IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal Restraint No. 84930-1-I Petition of
MARTY L. KIME, UNPUBLISHED OPINION
Petitioner.
BOWMAN, A.C.J. — Marty Kime seeks relief from his judgment and
sentence through this personal restraint petition (PRP). He argues (1) his trial
counsel was ineffective by not requesting limiting instructions for certain gang-
related evidence, (2) his appellate counsel was ineffective by not raising that
claim on appeal, and (3) the trial court erred by failing to give a limiting instruction
about the gang-related evidence at the State’s request. We disagree and deny
his PRP.
FACTS
On the afternoon of April 16, 2015, Lisa Lynch was driving home from
work in a Chevrolet (Chevy) Impala with her partner, Martrice Grant, in the
passenger seat and their one-year-old daughter, Malijha Grant, strapped into her
car seat in the backseat. They drove to a Kent shopping complex and stopped at
CVS, Safeway, and a tobacco shop, then headed home. As they neared their
apartment in Kent, Lynch heard gunshots. Martrice1 grabbed Lynch’s head and
1 We refer to Martrice Grant and Malijha Grant by their first names for purposes of clarity and mean no disrespect by doing so. No. 84930-1-I/2
told her to “duck down.” Then he grabbed the steering wheel and ran the car
onto a curb. When Lynch tried to raise her head, she saw a “dark car, four
doors[,] with tinted windows” and a unique “oval shape” next to them. The front
passenger window was down, and Lynch saw two men inside and a black
handgun pointed out the window. Lynch heard a second round of gunshots and
then the shooter’s car quickly drove south.
Lynch checked on Malijha and saw that she had been shot in the head
and was bleeding from her temple, above her right ear. Lynch and Martrice
“panicked” and Lynch started “screaming for help.” Martrice took Malijha’s car
seat out of the car and a bystander began CPR2 until police arrived. An
ambulance took Malijha to Harborview Medical Center. While at the hospital,
detectives learned that Martrice had ties to Deuce 8, a gang from Seattle’s
Central District that had conflict with another local gang, Low Profile. So, the
detectives thought that the shooting may have been gang related.
Two days after the shooting, on April 18, 2015, Malijha died. Dr. Richard
Harruff of the King County Medical Examiner’s Office performed Malijha’s
autopsy. He determined that a bullet went through Malijha’s brain and killed her.
He recovered the bullet from the left side of Malijha’s scalp.
The officers who had investigated the scene after the shooting collected
eight .40 caliber Smith & Wesson shell casings. They entered the casings into
the National Integrated Ballistics Information Network (NIBIN) to compare them
to casings from other shootings. Detectives got two NIBIN “hits” on the casings.
2 Cardiopulmonary resuscitation.
2 No. 84930-1-I/3
The first database hit was a preliminary match to casings found at the scene of a
shooting on March 23, 2015, in south Seattle. Detectives looked into that
shooting but discovered nothing connecting it to Malijha’s murder. The second
NIBIN hit matched casings found at a shooting in the Central District on April 15,
2015, the day before Malijha was shot. Police connected the April 15 shooting to
two teenagers, Vyshawn Warr and Abdifatah Mohamed. Both were affiliated with
Low Profile. Detectives did not find evidence linking Warr or Mohamed to
Malijha’s death but they both became persons of interest.3
Detectives also learned that on April 17, 2015, the day after Malijha’s
murder, Low Profile member Jean Paul Mitchell-Jones was shot in Kent.
Mitchell-Jones also became a person of interest. By April 20, 2015, there were
“three persons of interest who were Low Profile associates.” Police determined
they needed to focus their investigation of the April 16 shooting on people
affiliated with Low Profile.
Detectives also tried to identify the shooter’s car. Surveillance images
showed it was likely a 2009 to 2014 Chevy Cruze. On May 4, 2015, the police
released images of the car to the media. Ciara Guiden recognized the car as
hers. She told her mother, who called the police and identified the Chevy Cruze.
Detectives seized the Cruze and interviewed Guiden several times. They
learned that Guiden was dating Kime and often let him borrow her car, including
on April 16, the day of Malijha’s murder. Guiden said that when Kime returned
the car that evening, he was unusually quiet and had cleaned the car, which he
3 Detectives later concluded that Warr had an alibi on the day of Malijha’s shooting.
3 No. 84930-1-I/4
had not done before. Guiden said that after Kime returned her car, she dropped
him off at 9015 Canyon Drive in Kent.
