                                                                                                     FILED
                                                                                              COURT OF APPEALS
                                                                                                   DIVISION II
                                                                                            2015 FEB 18
                                                                                                        MI 9: 16
                                                                                            STA
    IN THE COURT OF APPEALS OF THE STATE OF WASIII

                                                  DIVISION II

 STATE OF WASHINGTON,                                                           No. 44972 -2 -II


                                    Respondent,


        v.



 AGYEI JUMAANE MCDANIEL,                                               PART PUBLISHED OPINION


                                    Appellant.


       WoRSwIcK, J. —        Agyei McDaniel appeals his convictions for second degree murder and


second degree unlawful possession of a firearm. He argues, among other things, that the felony

murder statute is ambiguous regarding whether assault is a predicate offense and therefore the

rule of lenity requires his conviction be reversed. In the published portion of this opinion, we

hold that the felony murder statute is not ambiguous, and that it clearly includes a deadly assault

as a predicate offense. In the unpublished portion of the opinion, we disagree with McDaniel' s

remaining assignments of error. Accordingly, we affirm.

                                                          FACTS


       McDaniel shot and killed Patrick Nicholas. Testimony at trial showed that the two men

were close friends.


        McDaniel rented a large storage unit in Tacoma, and Nicholas' s family kept some

belongings in it in exchange for a small portion of the monthly fee. Being late in payments,

McDaniel     was required   to   vacate   the   unit on   December   4, 2012.
No. 44972 -2 -II



         On the afternoon of December 4, McDaniel, McDaniel' s wife Angela, 1 Nicholas, and

Nicholas' s wife Korrin Tennyson went to the storage unit. At the storage unit, McDaniel and

Nicholas argued with each other. McDaniel felt nervous during the argument because Nicholas

seemed extremely angry, and was atypically keeping his hands in his pockets as he talked.

McDaniel knew that Nicholas often carried a gun, and McDaniel thought Nicholas might be


pointing a gun at McDaniel through Nicholas' s pocket. McDaniel also thought Nicholas might

be   under   the influence of   PCP2 - dipped cigarettes, which McDaniel knew Nicholas sometimes


used.



         Nicholas began to      advance on     McDaniel, saying " What   you gonna   do ?" 6 Verbatim


Report   of   Proceedings ( VRP)    at   690 -91.   McDaniel saw that Nicholas had one hand fully in one

pocket and the other hand halfway in another pocket. McDaniel could see something in

Nicholas' s hand. Nicholas continued to advance on McDaniel, who thought Nicholas was either


going to pistol -whip or shoot him. McDaniel then drew a gun and shot Nicholas twice.

         McDaniel and Angela left the storage facility, returned home, packed some bags, and

drove north. They stayed in a motel in Arlington overnight, but returned to Tacoma the

following day, where McDaniel surrendered to authorities.

         Nicholas died at a hospital the day after the shooting. The medical examiner determined

the cause of death to be a penetrating gunshot wound to the head around the front of Nicholas' s

scalp. Nicholas also suffered a nonfatal gunshot wound to his shoulder.


1 We refer to Angela McDaniel by her first name for clarity. No disrespect is intended.

2 PCP, or phencyclidine, is a recreational street drug. State v. Baity, 140 Wn.2d 1, ' 5, 991 P. 2d
1151 ( 2000).




                                                          2
No. 44972 -2 -II




         The State charged McDaniel in an amended information with one count of second degree


murder with intent to cause Nicholas' s death3 and, in the alternative, second degree felony

murder while committing or attempting to commit second degree assault.4 The State also
charged him with second degree unlawful possession of a firearm.5

         The jury found McDaniel guilty of second degree felony murder with assault as the

predicate felony and unlawful possession of a firearm. By a special interrogatory, the jury found

that McDaniel did not intentionally kill Nicholas but rather found him guilty of felony murder in

the course of and in furtherance of assault.

                                                  ANALYSIS


         McDaniel argues that because the felony murder statute is ambiguous with regard to

whether an assault causing death is a predicate offense, the rule of lenity applies and requires his

conviction be reversed. We disagree with McDaniel that the felony murder statute is ambiguous.

Its plain language clearly includes assault as a predicate offense.

