland further argues that the trial court abused its discretion because it failed to make


an adequate inquiry into ( 1) why the casings were not sent for forensic testing until two weeks




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after   they   were collected, (   2) the procedures used by the laboratories " to determine whether the

labs do everything       possible    to   ensure   that tests   are performed   in   a   timely way,"   and (   3) the


likelihood that the tests    would produce material evidence.              Br. of Appellant ( Strickland) at 20.


Although this information may have been helpful to the trial court, this level of inquiry is not

necessary to determine whether the trial court' s decision was manifestly unreasonable.

          Here, the State moved for a continuance to determine whether fingerprint or DNA


evidence could be recovered from the shell casings found at the scene of the shooting.

Obviously, if Kerby' s or Strickland' s fingerprints or DNA had been found on the shell casings it

would be material evidence and this was clearly the State' s goal in obtaining forensic testing. In

addition, the State had spoken to both lab technicians and was able to give the court specific time


frames for the forensic testing to be         completed.        It was not manifestly unreasonable for the trial

court to grant the State' s motion for a continuance to obtain potentially material evidence,

especially when the State was able to provide a specific time frame in which the forensic testing

would be completed. Therefore, the trial court did not abuse its discretion, and it did not violate

the time for trial rules by granting the State' s motion for a continuance.

          3. Constitutionality of Accomplice Liability

          Strickland argues that the accomplice liability statute is unconstitutionally overbroad

because it impermissibly penalizes free speech in violation of the First and Fourteenth

Amendment.          We address Strickland' s challenge to the constitutionality of the accomplice

liability instruction because a charge based on an unconstitutional statute requires dismissal.

However, Strickland' s argument has already been addressed and rejected by Washington courts.




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          In State    v.   Coleman, 155 Wn.         App.   951, 960 -61, 231 P. 3d 212 ( 2010), review denied, 170


Wn.2d 1016 ( 2011),              Division One of this court rejected the argument that the accomplice


liability statute was impermissibly overbroad because the accomplice liability statute " requires

the criminal mens rea to aid or agree to aid the commission of a specific crime with knowledge

the   aid will     further the   crime... [    The statute' s] sweep avoids protected speech activities that are

not performed         in   aid of a crime      and   that only consequentially further the          crime."   In State v.


Ferguson, 164 Wn.           App.   370, 376, 264 P. 3d 575 ( 2011), review denied, 173 Wn.2d 1035 ( 2012),


we explicitly adopted Division One' s reasoning and held that the accomplice liability statute is

not    unconstitutionally        overbroad.         Coleman       and    Ferguson   are   controlling.   The accomplice


liability statute is not unconstitutionally overbroad. Accordingly, Strickland' s claim fails.

          4. Accomplice Liability Jury Instruction

          Strickland argues that there is insufficient evidence to support the jury' s guilty verdict.

Strickland concedes that there is sufficient evidence to support the jury' s verdict finding him

guilty as a principle, and therefore, there is sufficient evidence to support the jury' s verdict.

However, Strickland contends that there was insufficient evidence to support the jury' s verdict

finding him guilty under a theory of accomplice liability. Although Strickland alleges that this is

an    issue   of   sufficiency   of   the   evidence,   it is   not.    Rather, Strickland actually argues that the trial

court erred        by instructing     the   jury   on accomplice        liability. Accordingly, it will be addressed as

such.




          We review challenged jury instructions de novo. State v. Levy, 156 Wn.2d 709, 721, 132

P. 3d 1076 ( 2006).         Jury instructions are sufficient when, read as a whole, they accurately state




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the law, do     not mislead    the   jury,   and permit each     party to     argue   its theory   of   the   case.   State v.


Teal, 152 Wn.2d 333, 339, 96 P. 3d 974 ( 2004).                 Under RCW 9A.08. 020( 3)(           a), a person acts as




an accomplice if, with knowledge that it will promote or facilitate the commission of a crime, he

solicits, commands, encourages, or requests a person to commit a crime, or he aids or agrees to

aid such other person      in planning        or   committing    a crime.      Here, the jury instructions properly

stated   the law establishing        accomplice     liability. The jury instruction also allowed both sides to

argue    their theories   of   the   crime.    The State argued that Strickland created the confrontation


between the parties and escalated the confrontation to the point that a shooting occurred.

Strickland was able to argue that he had abandoned the confrontation and was leaving the scene;

therefore, he    was   merely   present at    the   scene of   the   crime.   Here, the accomplice jury instruction

was legally correct and the trial court did not err by instructing the jury on both principle and

accomplice liability.

          Although the trial court did not violate the time for trial rules, the accomplice liability

statute is constitutional, and the trial court did not err in giving an accomplice liability jury

instruction, the trial court did improperly admit Kerby' s statement without a proper limiting

instruction.      Therefore, Strickland' s convictions are reversed, and his case is remanded for


further proceedings consistent with this opinion.


B. KERBY' S CLAIMS


          1.   Kerby' s Request to Proceed Pro Se

          Kerby argues that the trial court erred by summarily denying his motion to proceed pro

se.   The State responds that because Kerby' s request was either equivocal or abandoned, the trial




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No. 42428 -241




court   did   not err      by   refusing to     allow      Kerby   to   proceed pro se.           At the hearing addressing this

issue, Kerby had the opportunity to articulate his request to proceed pro se, but he did not. There

are identifiable facts in the record that convince us Kerby' s request to proceed pro se was

equivocal.         Therefore, we affirm the trial court' s decision denying Kerby' s request to proceed

pro se.



          Criminal defendants have an explicit right to self representation under both the Sixth
                                                             -


Amendment of the United States Constitution and article I, section 22 of the Washington


Constitution. "          This right is so fundamental that it is afforded despite its potentially detrimental

impact       on   both the defendant        and      the   administration of       justice."       State v. Madsen, 168 Wn.2d


496, 503, 229 P. 3d 714 ( 2010) (               citing Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525,

45 L. Ed. 2d 562 ( 1975)). "             The    unjustified     denial    of   this [ pro   se]   right requires reversal."   State


v.   Stenson, 132 Wn.2d 668, 737, 940 P. 2d 1239 ( 1997) (                         citing State v. Breedlove, 79 Wn. App.

101, 111, 900 P. 2d 586 ( 1995)).


          We review the trial court' s_ decision denying a defendant' s right to proceed pro se for an

abuse of discretion. Madsen, 168 Wn.2d at 504. After a defendant has made a request to proceed


pro se, the trial court must first determine whether the request is unequivocal and timely.

Madsen, 168 Wn.2d               at   504 ( citing Stenson, 132 Wn.2d                at   737).     If the defendant' s request is


unequivocal and            timely, " the court must then determine if the defendant' s request is voluntary,

knowing,          and   intelligent, usually     by   colloquy."        Madsen, 168 Wn.2d at 504 ( citing Faretta, 422

U.S.    at    835).       Courts are required to indulge in every reasonable presumption against a

defendant'        s waiver of     the   right   to   counsel.      Madsen, 168 Wn.2d at 504 ( quoting In re Det. of




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Turay, 139 Wn.2d 379, 396, 986 P. 2d                 790 ( 1999)).      However, in Madsen, Division One of this


court stated,




                   This presumption does not give a court carte blanche to deny a motion to
           proceed pro  se.  The grounds that allow a court to deny a defendant the right to
           self representation are limited to a finding that the defendant' s request is
                -
           equivocal, untimely, involuntary or made without a general understanding of the
           consequences.     Such a finding must be based on some identifiable fact; the
           presumption in Turay does not go so far as to eliminate the need for any basis for
           denying a motion for pro se status.

Madsen, 168 Wn.2d at 504 -05.


           Here, Kerby wrote a letter to the court stating that he wanted the court to replace his

current counsel with specific counsel or allow him to represent himself. At the hearing on this

issue,   Kerby        spoke   to the   court about    his    request.
                                                                         Kerby specifically requested to keep two

attorneys,      but   asked   that the third be dismissed.          Kerby was silent as to his prior written request

to the court except for his specific statements as to which counsel he wanted dismissed.


           Given this      record,     Kerby' s   request    to   proceed pro     se   was   equivocal.   In Stenson, the


defendant made a motion to substitute counsel because of his dissatisfaction with his current

counsel' s      performance.         132 Wn.2d      at   734 -35.      When the trial court denied his motion to


substitute      counsel,      Stenson   made      a motion    to   proceed pro     se.   Stenson, 132 Wn.2d at 739.


Stenson told the court that he wanted to proceed pro se because he did not want to go to trial with


the   counsel    that he had      appointed.       Stenson, 132 Wn.2d        at   739 -40.    Our Supreme Court noted


that, "[ w]hile a request to proceed pro se as an alternative to substitution of new counsel does not


necessarily      make    the   request equivocal ...        such a request may be an indication to the trial court,

in light   of   the   whole record,     that the   request   is   not unequivocal."      Stenson, 132 Wn.2d at 740 -41




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 citing Hamilton         v.   Groose, 28 F. 3d 859, 862 ( 8th Cir. 1994); Adams v. Carroll, 875 F. 2d 1441,


1445 ( 9th Cir. 1989);          People v. Williams, 220 Cal. App. 3d 1165, 269 Cal. Rptr. 705, 707 -08

 1990)).    Such is the case here.


        Although Kerby made a request to proceed pro se, the request was an alternative to

obtaining substitute counsel. Kerby affirmatively agreed to keep two of his attorneys, Hatch and

Keehan.      As in Stenson, almost all of the discussion between Kerby and the trial court, both in

his letter and in his oral statement, concerned his request for different counsel rather than his


request to represent himself. 132 Wn.2d at 742. Kerby' s primary complaints were regarding the

attorney'   s   taking   vacation and not    communicating      with   him   enough.   Accordingly, based on the

record as a whole, Kerby' s request was equivocal, and he was not denied his Sixth Amendment

right to counsel.


        2. Accomplice Testimony Jury Instruction

        Kerby argues that the trial court erred by refusing to give the jury an instruction

cautioning them on the use of accomplice testimony. Kerby' s argument rests on the assumption

that Chrisman was an uncharged accomplice, and therefore, the trial court was required to


instruct the     jury   to treat her   testimony   with extreme caution.      Even assuming that Chrisman was

an uncharged accomplice, the facts of this case are such that it was not reversible error for the


trial court to fail to give a jury instruction on accomplice testimony because Chrisman' s

testimony was sufficiently corroborated.

           Washington courts have repeatedly expressed concern over the reliability of accomplice

testimony.       State    v.   Harris, 102 Wn.2d 148, 153, 685 P. 2d 584 ( 1984),            overruled on   other




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grounds     by        State     v.   Brown, 113 Wn. 2d 520, 782 P. 2d 1013 ( 1989). "                     A conviction may rest

solely upon the uncorroborated testimony of an accomplice only if the jury has been sufficiently

cautioned by the court to subject the accomplice' s testimony to careful examination and to regard

it   with great care and caution."              State   v.   Carothers, 84 Wn. 2d 256, 269, 525 P. 2d 731 ( 1974). In


Harris, our Supreme Court held,


           1) [       I] t is always the better practice for a trial court to give the cautionary
          instruction             whenever accomplice         testimony is introduced; ( 2) failure to give this
          instruction is always reversible error when the prosecution relies solely on
          accomplice testimony; and ( 3) whether failure to give this instruction constitutes
          reversible error when the accomplice testimony is corroborated by independent
          evidence depends upon the extent of corroboration.


102 Wn.2d             at   155.      Corroborating evidence is sufficient if it fairly connects the defendant with

the crime, and independent evidence is not needed to corroborate every part of the accomplice' s

testimony. State v. Calhoun, 13 Wn. App. 644, 648, 536 P.2d 668 ( 1975).

          Assuming, but not deciding, that Chrisman' s testimony would be considered accomplice

testimony, it would have been the better practice for the trial court to give the jury a cautionary
                  6
instruction.               However, independent evidence sufficiently connects the defendants with the

crime.     Therefore, it was not reversible error for the trial court to refuse to instruct the jury to

treat Chrisman'             s   testimony   with caution.      Independent evidence established that Strickland and


Kerby were at the bar and that they both engaged in a confrontation with Ivy and Savage.

Furthermore, Kerby' s own statements corroborate Chrisman' s assertion that at one point Kerby



6
     Kerby argues that Chrisman was an uncharged accomplice because Ivy testified that he heard
the    woman who was with                   Kerby   and   Strickland     yell, "[   S] hoot his   ass."    2 RP   at   134.   Taking
Ivy' s testimony as true, Chrisman encouraged the commission of the crime and could be charged
as an accomplice. See RCW 9A.08. 020.


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No. 42425 -8/
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had   a gun.    Based on all the other evidence presented at trial, the defendants were connected to


the crime without Chrisman' s testimony. Therefore, it was not reversible error for the trial court

to refuse to give the jury a cautionary instruction on accomplice testimony.

C.          PUBLIC TRIAL RIGHT


            Kerby alleges that the trial court violated his right to a public trial by holding portions of

jury selection in a side bar. We disagree.

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


Washington State Constitution               guarantee a       defendant the        right   to   a public   trial.    State v. Wise,


176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). We review alleged violations of the public trial right de


novo.       Wise, 176 Wn.2d at 9. The threshold determination when addressing an alleged violation

of   the   public   trial   right   is   whether   the proceeding       at   issue   even       implicates the      right.   State v.


Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012). In Sublett, our Supreme Court adopted a two -


part " experience           and   logic" test to        address    this issue: (     1)    whether the place           and process



historically    have been         open   to the   press and general public ( experience              prong), and ( 2) whether


the public access plays a significant positive role in the functioning of particular process in

question ( logic      prong).       176 Wn.2d      at   72 -73.    Both questions must be answered affirmatively to

implicate the public trial right. Sublett, 176 Wn.2d at 73.


            Kerby argues that the trial court violated his public trial right because the trial court

conducted the for -
                  cause and peremptory challenges portion of jury selection during a sidebar

conference.         Division Three of this court addressed this exact issue in State v. Love, 176 Wn.


App.       911, 915 -16, 309 P. 3d 1209 ( 2013).                  In Love, the     court   held that    neither "     prong of the




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No. 42428 -2 -II




experience and logic test suggests that the exercise of cause or peremptory challenges must take

place    in   public."       176 Wn.    App.     at   920.   The public trial right does not attach to the exercise of


challenges       during jury      selection.      Love, 176 Wn.          App.   at   920.      Accordingly, the trial court did

not violate Kerby' s public trial right and Kerby' s challenge fails.

D.        KERBY' s SAG


          1. Denial      of   Right to Counsel —Irreconcilable Conflict


          Kerby alleges that his right to counsel was violated because he had an irreconcilable

conflict with one of           his    appointed attorneys.        Here, the majority of facts Kerby uses to support

his    allegation      are    facts    outside    the   record    and,    thus,      we   do    not   consider   them.   State v.


McFarland, 127 Wn.2d 322, 338, 899 P. 2d 1251 ( 1995).                                    Based on the record before us on

appeal,        there     was     not     an    irreconcilable       conflict         between      Kerby      and   his   attorney.


          A defendant' s Sixth Amendment right to counsel is violated if the relationship between

attorney      and client      completely      collapses and      the trial   court refuses       to   substitute new counsel.   In


re    Pers. Restraint of Stenson, 142 Wn.2d 710, 722, 16 P. 3d 1 ( 2001).                               But there is a difference


between a complete collapse of the relationship or irreconcilable differences and a " mere lack of

accord."       State v. Cross, 156 Wn.2d 580, 606, 132 P. 3d 80 ( citing Morris v. Slappy, 461 U.S. 1,

13 - 14, 103 S. Ct. 1610, 75 L. Ed. 2d 610 ( 1983)),                          cert.    denied, 549 U.S. 1022 ( 2006).           A


complete collapse of the attorney and client relationship can exist when the defendant refuses to

cooperate or communicate with his attorney in any way. In re Stenson, 142 Wn.2d at 724 ( citing

Brown     v.   Craven, 424 F. 2d 1166 ( 9th Cir. 1970)).                  But a complete collapse can also exist when




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No. 42428 -2 -II



the   communications are quarrelsome,                  derogatory,          or   threatening. In re Stenson, 142 Wn.2d at

724 -25.


           Based on the record before us on appeal, Kerby cannot establish an irreconcilable

conflict.       Although Kerby did express dissatisfaction with his attorney, he never alleged a

complete        inability   to    communicate          with    his   attorneys.       When the trial court gave him an


opportunity to discuss the                 situation    with     his   attorneys,      Kerby responded with generalized

dissatisfaction       with    the        way his     case   was      progressing,      but he never alleged any severe

impediments to continuing the attorney                      client -
                                                                   relationship.          Therefore, nothing in the record

before us establishes there was a complete breakdown in attorney client relationship or that there

was an irreconcilable conflict. See State v. Varga, 151 Wn.2d 179, 200 -01, 86 P. 3d 139 ( 2004)


 defendant' s general dissatisfaction and distrust insufficient to warrant substitution of counsel).


           2. Ineffective Assistance of Counsel


           Kerby    makes        several    allegations     of   ineffective       assistance of counsel.     Specifically, he

states that counsel was ineffective for ( 1) failing to object to the admission of Kerby' s statement

to the   police, ( 2)   failing     to   obtain    the cautionary instruction for Chrisman'          s   testimony, ( 3) failing

to    sever   the trials,   and (   4)   failing   present expert      testimony. Kerby also alleges that, even if one

alleged instance of ineffective assistance of counsel was not prejudicial, he received " cumulative


error of      ineffective   assistance of counsel."            SAG     at   19.    Kerby' s ineffective assistance of counsel

claims lack merit.


           To prevail on an ineffective assistance of counsel claim, Kerby must show both deficient

performance and         resulting         prejudice.    Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct.




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No. 42428 -2 -II



2052, 80 L. Ed. 2d 674 ( 1984).                Counsel' s performance is deficient if it fell below an objective


standard of reasonableness.              Stenson, 132 Wn.2d             at   705.   Our scrutiny of counsel' s performance

is   highly   deferential;     we     strongly     presume reasonableness.               McFarland, 127 Wn.2d       at   335.   To


establish prejudice, a defendant must show a reasonable probability that the outcome would have

differed      absent    the deficient    performance.          State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816


 1987).        If an ineffective assistance of counsel claim fails to support a finding of either

deficiency or prejudice, it fails. Strickland, 466 U.S. at 697.

          First, Kerby alleges that counsel was ineffective for failing to object to the admission of

his    statement   to the     police.    But Kerby' s statement was admitted after the trial court held a CrR

3. 5   hearing     to    determine its admissibility.                  Accordingly, counsel' s performance cannot be

deficient for failing object to the admission of Kerby' s statement.

          Second, Kerby alleges that counsel was ineffective for failing to obtain an instruction

cautioning the         jury   about   Chrisman'      s   testimony. But defense counsel proposed this instruction.

Further, as we explained above, it was not error for the trial court to refuse to give the

instruction. Therefore, counsel' s performance was not deficient for failing to obtain a cautionary

instruction regarding Chrisman' s testimony.

          Third, Kerby alleges that defense counsel was ineffective for failing to object to the

State'   s motion       for joinder    and   for   failing   to file   a motion     to   sever   the trials. To show ineffective


assistance of counsel based on failure to make a motion to sever, Kerby must show that the

motion to sever would have been granted. State v. Standifer, 48 Wn. App. 121, 125 -26, 737 P. 2d

1308 ( 1987).           Kerby argues that he and Strickland had mutually antagonistic defenses that




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No. 42428 -2 -II



required separate     trials.    Specifically, Kerby argues that his defense implies the Strickland fired

the gun, and Strickland' s defense implies that Kerby fired the gun. The record shows that Kerby

and Strickland did not have mutually antagonistic defenses sufficient to warrant separate trials.

See State   v.   Grisby,   97 Wn.2d 493, 508, 647 P. 2d 6 ( 1982) ( in a trial where the sole disagreement


was who killed which victim the prejudice by the antagonistic defenses was not sufficient to

require separate     trials).   Therefore, defense counsel' s performance was not deficient for failing to

make a motion to sever the trials.



          Fourth, Kerby alleges that defense counsel was ineffective for failing to obtain and

present expert      testimony.? Generally, whether to call a witness is a matter of legitimate trial

tactics   and will not support a claim of       ineffective   assistance of counsel.    State v. Maurice, 79


Wn.   App.   544, 552, 903 P. 2d 514 ( 1995).         Failure to provide expert testimony has been held

deficient only where the expert was necessary to explain something a lay witness could not. See

Maurice, 79 Wn.        App.     at   552; Thomas, 109 Wn.2d     at   231 -32.   Kerby' s proposed expert, Dr.

Loftus, would have testified about the effects of alcohol on eyewitness identification and recall.

This expert testimony does not rise to the level of being necessary for Kerby' s defense, and

defense counsel was not deficient for failing to obtain or present this expert testimony.

          Finally, because counsel' s performance was not deficient there can be no cumulative

prejudice    from   counsel' s   ineffectiveness.   Kerby has failed to meet his burden to prevail on his

ineffective assistance of counsel claims.




7 We also note that Strickland attempted to introduce Dr. Loftus' s testimony, but the trial court
excluded it.



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        3. Prosecutorial Misconduct


        Kerby alleges that the prosecutor engaged in misconduct by failing to disclose a deal

made with    Chrisman in        exchange   for her testimony.          This allegation rests on facts outside the


record on appeal,     and    cannot   be   reviewed on      direct     appeal.   McFarland, 127 Wn.2d at 338.


Therefore, we do not address Kerby' s prosecutorial misconduct claim.

        We reverse Strickland' s conviction because the trial court erred by failing to give a

proper limiting instruction regarding Kerby' s statements and remand for further proceedings

consistent with    this   opinion.    Kerby   has   not   identified   a reversible error.   Therefore, we affirm


Kerby' s conviction.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                                       ee,

We concur:




                                                           28