Kime then became a person of interest in Malijha’s murder. Detectives
learned that Kime was a prominent member of Low Profile. And in January
2015, Kime was shot in downtown Seattle during an altercation with Deuce 8
members. Two months later, prominent Low Profile leader John Williams was
shot in downtown Seattle and died on March 22, 2015. Low Profile members
believed Deuce 8 may have been responsible for the shooting. Kime was close
with Williams and distraught when he died.
On May 15, 2015, the police executed a warrant to search 9015 Canyon
Drive. Several relatives of Williams lived there, including others associated with
Low Profile. Detectives found a box of .40 caliber ammunition in a bedroom and
a single .40 caliber round in the kitchen. They also found 19 cell phones
belonging to people at the house.
On one cell phone, police discovered a photo of Kime in a car, pointing a
loaded Smith & Wesson handgun into the camera. Kime posted the photo on
Snapchat on March 30, 2015, about one week after Williams’ death and two
weeks before Malijha was killed. A state crime lab firearm and toolmark
examiner concluded that the firearm in the photo most closely resembled a Smith
& Wesson Sigma series handgun. The expert also concluded that the .40 caliber
casings at the scene of Malijha’s shooting were fired from the same type of gun.
And the gun used in the March 23, 2015 shooting in south Seattle and the April
4 No. 84930-1-I/5
15, 2015 shooting in the Central District was also likely a Smith & Wesson Sigma
series .40 caliber handgun.
Police never found the gun used to kill Malijha. But they found phone and
Internet records showing that on the morning of the shooting, April 16, 2015,
Kime texted his brother, Isaiah Woods, asking whether Woods took his gun.
Woods said that Mitchell-Jones gave the gun to Gwendolyn Mayo, who lived at
9015 Canyon Drive. Later that morning, Kime asked for and received Mayo’s
phone number.
Commercial surveillance videos also showed that on April 16, 2015, Kime
was near the murder scene. Around 4:15 p.m., Lynch entered the Safeway, and
Guiden’s Chevy Cruze drove through the parking lot in front of the Safeway
entrance. After Lynch and her family left the Safeway parking lot, a gas station
camera captured their car passing by, and then the Chevy Cruze passed by.
Less than a minute later, Malijha was shot. Kime’s phone records confirmed that
he was driving near the family at the time of the shooting.
On December 10, 2015, Kime was serving time for a different offense at
the Federal Detention Center SeaTac (FDC). Detective Richard Gilcrist visited
Kime at the FDC and told him that the State was charging him with Malijha’s
murder. The same day, Kime contacted David Harrison, an inmate in his unit at
the FDC who was being held “on gun charges.” Kime told Harrison that
detectives visited him about a shooting and asked Harrison his opinion about
whether the State could charge him with a crime if they did not find a gun. A
couple weeks later, Harrison read a newspaper article about the State charging
5 No. 84930-1-I/6
Kime with the murder of a child. Harrison asked Kime “if it was the truth” and
Kime said that “it was an accident.” Harrison then contacted his attorney with the
information about Kime, hoping to reduce his sentence.
In May 2018, detectives obtained a search warrant for a phone associated
with Woods. Police found videos on the phone from April 16, 2015, showing
Kime and Woods in Guiden’s car about an hour before Malijha’s murder. The
videos showed them driving near the CVS where Lynch, Martrice, and Malijha
stopped that afternoon. In one video of Kime driving, he sees someone on the
street and asks, “Is that Malcom?” Kime reaches to the floor beneath the driver’s
seat and Woods says, “No.” Kime then says, “Oh, I thought we had him.”
Another video showed Kime and Woods rapping about “trying to catch a body.”
Also in May 2018, Eric Little agreed to talk to the police. At the time of
Malijha’s shooting, Little was 16 years old and living at 9015 Canyon Drive with
his mother. The night before the shooting, Kime was at Little’s house. When
police questioned Little in July 2015, he said he knew nothing about Malijha’s
murder except that he heard rumors that Low Profile was responsible. Two
years later in June 2017, the State charged Little in an unrelated case with two
counts of first degree assault and a firearm enhancement. Prosecutors offered
Little a plea deal if he agreed to testify against Kime, and he accepted the offer.4
The State ultimately charged Kime with second degree felony murder and
two counts of first degree assault with firearm enhancements. It brought the
4 Little testified about being with Kime the night before Malijha was killed and the evening of the shooting after she was killed.