                                            I. STANDARD OF REVIEW


          We review interpretation of a statute de novo. State v. Bunker, 169 Wn.2d 571, 577 -78,

238 P. 3d 487 ( 2010). We endeavor to effectuate the legislature' s intent. 169 Wn.2d at 577 -78.


First, we look to the plain language of the statute: if it is unambiguous, then the plain meaning

governs.    State   v.   Bostrom, 127 Wn.2d 580, 586 -87, 902 P. 2d 157 ( 1995).   If the statute is




3 RCW 9A.32. 050( 1)( a).

4 RCW 9A.32. 050( 1)( b).

5
    RCW 9. 41. 040( 2)(    a).   This provision was amended in 2014, but the amendments do not affect
our analysis.




                                                       3
No. 44972 -2 -II




ambiguous, we apply traditional statutory interpretation rules to determine its meaning. State v.

Evans, 177 Wn.2d 186, 192 -94, 298 P. 3d 724 ( 2013).                The rule of lenity applies only if the plain

language of the statute is ambiguous and traditional statutory interpretation rules do not help

clarify it. Evans, 177 Wn.2d 192 -94.

               II. STATUTE UNAMBIGUOUSLY INCLUDES ASSAULT AS PREDICATE OFFENSE


         McDaniel argues that the felony murder statute is ambiguous with regard to whether

assault is a predicate offense when the assault is the same act resulting in the death. He argues

that the statute could be read to apply only to those assaults separate from the act resulting in

death. We disagree.


         Division One of this court has rejected an argument identical to McDaniel' s. State v.

Gordon, 153 Wn.         App.   516, 527 -29, 223 P. 3d 519 ( 2009), rev 'd on other grounds, 172 Wn.2d


671, 260 P. 3d 884 ( 2011).        The Gordon court concluded that RCW 9A.32. 050( 1)( b) was not

ambiguous.      153 Wn. App. at 529. We follow the holding of Gordon. The statute is not

ambiguous and a plain language reading of the statute defeats McDaniel' s argument.

         RCW 9A.32.050( 1)( b) provides that a person commits felony murder if he or she

 commits or attempts        to   commit   any   felony, including assault ... and, in the course of and in

furtherance of such crime or in immediate flight therefrom, he or she, or another participant,

causes   the   death   of a person other   than   one of   the   participants. ". (Emphasis added.)   This statute


unambiguously singles out assault as a predicate offense.

         McDaniel urges this court to hold that the " in course of and in furtherance of' language

demonstrates that the legislature intended only separate, non -fatal assaults to be predicate

offenses. Br. of Appellant at 17. But this is an illogical reading of the statute: it ignores the fact


                                                             4
No. 44972 -2 -II




that a death cannot occur " in furtherance of' a separate assault that does not cause the death.


Were McDaniel correct, the phrase " including assault" would encompass only assaults which

were non -deadly by themselves, but nonetheless caused deaths to occur in furtherance of these

assaults. McDaniel provides no examples of a factual scenario that would fit this reading. We

avoid construing statutes in a way that produces an absurd result, because we presume that the

legislature does not intend absurd results. State v. Engel, 166 Wn.2d 572, 579, 210 P. 3d 1007


 2009).     We therefore presume the legislature did not intend to include only assaults that do not

cause a death, but where a death results in furtherance of assaults as well.


           Moreover, McDaniel' s reading ignores the fact that the legislature explicitly added the

words " including assault" to the statute after our Supreme Court held that assault was not a

predicate offense.          In   re   Pers. Restraint ofAndress, 147 Wn.2d 602, 610, 56 P. 3d 981 ( 2002). In


adding this phrase the legislature found

           that the 1975 legislature clearly and unambiguously stated that any felony,
           including   assault, can        be   a predicate offense    for    felony   murder....   The legislature
           does not agree with or accept the court' s findings of legislative intent in State v.
           Andress ...       and reasserts that assault has always been and still remains a predicate
           offense for felony murder in the second degree.

LAws OF 2003,         ch.   3, §      1; In re Pers. Restraint ofBowman, 162 Wn.2d 325, 335, 172 P. 3d 681

 2007) ( "[ F] ollowing          our decision in Andress, the legislature amended the second degree felony

murder statute, effective February 12, 2003, to clarify that assault is included as a predicate

crime under     the   second          degree   felony   murder statute. ");   Gordon, 153 Wn. App. at 527 -29. We

do   not   delete language from           an unambiguous statute.        State    v.   J.P., 149 Wn.2d 444, 450, 69 P. 3d


318 ( 2003).     We must therefore give effect to the plain language " including assault."