6 No. 84930-1-I/7
case under an accomplice liability theory, arguing that on April 16, 2015, Kime
and an accomplice were in Guiden’s Chevy Cruze, that they followed Martrice
and his family, and that one of them fired the shots that killed Malijha. Several
people testified against Kime, including Harrison and Little. Kime’s defense
focused on challenging those witnesses’ credibility and shifting culpability onto
other people of interest, like Mitchell-Jones and Mohamed.
Both Kime and the State brought in evidence about gangs. The State
moved to admit certain gang-related evidence under ER 404(b), including
evidence about Low Profile, Deuce 8, other gang-related shootings, how Kime
joined Low Profile, Kime’s own statements about his association with Low Profile,
and Kime’s animus toward Deuce 8. The State asked to admit the evidence
through Facebook posts, videos of Kime rapping, pictures of Kime, and
testimony. It argued that Kime’s “gang identity and reason for being” were
“probative of identity, motive, and premeditation.” And it noted that a limiting
instruction could ensure that the jury did not consider the evidence for an
improper purpose. Kime responded, moving to exclude some gang-related
evidence, like Kime’s Facebook posts, testimony about the general conduct of
Low Profile members, and videos of Kime rapping certain lyrics.
The trial court considered whether each piece of evidence was admissible
for a limited purpose. It admitted, among other pieces of evidence, testimony by
Low Profile members about Kime’s gang activities and access to weapons,
photos of Kime with gang affiliations and weapons, a clip of Kime rapping about a
“Glock Smith,” videos of Kime and Woods rapping in the car about “trying to
7 No. 84930-1-I/8
catch a body,” and Facebook posts by Kime related to Low Profile and other
gangs. The trial court told the parties several times that they could request a
limiting instruction if they thought it was appropriate.
The jury convicted Kime as charged. The trial court sentenced Kime to
582 months’ imprisonment. Kime appealed, arguing, among other things, that
the trial court erred by admitting certain emotional and graphic evidence, denying
two motions for mistrial, and improperly admitting ballistics evidence. State v.
Kime, No. 79439-6-I, slip op. at 1-2 (Wash. Ct. App. Aug. 30, 2021)
(unpublished), https://www.courts.wa.gov/opinions/pdf/794396.pdf, review
denied, 198 Wn.2d 1039, 501 P.3d 146 (2022). We found no error and affirmed.
Id. at 33.
Kime then timely filed this PRP.5
ANALYSIS
Kime argues (1) his trial counsel was ineffective by not requesting limiting
instructions about certain gang-related evidence, (2) his appellate counsel was
ineffective by not raising that ineffective assistance of trial counsel issue on
appeal, and (3) the trial court erred by failing to give a limiting instruction about
the gang-related evidence at the State’s request.6 We address each argument in
turn.
5 On December 2, 2025, Kime moved this court to accept a supplemental designation of exhibits and trial court filings. We grant Kime’s motion. 6 Alternatively, Kime requests that we remand for a reference hearing under RAP 16.11(b). The “purpose of a reference hearing is to resolve genuine factual disputes.” In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Because there is no factual dispute here, we deny the request.
8 No. 84930-1-I/9
Relief by collateral challenge is “ ‘extraordinary.’ ” In re Pers. Restraint of
Fero, 190 Wn.2d 1, 14, 409 P.3d 214 (2018) (quoting In re Pers. Restraint of
Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011)). Collateral relief is limited
because “it undermines the principles of finality of litigation, degrades the
prominence of trial, and sometimes deprives society of the right to punish
admitted offenders.” In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 329, 823
P.2d 492 (1992). Still, a petitioner may seek relief through a PRP when he is
under unlawful restraint. RAP 16.4(a). Restraint is “unlawful” when the criminal
conviction was obtained or the sentence was imposed in violation of the United
States Constitution or Washington’s laws or constitution. RAP 16.4(c)(2).
When a petitioner alleges constitutional error in a PRP, they have the
burden of showing by a preponderance of the evidence that the error caused
“actual and substantial prejudice.” In re Pers. Restraint of Cook, 114 Wn.2d 802,
814, 810, 792 P.2d 506 (1990); In re Pers. Restraint of Davis, 152 Wn.2d 647,
671-72, 101 P.3d 1 (2004). “To show actual and substantial prejudice, a
petitioner must show that the outcome likely would have differed had the alleged
error not occurred.” In re Pers. Restraint of Skone, 30 Wn. App. 2d 1, 44, 543
P.3d 842 (2024). We look at the totality of the circumstances, including the
weight of the evidence, which requires that we review the whole record. Id.
While the “barrier to relief is greater than on direct appeal, we will still reverse if
we have a ‘grave doubt as to the harmlessness of an error.’ ” In re Pers.
Restraint of Sims, 118 Wn. App. 471, 477, 73 P.3d 398 (2003)7 (quoting In re
7 Internal quotation marks omitted.
9 No. 84930-1-I/10
Pers. Restraint of Smith, 117 Wn. App. 846, 860, 73 P.3d 386 (2003), abrogated
on other grounds by In re Pers. Restraint of Domingo, 155 Wn.2d 356, 119 P.3d
816 (2005)).
When a petitioner alleges a nonconstitutional error, he must show that the
error “constitutes a fundamental defect inherently resulting in a complete
miscarriage of justice.” In re Pers. Restraint of Borrero, 161 Wn.2d 532, 535-36,
167 P.3d 1106 (2007). This is a stricter preliminary showing than actual and
substantial prejudice. See Cook, 114 Wn.2d at 811.
1. Ineffective Assistance of Counsel
Kime argues his trial counsel was ineffective by failing to request limiting
instructions for gang-related evidence. We disagree.
An ineffective assistance of counsel claim presents mixed questions of
fact and law that we review de novo. State v. K.A.B., 14 Wn. App. 2d. 677, 707,
475 P.3d 216 (2020). A defendant has a constitutional right to effective
assistance of counsel under article I, section 22 of the Washington State
Constitution and the Sixth Amendment to the United States Constitution. In re
Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). To show
ineffective assistance of counsel, a defendant must show that (1) their counsel’s
representation was deficient and that (2) the deficient representation prejudiced
the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).
Counsel’s representation was deficient if it “fell below an objective
standard of reasonableness based on consideration of all the circumstances.”
10 No. 84930-1-I/11
McFarland, 127 Wn.2d at 334-35. We presume counsel’s representation was
effective and require the defendant to show “the absence of legitimate strategic
or tactical reasons for the challenged conduct.” State v. Fleeks, 25 Wn. App. 2d
341, 352, 523 P.3d 220 (2023). Then, a defendant must demonstrate prejudice
by showing a reasonable probability that but for counsel’s errors, the
proceeding’s result would have been different. McFarland, 127 Wn.2d at 335. A
personal restraint petitioner who makes an ineffective assistance of counsel
claim meets the burden of showing actual and substantial prejudice. In re Pers.
Restraint of Khan, 184 Wn.2d 679, 688, 363 P.3d 577 (2015).
Kime contends that his trial lawyers were ineffective because they failed to
request certain limiting instructions, allowing the jury unfettered use of “highly
prejudicial” information. Kime identifies specific pieces of gang-related evidence
that he contends required limiting instructions. He points to a photograph of him
in a car with a phone cord like the one in Guiden‘s Chevy Cruze. In it, he is
holding gold chains and displaying his fingers in a gang sign. He also identifies
other Snapchat and FaceTime pictures of him “flashing” gang signs. He
contends the photos were admitted only to show that he had a pattern of using
social media “to communicate with other individuals involved in the case.” And
he asserts that because there was testimony that flashing a Low Profile gang
sign signifies a “gangbanger representing your hood,” the photos show that he
was “claiming his status as a ‘gangbanger.’ ” Finally, Kime contends that the jury
saw several booking photos of Low Profile members, “presumably limited to
showing identity.” And he argues that without a limiting instruction, the booking
11 No. 84930-1-I/12
photos instead showed that Low Profile members “have a propensity to commit
criminal acts.”8
But Kime’s lawyers knew that they could ask for limiting instructions.
Indeed, the trial court informed the parties several times that they could request
them. And the record shows that Kime’s counsel requested a limiting instruction
when they thought it was appropriate.
For example, Kime’s counsel asked for a limiting instruction advising the
jury about the limited purpose of statements that Mohamed made about Kime.
This suggests that his attorneys’ decision not to request limiting instructions for
the evidence that Kime identifies in this PRP was strategic. Kime’s lawyers may
have determined that a limiting instruction would reinforce to the jury that Kime
possessed evidence linking him to the Chevy Cruze or that he had a pattern of
using social media to communicate with others involved in the case. And they
may have been less concerned about the evidence being used to show Kime’s
gang affiliation because both parties already introduced abundant evidence
showing that Kime was a Low Profile member. And other evidence showed that
Low Profile members had been arrested for crimes. In fact, the jury knew that
several witnesses were Low Profile members, that they had been involved in
8 Kime also complains about the admission of photos with the word “Stunna” on them and Slade’s testimony about the lineage of that name among Low Profile members. But Kime does not properly raise the issue or provide argument about the admissibility of the evidence, so his claim is outside the scope of this PRP, and we do not address it. See RAP 10.3(a)(5), (6) (brief must contain the facts and procedure relevant to the issue on review and argument in support of the issue with citations to legal authority); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (we do not consider an assignment of error that is not supported by argument or citations to authority).