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No. 44972 =
          2 -II




        Because the statute is unambiguous under traditional rules of statutory interpretation, we

do not apply the rule of lenity. City ofSeattle v. Winebrenner, 167 Wn.2d 451, 462, 219 P. 3d

686 ( 2009). Therefore, we affirm McDaniel' s conviction.


        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 in accordance with RCW 2. 06. 040, it is so ordered.


        McDaniel also argues that his convictions for second degree murder and second degree


unlawful possession of a firearm should be reversed because ( 1) the breadth of prosecutorial


discretion when charging felony murder based on assault violated McDaniel' s equal protection

rights, (   2) the trial court violated McDaniel' s right to present a defense when it excluded expert


gang testimony, and ( 3) McDaniel' s trial counsel was ineffective because she allowed the

prosecution to implicate McDaniel in an otherwise inadmissible prior offense during

impeachment of a witness. We disagree.


                                         ADDITIONAL FACTS


            McDaniel asserted the defense of self -defense. To support his defense, he sought to

introduce general evidence about gangs through an expert, Tacoma Police Detective John


Ringer. Before trial, McDaniel submitted a summary of his proposed expert testimony about

gangs. He planned to have Detective Ringer provide general information about gangs and


specific information about the Tacoma Hilltop Crips. McDaniel wanted Detective Ringer' s

testimony to show the jury that street gangs can have many purposes, including violence for

violence' s sake, arguing that this information was outside the jury' s common experience. In

addition, McDaniel also proposed to introduce evidence that Nicholas was a member of the




                                                     6
No. 44972 -2 -II



Hilltop Crips. McDaniel argued that this evidence would demonstrate one cause of McDaniel' s

fear of Nicholas and would also help explain that McDaniel fled north after the shooting to get

out of Hilltop Crip territory.

        The State moved to exclude Detective Ringer' s testimony as well as evidence of

Nicholas' s gang affiliation, apart from evidence McDaniel might offer of his own knowledge.

The trial court granted the State' s motion to exclude Detective Ringer' s testimony and evidence

of Nicholas' s gang involvement, but the court ruled that McDaniel could testify regarding his

personal knowledge about Nicholas. Despite this ruling, McDaniel did not testify at trial about

his knowledge of Nicholas' s gang affiliation.

        McDaniel testified that he and Angela had been together for 22 years, and that their


oldest son was 20 years old. Angela also testified at trial. On cross -examination, the State asked


Angela about some statements she had made during the police investigation that differed from

her trial testimony. In response to questioning about why her impressions of events had

changed, Angela said that she was traumatized and terrified when she was questioned shortly


after the incident, so her memory was hazy. On redirect examination, McDaniel asked Angela:

 Have   you   been through anything like this before ?" to   which   Angela   responded, "   No, nothing

like this." 6 VRP at 852.


        Outside the presence of the jury, the State argued that this question and answer had

opened the door to impeachment based on a prior violent offense by McDaniel. The State noted

that Angela had testified that she had never been through anything like the shooting here, when

in fact in 1996 McDaniel had shot at a group of people in Angela' s apartment, striking one man

in the head. Angela had been a crucial witness in that investigation. The State argued that




                                                    7
No. 44972 -2 -II




Angela' s trial testimony was therefore a lie, and opened the door to questioning about the 1996

incident. The trial court agreed with the State that the door had been opened. The State said it

did not intend to elicit testimony implicating McDaniel in the 1996 shooting, because it was

Angela' s credibility, not McDaniel' s criminal history, at issue.

           The trial    court agreed with   the State.   McDaniel'       s counsel yielded,     saying: " Well, I agree


with the assessment that I have heard this morning. My concern was that [ Angela] should be

impeached in       regard   to her experiences, but      not   in   regard   to any   connection with   my   client."   7


VRP   at   873.    Neither party discussed the issue of the jury independently speculating that

McDaniel might have been Angela' s boyfriend, and therefore the shooter, in 1996.


           After the jury returned to the courtroom, the State asked Angela if she had been through

anything like this before. When she again denied it, the State asked whether she had been a

witness to a shooting by the man she was dating in 1996. Although Angela at first denied that

she had witnessed such a shooting, she ultimately agreed that she had given a statement about a

1996 shooting to the police and that this made her a witness. McDaniel did not object.

                                            ADDITIONAL ANALYSIS


                  III. EQUAL PROTECTION AND DUE PROCESS: PROSECUTORIAL DISCRETION

           McDaniel argues that the State' s broad prosecutorial discretion to charge either voluntary

manslaughter or second degree murder for the same conduct violates his equal protection or due

                    6
process rights.         U. S. CONST.   amend.   XIV; WASH. CONST.             art.   I, § 12. We disagree.




6 In his brief, McDaniel cites generally the Fourteenth Amendment to the United States
Constitution       and article   I,. § 12, of the Washington Constitution. His argument focuses
exclusively on equal protection.



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No. 44972 -2 -II



A.        Standard ofReview

          We review constitutional challenges de novo. State v. Vance, 168 Wn.2d 754, 759, 230


P. 3d 1055 ( 2010). When an appellant alleges an equal protection violation, this court must


determine    which   level   of   scrutiny   applies.    Schatz         v.   State   Dep' t ofSoc. &     Health Servs., 178


Wn.   App.   16, 24, 314 P. 3d 406 ( 2013),           review    denied, 180 Wn.2d 1013( 2014). Where the


alleged discrimination affects a suspect classification such as race, or where it burdens

fundamental rights or liberties, it will be subject to strict scrutiny. State v. Hirschfelder, 170

Wn.2d 536, 550, 242 P. 3d 876 ( 2010).                Intermediate scrutiny applies where a law affects a

semisuspect class, such as gender, or               burdens    an   important         right.      170 Wn.2d at 550. Where

neither a suspect nor semisuspect class is involved, and where fundamental and important rights

are not   burdened, the lowest level         of     scrutiny   applies.        170 Wn.2d at 550. This is rational basis


review.    170 Wn.2d at 550. We use rational basis review to consider whether the differential


treatment of offenders violates equal protection. State v. Armstrong, 143 Wn. App. 333, 339,

178 P. 3d 1048 ( 2008).


          Our Supreme Court has articulated another test for reviewing equal protection challenges

to the   felony murder   statute.     State    v.   Leech, 114 Wn.2d 700, 711, 790 P. 2d 160 ( 1990). Under


this second test, we consider whether " the crimes that the prosecuting attorney has the discretion

to   charge require proof of       different   elements."        114 Wn.2d            at   711.    Under this second framework,


equal protection is violated only when two statutes criminalize the same acts, but penalize them

differently.   114 Wn.2d at 711.




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No. 44972 -2 -II



B.        Rational Basis Exists for Felony Murder Based on Assault

          McDaniel argues that, with assault as a predicate offense for felony murder, the class of

defendants who commit second degree assault resulting in death receive different treatment.

Some are charged with second degree murder (felony murder), while others are charged with

voluntary manslaughter. McDaniel argues that this distinction violates the equal protection and

fundamental fairness principles of both the federal and state constitutions.

          Under rational basis review, the appellant bears the burden of demonstrating that the law

does not bear a rational relationship to any legitimate state interest. Hirschfelder, 170 Wn.2d at

551.    In Armstrong, Division One of this court addressed this question and held that the policy

choice to include assault as a predicate offense was rationally related to a legitimate state

interest. 143 Wn. App. at 340. As discussed below, we agree with the holding and rationale of

Division One.


          Under Hirschfelder, McDaniel must show that the differential treatment of people who


commit an assault resulting in death bears no rational relation to any legitimate state interest.

170 Wn.2d      at   551.   McDaniel cannot carry this burden. The felony murder statute seeks to

     p] unish, under the applicable murder statutes, those who commit a homicide in the course [ of]
and    in furtherance 'of   a   felony."   LAws OF 2003,    ch.   3, §   1; Armstrong, 143 Wn. App. at 339.

This statute is rationally related to the legitimate interest of "punishing those who commit a

homicide in the course of and in furtherance of a felony in the same manner as those who intend

to kill."   Armstrong, 143 Wn. App. at 340. McDaniel' s argument fails, because the felony
murder statute passes rational         basis   review.   143 Wn. App. at 340.




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No. 44972 -2 -II



C.      No Equal Protection Violation Because Potential Charges Had Different Elements

         McDaniel' s argument also fails under the second test, which considers whether the two


statutes have the same elements but penalize the same act differently. The elements of felony

murder are different from the elements of manslaughter. RCW 9A.32. 050( 1)( b);

9A. 32. 060( 1)(    a);   see Leech, 114 Wn.2d at 712. The elements of felony murder as charged here,

where assault is the predicate offense, are intentionally assaulting another either by recklessly

inflicting substantial bodily harm or with a deadly weapon, and causing the victim' s death in the

course of and       in furtherance   of   the assault. RCW 9A.36. 021; 9A. 32. 050( 1)(      b); Armstrong, 143

Wn.   App.   at    341.    The elements of first degree or voluntary manslaughter are recklessly causing

another person' s         death. RCW 9A.32. 060( 1)(       a).   Therefore, these statutes require different


mental states: second degree assault, and therefore felony murder as charged here, requires an

intentional assault, whereas first degree manslaughter requires a reckless state of mind. Leech,


114 Wn.2d at 712; Armstrong, 143 Wn. App. at 341 -42. Because these crimes do not have the

same elements, the authority of the prosecuting attorney to charge the defendant•with felony

murder does not violate equal protection. Leech, 114 Wn.2d at 712; State v. Wanrow, 91 Wn.2d

301, 312, 588 P. 2d 1320 ( 1978);           Armstrong, 143 Wn. App. at 342.

                      IV. RIGHT To PRESENT A DEFENSE: VICTIM' S GANG AFFILIATION

         McDaniel next argues that the trial court violated his right to present a defense when it

ruled that he could not present expert testimony about gangs. We disagree.

A.       Standard ofReview

         The United States and Washington Constitutions guarantee the right to present a defense.

U. S. CONST.       amend.     VI; WASH. CONST.      art.   I, § 22; State v. Wittenbarger, 124 Wn.2d 467, 474,




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No. 44972 -2 -II



880 P. 2d 517 ( 1994). But this constitutional right is not absolute and does not extend to


irrelevant or inadmissible evidence. State v. Maupin, 128 Wn.2d 918, 925, 913 P. 2d 808 ( 1996).


We review a trial court' s rulings on evidentiary matters for an abuse of discretion so long as the

trial   court   properly   applies   the   rules of evidence.       State v. Aguirre, 168 Wn.2d 350, 362 -63, 229

P. 3d 669 ( 2010); State v. Foxhoven, 161 Wn.2d 168, 174, 163 P. 3d 786 ( 2007).


          To be admissible, evidence must be relevant. ER 402. Evidence is relevant if it has " any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or          less   probable   than it   would   be   without   the   evidence."      ER 401.    For


expert    testimony   to   be   admissible under     ER 702,    testimony      must    be ( 1)   by   a qualified expert, ( 2)




based on an explanatory theory generally accepted in the scientific community, and ( 3) helpful to

the trier of fact. State v. Rafay, 168 Wn. App. 734, 784, 285 P. 3d 83 ( 2012).

B.         Trial Court Did Not Err by Excluding Irrelevant Expert Testimony

           McDaniel argues that the trial court violated his right to present a defense when it


declined to allow expert testimony about gangs from Detective Ringer. We disagree because the

evidence was irrelevant, and the right to present a defense does not extend to irrelevant evidence.




7 In State v. Aguirre, our Supreme Court held that the scope of the right to present a defense
  does not extend to the introduction of otherwise inadmissible evidence. The admissibility of
evidence under       the   rape shield statute,    in turn, ` is within the sound discretion of the trial court. "'
168 Wn.2d 350, 3663, 229 P. 3d 669 ( 2010) ( citations                    omitted) (   quoting State v. Hudlow, 99
Wn.2d 1, 17, 659 P. 2d 514 ( 1983)).In State v. Jones, 168 Wn.2d 713, 719, 230 P. 3d 576 ( 2010),
decided in the same term as Aguirre, the court held that the standard of review is de novo
whenever a        defendant     alleges a   Sixth Amendment         violation.    See also State v. Iniguez, 167
Wn.2d 273, 280 -81, 217 P. 3d 768 ( 2009).              We follow Aguirre, recognizing that the Sixth
Amendment right to present a defense does not extend to inadmissible evidence, and we review a
trial court' s ruling on admissibility of evidence for an abuse of discretion.


                                                               12
No. 44972 -2 -II



        Under ER 702, expert testimony must be helpful to the trier of fact to be admissible.

Rafay, 168 Wn. App. at 784. Expert testimony is only helpful if it is relevant. In re Pers.

Restraint of Morris, 176 Wn.2d 157, 169, 288 P. 3d 1140 ( 2012). To be relevant, expert


testimony must have the tendency to make a fact of consequence to the trial' s outcome more or

less probable. ER 401; State v. Atsbeha, 142 Wn.2d 904, 918, 16 P. 3d 626 ( 2001).


        McDaniel challenges only the trial court' s exclusion of Detective Ringer' s expert

testimony. Although the trial court stated it would allow McDaniel to testify regarding his

knowledge of Nicolas' s gang involvement, McDaniel did not do so. Thus, he presented no

evidence that Nicholas was a member of a gang generally or of the Hilltop Crips specifically.

Without this evidence, Detective Ringer' s testimony could not make any fact of consequence to

McDaniel' s trial more or less probable. General information about gangs would not make it


more or less likely that McDaniel acted in self -defense when he shot Nicholas. Detective Ringer

could not, and did not plan to, testify about McDaniel' s state of mind or Nicholas' s affiliation

with any gang. His testimony could not make it more or less probable that McDaniel reasonably

feared Nicholas.


        Because Detective Ringer' s proposed testimony did not address any specific facts about

McDaniel' s fear of Nicholas, it was irrelevant to McDaniel' s self -defense claim. Therefore, the


trial court did not err in refusing to admit Detective Ringer' s testimony.

                             V. INEFFECTIVE ASSISTANCE OF COUNSEL


        Finally, McDaniel argues that his trial counsel was ineffective for failing to object to

damaging propensity evidence. He argues that impeachment evidence against his wife

necessarily informed the jury of an otherwise- inadmissible prior bad act ( that he had shot


                                                  13
No. 44972 -2 -II



someone        in 1996), and that his trial counsel should have objected to the impeachment. We


disagree.


A.        Standard ofReview

             A claim of ineffective assistance of counsel is a mixed question of law and fact we

review    de   novo.   State      v.   Sutherby,   165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).    A showing of

ineffective assistance of counsel requires the appellant to demonstrate both that ( 1) his counsel' s


performance was deficient and ( 2) this deficiency prejudiced his case. Strickland v. Washington,

466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Hendrickson, 129 Wn.2d


61, 77 -78, 917 P. 2d 563 ( 1996).              The appellant' s failure to establish either prong is fatal to an

ineffective assistance of counsel claim. Strickland, 466 U. S. at 700.


             Where the appellant claims ineffective assistance based on his trial counsel' s failure to

object, the appellant must also show that such an objection, if made, would have been successful.

State   v.   Gerdts, 136 Wn.           App.   720, 727, 150 P. 3d 627 ( 2007).   We strongly presume that counsel

was effective.      State    v.   Grier, 171 Wn.2d 17, 42, 246 P. 3d 1260 ( 2011). "        To rebut this


presumption, the defendant bears the burden of establishing the absence of any ` conceivable

legitimate tactic explaining             counsel' s performance. "'    Grier, 171 Wn.2d at 42 ( quoting State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).


B.           Trial Counsel Not Deficient


             We view trial counsel' s decision of whether and when to object as a " classic example of


trial tactics."     State   v.   Madison, 53 Wn.       App.   754, 763, 770 P. 2d 662 ( 1989).   Counsel is not


deficient for failing to object to a proper proceeding at trial. See Gerdts, 136 Wn. App. at 730.

     Only in egregious circumstances, on testimony central to the State' s case, will the failure to


                                                                14
No. 44972 -2 -II



object constitute   incompetence   of counsel   justifying   reversal. '    State v. Johnston, 143 Wn. App.

1, 19, 177 P. 3d 1127 ( 2007) ( quoting Madison, 53 Wn.         App.   at   763).   It is a legitimate trial tactic


to forego an objection in circumstances where counsel wishes to avoid highlighting certain

evidence. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 714, 101 P. 3d 1 ( 2004).

        On May 15, 2013, the jury heard McDaniel testify that he had been with Angela for 22

years and that their oldest son was 20. Then, on May 20, the State cross -examined Angela about

having witnessed the man she was dating shoot someone in 1996. The State was attempting to

impeach her credibility with this fact, because she had previously testified on redirect

examination that she had never been through an experience like McDaniel shooting Nicholas.

        1.   Conceivable Trial Tactic


        McDaniel argues that his trial counsel was deficient because she failed to object to


impeachment evidence that potentially implicated McDaniel in a shooting from 1996. But there

is a conceivable legitimate trial tactic underlying McDaniel' s counsel' s performance, and so it

was not deficient.


        McDaniel argues that the State violated the trial court' s ruling regarding the

impeachment' s scope, a contention we disagree with.8 But even if the prosecutor' s questioning

exceeded the boundaries set by the trial court, McDaniel' s trial counsel would likely have

avoided objecting in front of the jury. To object at that time would have been to call more




8 McDaniel argues that the prosecutor " assured the court he would not elicit testimony that
implicated McDaniel in the prior event, [ but] failed to keep that information from the jury."                 Br.

of Appellant at 36. But the record shows that the prosecutor diligently kept to the agreed
boundaries of asking Angela whether she had been a witness in an investigation about a shooting
by a man she was dating in 1996, without adding any other information implicating McDaniel.

                                                      15
No. 44972 -2 -II




attention to Angela' s testimony, which would possibly invite the jury to consider otherwise -

incidental facts with more scrutiny. See Davis, 152 Wn.2d at 714. Therefore, McDaniel' s trial

counsel' s performance was not deficient for failing to object to the State' s impeachment of

Angela.


             2. Objection Would Not Have Been Sustained

             Because McDaniel bases his argument on trial counsel' s failure to object, McDaniel must


also show that such an objection would have succeeded had it been made. Gerdts, 136 Wn. App.

at 727. Here, an objection would not have succeeded because the State presented admissible

impeachment evidence.


               W]hen a party opens up a subject of inquiry on direct or cross -examination, he

contemplates that the rules will permit cross -examination or redirect examination, as the case


may be, within the scope of the examination in which the subject matter was first introduced."
State   v.   Gefeller, 76 Wn.2d 449, 455, 458 P. 2d 17 ( 1969).   Thus, when a.party opens the door to

impeachment evidence by initiating exploration of a topic, the impeachment evidence is

admissible so long as it is within the scope that was first introduced.

             Here, McDaniel opened the door to questioning about Angela' s previous experience with

a man she was romantically involved with shooting someone. McDaniel' s trial counsel elicited

testimony from Angela that she had never been through something like the shooting before, to

explain Angela' s inconsistent memories about the shooting of Nicholas. By introducing the

subject of inquiry whether Angela truly had never been through something like this before,

McDaniel permitted the State to explore and impeach Angela' s response on the same topic.


Therefore, an objection to this line of questioning would not have been sustained, because



                                                     16
No. 44972 -2 -II



McDaniel opened the door to it and the State' s impeachment evidence was directly within the .

scope of Angela' s earlier statement that she had never been through something like this before.

The State merely showed that she had.

        Because there was a conceivable legitimate trial tactic in McDaniel' s trial counsel' s


failure to object during cross -examination, and because such an objection would not have

succeeded, McDaniel cannot overcome the strong presumption that his trial counsel was

effective.   State   v.   McLean, 178 Wn.   App.   236, 247, 313 P. 3d 1181 ( 2013), review denied, 179


Wn.2d 1026( 2014).


        To conclude, we hold that the felony murder statute is not ambiguous. We further hold

that McDaniel' s equal protection rights were not violated by the breadth of prosecutorial

discretion, the trial court did not violate McDaniel' s right to present a defense when it excluded


expert gang testimony, and McDaniel' s trial counsel was not ineffective. We affirm.




 We concur:




                           A.C.T.

   44001416: le
 Melnick, J.
                   4-




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