12 No. 84930-1-I/13
criminal activity or had been charged with serious crimes, and that they were
seeking favorable resolutions in exchange for their testimony. So, Kime fails to
overcome the presumption that his attorneys were effective.
Kime also fails to show a reasonable probability that limiting instructions
would have changed the outcome of his trial. While Kime argues that the
“State’s case was weak,” the record shows otherwise. As discussed above,
there was abundant evidence that Kime was a member of Low Profile apart from
the evidence that Kime identifies. And there was significant evidence that,
among other things, Kime had a gang-related motive to shoot at Martrice, had
access to the type of gun that killed Malijha, drove the shooter’s car, and was at
the scene at the time of the shooting. The pieces of evidence that Kime
complains required limiting instructions were a minor part of the bulk of the
evidence presented to the jury.9
We conclude that Kime’s claim of ineffective assistance of trial counsel
fails.10
9 Kime argues that he suffered prejudice because his counsel’s failure to request limiting instructions “flooded” the volume of evidence about his gang affiliation. But Kime’s gang affiliation, his relationships with gang members, and his gang activities were central themes at trial and largely undisputed. Kime fails to show a reasonable probability that limiting instructions restricting the jury from considering the identified evidence for those purposes would have changed the outcome of the trial. 10 Because Kime fails to show ineffective assistance of trial counsel, he also fails to show ineffective assistance of appellate counsel for failing to raise that issue on appeal. See In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 787, 100 P.3d 279 (2004) (To prevail on an ineffective assistance of appellate counsel claim, a petitioner must show that the legal issue appellate counsel failed to raise had merit.).
13 No. 84930-1-I/14
2. Trial Court’s Failure to Give a Limiting Instruction
Kime argues that the trial court erred by failing to give a limiting instruction
about certain gang-related evidence when the State requested one. We
disagree.
“Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith,” but it may
be admissible for other purposes, like proof of motive, intent, plan, or identity.
ER 404(b). Under ER 105, an attorney may ask the court to issue a limiting
instruction to “restrict the evidence to its proper scope.” “Under the plain
language of ER 105, the trial court has a duty to issue a limiting instruction only
upon request for such an instruction.” State v. Russell, 171 Wn.2d 118, 123, 249
P.3d 604 (2011). And “when a party fails to request a limiting instruction, that
party is precluded from arguing that the lack of a limiting instruction was harmful
error.” State v. Mohamed, 186 Wn.2d 235, 245, 375 P.3d 1068 (2016).
Contrary to Kime’s argument, the State never asked the trial court to give
a limiting instruction for the admitted gang-related evidence. In its motion asking
the court to admit gang-related evidence under ER 404(b), the State argued that
its “presentation of evidence and theory of the case . . . will ask the jury to use
the evidence solely to determine motive, opportunity and identity.” And it said
that a “limiting instruction from the Court will insure the jurors do not consider the
evidence for an improper purpose.” The State concluded by stating that the
evidence “is not unduly prejudicial and the Court can instruct the jury how to use
14 No. 84930-1-I/15
the evidence.” This does not amount to an express request for a limiting
instruction.
Then, at trial, when the State asked the court to admit evidence of Kime
singing rap lyrics, the prosecutor said:
To avoid undue prejudice, the Court carefully reviews the lyrics and admits only the relevant portion. And even limiting instructions are suggested to help the jury know, if necessary more than normal, that they are the final factual decision makers here.
Again, the State’s comments do not amount to an affirmative request for a
limiting instruction. Instead, the State informed the trial court that it could give a
limiting instruction to alleviate any risk of undue prejudice if the court determined
it was warranted. And even if the State had requested a limiting instruction, Kime
did not. So, he is precluded from arguing that the lack of a limiting instruction
was harmful error. See Mohamed, 186 Wn.2d at 245.
Because Kime fails to show that his trial or appellate counsel were
ineffective or that the trial court erred by not giving a limiting instruction, we deny
WE CONCUR: