State Of Washington, V. Christopher Miles Gates

• Court: Court of Appeals of Washington
• Decided: October 9, 2023
• Docket: 83243-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, DIVISION ONE Respondent, No. 83243-3-I v. UNPUBLISHED OPINION CHRISTOPHER MILES GATES,

Appellant.

DWYER, J. — Christopher Gates was found guilty by jury verdict of second

degree intentional murder and second degree felony murder, both with a firearm

enhancement, for the homicide of Robert Baker. Gates was also found guilty of

unlawful possession of a firearm. In numerous pretrial motions, Gates sought to

discharge his counsel. He additionally objected to multiple continuances granted

by the trial court, although he frequently informed the court that he did not wish to

proceed to trial at that time.

On appeal, Gates contends that government mismanagement resulted in

delays proceeding to trial. He asserts that, pursuant to CrR 8.3(b), his murder

conviction must be reversed and the charges against him dismissed due to the

purported government mismanagement. We disagree. Washington’s time-for-

trial rule, set forth in CrR 3.3, governs the time limits within which criminal

charges must be brought to trial. The rule provides that no case may be

dismissed for time-to-trial reasons unless expressly required by the rule, by No. 83243-3-I/2

statute, or by our state or federal constitution. CrR 3.3(h). Gates asserts neither

a claim pursuant to CrR 3.3 nor a claim pursuant to a statute or constitutional

provision. Accordingly, he fails to assert a cognizable claim regarding the time

within which his case was brought to trial.

In the alternative, Gates contends that he is entitled to a new trial on

numerous grounds, including that the trial court erroneously admitted video

evidence in violation of the privacy act, the trial court erroneously declined to

instruct the jury regarding justifiable homicide in resistance of a felony, the

prosecutor committed misconduct in closing argument, and the admission of his

prior robbery conviction violated his right to testify and was improper pursuant to

ER 609. On all accounts, we disagree. Gates has demonstrated neither trial

court error nor prosecutorial misconduct that would entitle him to a new trial. Nor

do we find merit in the claims asserted by Gates in his statement of additional

grounds.

We conclude, however, that Gates is entitled to relief on his final claim of

error. Gates asserts, and the State concedes, that the inclusion of the second

degree felony murder conviction in the judgment and sentence violates the

protection against double jeopardy. We accept the State’s concession and

remand to the superior court to vacate the second degree felony murder

conviction. In all other respects, we affirm.

I

On May 2, 2018, the State charged Gates with premeditated murder in the

first degree with a firearm allegation and unlawful possession of a firearm in the

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first degree. The charges were premised on the April 22, 2018 shooting death of

Robert Baker, which occurred outside of the Cedar Room nightclub in the Ballard

neighborhood of Seattle. The State subsequently amended the information to

add a charge of felony murder in the second degree with a firearm allegation.

An extended period during which Gates filed numerous pretrial motions

ensued. As described by the presiding judge, the “constant theme” during this

time was Gates’s “dissatisf[action] with the attorneys who were appointed to

represent him,” notwithstanding that he “had really good attorneys on his case.”

Between September 2018 and September 2020, Gates filed “repeated motions

either for a new lawyer or to represent himself” and “constantly complain[ed]”

regarding his counsels’ representation. Indeed, Gates filed at least seven

motions to discharge counsel in one year alone.

In ruling on one such motion, in which Gates had asserted “irreconcilable

conflict” with his counsel, the trial judge explained that he had “heard Mr. Gates

repeatedly” and had concluded that the “irreconcilable differences . . . flow[ed]

one way, and it’s from Mr. Gates.” The trial court denied the motion, ruling that

Gates’s attempt to “control the minutia of [the] case [had] led to [the]

irreconcilable differences” and was “not a sufficient basis to grant new counsel.”

Gates also objected to multiple continuances granted by the trial court at defense

counsel’s request, although he frequently informed the trial court that he did not

wish to proceed to trial at that time.

On September 4, 2020, defense counsel brought a motion to withdraw

and substitute counsel. The managing attorney of the Society of Counsel

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Representing Accused Persons explained to the court that Gates “[felt] very

strongly that . . . he [had] not received effective assistance of counsel” and that a

breakdown in communication with Gates had rendered counsel unable to present

an adequate defense. The director of the Department of Public Defense similarly

informed the court that the department was unable to provide effective

representation due to a conflict resulting from Gates’s repeated complaints

regarding purported mismanagement.

The trial court granted the motion. In so doing, the court noted Gates’s

repeated motions to discharge counsel, which “universally, . . . [had] been

denied.” The court explicitly warned Gates that, “in the future,” he would not be

provided with representation at public expense if he continued to “engag[e] in a

pattern of complaining or unwillingness to work with [his] lawyer.” The court

found that Gates’s consistent complaints about his counsel were without merit.

New counsel was appointed on September 8, 2020. On March 26, 2021,

Gates’s counsel requested to delay trial until November 29, 2021. Gates

submitted a declaration in support of the motion to continue. The trial court

denied the motion and set a trial date of June 14, 2021.

Trial commenced for purposes of motions in limine on June 15, 2021.

Gates moved to exclude video footage from an outward-facing dash-mounted

camera on a rideshare vehicle that had captured footage of the incident resulting

in the charges against him. The video footage was obtained from a vehicle

driven by Chad Voorhis, who was working in his capacity as a Lyft driver on the

date of the offense. Voorhis had picked up a passenger, Aaron Mitchell, in

4 No. 83243-3-I/5

Ballard. The recording includes audio of Voorhis and Mitchell engaging in

conversation during the drive about “drinking with old friends,” the air conditioning

in the vehicle, and Voorhis’s shifts as a rideshare driver. Shortly after Voorhis

parked the vehicle to pick up additional passengers, the recording captured audio

of gunshots and video of Gates shooting Baker across the public street.

The State offered into evidence “only the video recording of the shooting

along with the sound of the gunshots,” not “the audio of the conversation

between [Mitchell] and [Voorhis] that occurred in the minutes leading up to the

shooting.” Gates sought to have the entirety of the recording, and also testimony

by Voorhis, suppressed because, he asserted, the recording violated our state’s

privacy act, chapter 9.73 RCW. After reviewing both versions of the recording,

the trial court ruled that the proffered evidence did not violate the privacy act and

denied Gates’s motion to suppress. The court determined that Mitchell “had no

expectation of privacy in a Lyft vehicle,” and that the three-minute and twelve-

second conversation between Mitchell and Voorhis was not a “private

conversation.” The court noted that Mitchell and Voorhis were “complete

strangers” and that their conversation was “innocuous and surface-level,” not a

“secret conversation.” The court additionally ruled that “[a]lthough the audio

recording of the inside of the vehicle and the video recording of the public street

came from the same device, there is no connection between the conversation

inside the Lyft [vehicle] and the events that were occurring out on a public street.”

Gates additionally moved to suppress evidence of his August 2012

conviction of robbery in the first degree with a firearm. Alternatively, he

5 No. 83243-3-I/6

requested that the evidence be “sanitize[d]” and the State be ordered to refer to

the incident solely as “conduct of theft.” The State agreed to limit impeachment

to the question of whether Gates had “been convicted of a crime of dishonesty.”

Pursuant to ER 609, the trial court denied Gates’s motion to exclude the

evidence. The court ruled that, in the event that Gates testified at trial, the State

would be permitted to question him in the limited manner that it had proposed.

Seven days of witness testimony commenced on June 24, 2021. Gates

testified that he, his girlfriend, and two friends were at the Cedar Room nightclub

in Seattle’s Ballard neighborhood in the early morning hours of April 22, 2018.

After leaving the nightclub, they stood outside the back door on the sidewalk

talking and “hanging out.” Shortly thereafter, Gates’s attention was redirected to

“two guys that were apparently standing and looking at” him and his friends. The

two individuals were Robert Baker and Adam Smith.

According to Gates, Smith stopped near the driver side of a vehicle while

Baker walked toward the passenger side. Baker motioned to Smith to turn

around to look toward Gates and his friends, which Smith quickly did. It then

appeared to Gates that Smith grabbed something out of the vehicle. According

to Gates, Baker then approached Smith on the driver side of the vehicle, and

Smith passed something to Baker. Although Gates could not identify that the

object was a weapon, he believed that it was. Baker then put the object in his

right jacket pocket and began walking down the street in the direction of Gates

and his friends. Gates testified that, during this time, Smith continued to closely

6 No. 83243-3-I/7

watch their group. Gates believed that Baker had a gun by the way he was

holding his arm in his pocket, although Gates was unable to see any weapon.

Gates testified that Smith continued watching Gates and his friends as

Baker proceeded down the street. According to Gates, he was afraid that the

gun he believed Baker possessed would be used against him or one of his

friends. When Baker reached a car parked on the other side of the street from

Gates and his friends, Baker stopped walking. Gates testified that he “perceived

[Baker] start to draw his arm out of his pocket.” Gates then drew his own gun

and fired “a few rounds” to the right of Baker. According to Gates, he fired these

“deterrent shots” because he believed that Baker was about to fire on him.

Gates testified that Baker then pulled out his own gun and aimed it across the

street. Gates continued firing at Baker as Gates and his friends ran down the

street. Baker died at the scene from a single gunshot wound to the right side of

his chest.

Following trial testimony, defense counsel requested that the jury be

provided with modified justifiable homicide jury instructions based on both

criminal Washington Pattern Jury Instructions (WPIC) 16.02 and 16.03.1 Gates

argued that an instruction regarding justifiable homicide in resistance of a felony

was appropriate because Baker “was attempting to commit a felony upon” Gates

when Gates shot him. The trial court ruled that WPIC 16.02, the instruction

regarding justifiable homicide in defense of self, reflected Gates’s testimony that

1 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL (4th ed.

2016) (WPIC).

7 No. 83243-3-I/8

he fired deterrent shots because he “was afraid that his friends or he would be

injured or would be killed.” The court explained that additionally providing the

jury with WPIC 16.03, regarding justifiable homicide in resistance of a felony,

“would unnecessarily confuse the jury.” The court concluded that WPIC 16.02

“accurately reflect[ed] . . . the facts of this case and will allow [Gates] to argue

[his] theory . . . and is an accurate reflection of the law.” Thus, the trial court

refused to provide the jury with the proposed modified WPIC 16.03 instruction.

Much of closing argument reflected Gates’s self-defense theory of the

case. Defense counsel urged the jury to consider Gates’s life experiences in

evaluating the reasonableness of his actions. In closing argument, counsel

stated:

A homicide is justifiable as is the case here when, specifically to the facts of this case, Mr. Gates had a reasonable belief that Mr. Baker intended to inflict death or great personal injury upon him. Mr. Gates reasonably believed that there was intent of such harm being accomplished, and Mr. Gates employed such force as a reasonably prudent person would under the same or similar conditions as they reasonably appeared to Mr. Gates taking into all – taking into consideration all the facts and circumstances as they appeared to Mr. Gates at the time, as they appeared to him. You have to place yourself into the shoes of Mr. Gates, right? And knowing everything that he knew at that time in terms of observations of what conduct is going on and also taking into effect his personal experiences and his personal knowledge about how situations like this unfold; when you do so and you incorporate and include his observations, his knowledge, and his experience . . . it is clear that he was justified, that his use of force was reasonable, and that his assessments were correct. .... So how do you assess all the facts and circumstances as they appeared to Chris Gates? Different life experiences of people do not make one’s heightened ability to and danger any less reasonable than those experiences of people who have not shared the same life experience as Christopher Gates, all right? We all

8 No. 83243-3-I/9

come from different places and we all bring different experiences into how we view situations. But looking at where Mr. Gates comes from and his experiences and his knowledge is how you have to view and assess was he reasonable in reaching the conclusions that he did.

In rebuttal, the prosecutor stated:

The problem with Defense’s argument about self-defense is this. He wants different standards for different people. He wants you to look at Mr. Gates and look at Mr. Baker and look at Adam [Smith] and figure because they were up to something or because they are from a different background that they get a different law. Wow. Wow. That because of who they are, it’s okay to just shoot somebody for walking down the street out the back of a club. It’s okay to assume that they’re armed when you didn’t even see exactly what was handed. It’s a different standard for Robert [Baker] and a different standard for the defendant because they’re different. Wow. The law applies to everyone equally and the law says that you can’t kill somebody because you think they have a gun.

On July 22, 2021, the jury acquitted Gates of murder in the first degree but

returned a guilty verdict for the lesser included crime of intentional murder in the

second degree. The jury also found Gates guilty of felony murder in the second

degree. On both counts, the jury found that Gates was armed with a firearm

when the offenses were committed. Gates was additionally found guilty of

unlawful possession of a firearm in the first degree. In the judgment and

sentence, the sentencing court listed both murder convictions in the findings but

vacated the conviction of felony murder “for sentencing purposes only, in order to

avoid multiple punishments for one criminal act.” The court sentenced Gates to

300 months in prison.

Gates appeals.

9 No. 83243-3-I/10

II

Gates asserts that, pursuant to CrR 8.3(b), his convictions must be

reversed and the charges against him dismissed because “government

mismanagement forced [him] to waive his right to a speedy trial in order to obtain

his right to counsel.”2 We disagree. As an initial matter, Gates cannot raise for

the first time on appeal his rule-based claim of error. RAP 2.5(a). More

significantly, Gates fails to raise a cognizable claim. The plain and unambiguous

language of CrR 3.3 prohibits dismissal of criminal charges due to trial delay

unless the defendant can demonstrate violation of the rule, a statute, or the state

or federal constitution. Gates asserts no such claim. Accordingly, we reject his

meritless assertion that he is entitled to the requested remedy.

Criminal Rule 3.3 governs time-to-trial requirements in Washington. The

rule provides that when a charge is not brought to trial within the time limits set

forth therein, that charge “shall be dismissed with prejudice.” CrR 3.3(h).

However, “this procedural right is not self-executing and requires that a motion

be filed to exercise it in accordance with the procedure outlined in the rule.”

State v. Walker, 199 Wn.2d 796, 804, 513 P.3d 111 (2022). Pursuant to the rule,

“[a] party who objects to the date set upon the ground that it is not within the time

limits prescribed by this rule must, within 10 days after the notice is mailed or

otherwise given, move that the court set a trial within those time limits.” CrR

2 Br. of Appellant at 2.

10 No. 83243-3-I/11

3.3(d)(3).3 Significantly here, rule 3.3 provides that “[n]o case shall be dismissed

for time-to-trial reasons except as expressly required by this rule, a statute, or the

state or federal constitution.” CrR 3.3(h) (emphasis added).

Our Supreme Court amended the time-for-trial rule in 2003 based on the

recommendations of the Time-for-Trial Task Force.4 State v. Kone, 165 Wn.

App. 420, 435, 266 P.3d 916 (2011). The 2003 amendments include a provision

regarding construction of the rule, which states:

The allowable time for trial shall be computed in accordance with this rule. If a trial is timely under the language of this rule, but was delayed by circumstances not addressed in this rule or CrR 4.1,[5] the pending charge shall not be dismissed unless the defendant’s constitutional right to a speedy trial was violated.

CrR 3.3(a)(4) (emphasis added); see State v. George, 160 Wn.2d 727, 737, 158

P.3d 1169 (2007) (discussing identical amendments made to CrRLJ 3.3).

In explaining the purpose of this provision, the Time-for-Trial Task Force stated:

“Task force members are concerned that appellate court interpretation of the time-for-trial rules has at times expanded the rules by reading in new provisions. The task force believes that the rule, with the proposed revisions, covers the necessary range of time-for-trial issues, so that additional provisions do not need to be read in. Criminal cases should be dismissed under the time-for-trial rules only if one of the rules’ express provisions have been violated; other time-for-trial issues should be analyzed under the speedy trial provisions of the state and federal constitutions.”

George, 160 Wn.2d at 737 (quoting W ASHINGTON COURTS TIME-FOR-TRIAL TASK

3 “[O]nce the time-for-trial period has expired, a party cannot object to the untimely trial

date under CrR 3.3(d)(3) because it is no longer reasonably possible to comply with the rule’s requirement to ‘object’ in the prescribed manner, i.e., by moving to set the trial date within the time-for-trial period.” Walker, 199 Wn.2d at 802. 4 The final report of the task force is available at

https://www.courts.wa.gov/programs_orgs/pos_tft/. 5 Criminal Rule 4.1 sets forth the requirements for time to arraignment. CrR4.1(a).

11 No. 83243-3-I/12

FORCE, FINAL REPORT II.B at 12-13 (Oct. 2002) (on file with Admin. Office of

Courts), available at http://www.courts.wa.gov/programs_orgs/pos_tft). The task

force additionally recommended, and our Supreme Court adopted, the provision

of the rule prohibiting dismissal of a case for time-to-trial reasons “except as

expressly required by this rule, a statute, or the state or federal constitution.”

CrR 3.3(h).6 Thus, “the task force concluded that a court should assume that a

defendant is not entitled to dismissal with prejudice unless he or she establishes

a violation of the expressed rules or the constitutional right to a speedy trial.”

George, 160 Wn.2d at 738.

Gates nevertheless contends that, due to trial delays resulting from

purported government mismanagement in assigning his defense counsel, he is

entitled to reversal of his convictions and dismissal of the charges against him.

According to Gates, the alleged government mismanagement “forced [him] to

waive his right to a speedy trial.”7 However, notwithstanding Gates’s repeated

references to his “right to a speedy trial” and “right to counsel,” he nowhere

asserts a constitutional claim of error.8 Gates does not assert a speedy trial

claim pursuant to either the Sixth Amendment or article I, section 22 of our state

constitution. Moreover, he nowhere asserts that he was either completely

deprived of counsel, see United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039,

80 L. Ed. 2d 657 (1984), or that his counsel was ineffective. See Strickland v.

6 See W ASHINGTON COURTS TIME-FOR-TRIAL TASK FORCE, FINAL REPORT III.A, available at

https://www.courts.wa.gov/programs_orgs/pos_tft/report/pdf/CrR3.3.pdf. 7 Br. of Appellant at 41. 8 Gates’s contention that he waived his right to a speedy trial is also factually inaccurate.

No such waiver occurred.

12 No. 83243-3-I/13

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Instead, Gates’s claim of error is premised on CrR 8.3(b). This rule

provides that “[t]he court, in furtherance of justice, after notice and hearing, may

dismiss any criminal prosecution due to arbitrary action or governmental

misconduct when there has been prejudice to the rights of the accused which

materially affect the accused’s right to a fair trial.” CrR 8.3(b). However,

because Gates asserts a rule-based claim, this assertion of error may not be

raised for the first time on appeal. RAP 2.5(a). See also Kone, 165 Wn. App. at

434 (defendant could not argue for the first time on appeal that the trial court

should have granted his CrR 8.3(b) motion to dismiss due to purported CrR 3.3

time-to-trial violations); State v. Nowinski, 124 Wn. App. 617, 630, 102 P.3d 840

(2004) (holding that CrR 8.3(b) argument not presented to the trial could would

not be considered as a basis for dismissal on appeal).

Additionally problematic is Gates’s attempt to obtain reversal of his

convictions and dismissal of the charges against him by characterizing a claim of

error regarding trial delay as one of “government mismanagement.” Indeed, we

have previously rejected the assertion that dismissal of charges was warranted

for purported government mismanagement prejudicing a defendant’s so-called

“right to a speedy trial” pursuant to CrR 3.3. Kone, 165 Wn. App. at 435-37.

There, the defendant argued on appeal that the trial court should have granted

his CrR 8.3(b) motion to dismiss for time-to-trial violations pursuant to CrR 3.3.

Kone, 165 Wn. App. at 434-35. In addressing this contention, we looked to the

13 No. 83243-3-I/14

plain language of CrR 3.3(h).9 Kone, 165 Wn. App. at 435. This “plain and

unambiguous language,” we concluded, “prohibits dismissal of a case under CrR

8.3(b) for violation of a defendant’s time-to-trial rights under CrR 3.3 unless a

defendant can show a violation of CrR 3.3, a statute, or the state or federal

constitution.” Kone, 165 Wn. App. at 436. Thus, we rejected the defendant’s

attempt to obtain dismissal pursuant to CrR 8.3(b) on the basis of a purported

time-for-trial violation. Kone, 165 Wn. App. at 436-37. “CrR 3.3(b),”10 we held,

“provides the exclusive means to challenge a violation of the time-for-trial rule.”

Kone, 165 Wn. App. at 437.

Similarly, here, Gates attempts to characterize a time-to-trial claim of error

as one of “government mismanagement” pursuant to CrR 8.3(b). However, a

case may be dismissed for time-to-trial reasons only if such dismissal is

“expressly required” by CrR 3.3, a statute, or the state or federal constitution.

CrR 3.3(h). Although Gates’s claim of error is premised on time-to-trial reasons,

he nowhere asserts a violation of CrR 3.3, a statute, or the state or federal

constitution. The plain and unambiguous language of CrR 3.3(h) precludes

Gates from obtaining the relief requested pursuant to CrR 8.3(b). See Kone, 165

Wn. App. at 435-37. Accordingly, Gates has asserted no cognizable claim of

error.

The judicial authority relied on by Gates, as it preceded our Supreme

Court’s 2003 amendments to the time-to-trial rule, is unavailing. See State v.

9 Again, CrR 3.3(h) provides that “[n]o case shall be dismissed for time-to-trial reasons

except as expressly required by this rule, a statute, or the state or federal constitution.” 10 CrR 3.3(b) sets forth the time-for-trial requirements, which, when violated, are the basis

for dismissal of a case pursuant to the rule.

14 No. 83243-3-I/15

Michielli, 132 Wn.2d 229, 937 P.2d 587 (1997); State v. Sherman, 59 Wn. App.

763, 801 P.2d 274 (1990). In Sherman, the trial court dismissed a criminal

prosecution for theft pursuant to CrR 8.3(b) after the State failed to provide the

defendant with records pertinent to the case. 59 Wn. App. at 765-67. We

affirmed the dismissal of the charge, noting that “the speedy trial expiration date

had been extended a total of seven times.” Sherman, 59 Wn. App. at 769. Thus,

we reasoned, to require the defendant to request a continuance to obtain the

records “would be to present her with a Hobson’s choice: she must sacrifice

either her right to a speedy trial or her right to be represented by counsel who

had sufficient opportunity to prepare her defense.” Sherman, 59 Wn. App. at

769.

In Michielli, our Supreme Court held that dismissal of a criminal

prosecution was warranted pursuant to CrR 8.3(b) when the State added new

charges against the defendant “without any justification for the delay in amending

the information.” 132 Wn.2d at 245. Because defense counsel needed

additional time to prepare to defend against the new charges, the court

determined that the State’s actions “forced [the defendant] either to go to trial

unprepared, or give up his speedy trial right.” Michielli, 132 Wn.2d at 245. The

court held that “[t]he State’s delay in amending the charges, coupled with the fact

that the delay forced Defendant to waive his speedy trial right in order to prepare

a defense, can reasonably be considered mismanagement and prejudice

sufficient to satisfy CrR 8.3(b).” Michielli, 132 Wn.2d at 245.

15 No. 83243-3-I/16

Gates relies on this authority, however, without addressing our Supreme

Court’s subsequent amendment of the time-for-trial rule to include CrR 3.3(h).

Because Gates fails to even address the pertinent rule, he nowhere asserts that

Michielli and Sherman remain good law following the 2003 amendments. In any

event, we have rejected such an argument concerning other decisional authority

preceding the 2003 amendments to the rule. See State v. Thomas, 146 Wn.

App. 568, 191 P.3d 913 (2008). In Thomas, we considered whether the

amendments to CrR 3.3 superseded our Supreme Court’s decision in State v.

Fulps, 141 Wn.2d 663, 9 P.3d 832 (2000), in which the court relied on standards

of the American Bar Association “to supplement CrR 3.3’s speedy trial

requirements” in determining the beginning date of a “speedy trial period.” 146

Wn. App. at 570. We held that “the 2003 amendments to the time-for-trial rule

supersede[d] the Fulps decision” and affirmed the superior court’s reversal of the

district court’s dismissal of the criminal charge therein. Thomas, 146 Wn. App. at

570.

In determining whether decisional authority was superseded by the

subsequent amendments, we considered the Time-for-Trial Task Force’s

explication of its concerns regarding prior interpretations of the rule:

“Task Force members are concerned over the degree to which the time-for-trial standards have become less governed by the express language of the rule and more governed by judicial opinions. To address this concern, the task force has tried to fashion a rule that is simpler, has fewer ambiguities, and covers more of the field of time-for-trial issues, with the hope that a reader of the rule will have a better understanding of the overall picture than currently exists. The Task Force also recommends adopting a provision in CrR 3.3 expressly stating that the rule is intended to

16 No. 83243-3-I/17

cover all the reasons why a case should be dismissed under the rule. Courts should not read into the rule any other reasons beyond those that are expressly stated in the rule. Any other reasons should be analyzed under the corresponding constitutional provisions (Wash. Const. Art. I, § 22, and U.S. Const., Amend. 6).”

Thomas, 146 Wn. App. at 573 (quoting W ASHINGTON COURTS TIME-FOR-TRIAL

TASK FORCE, FINAL REPORT I(B)(1) at 6 (Oct. 2002) (on file with Admin. Office of

the Courts), available at http://www.courts.wa.gov/programs_orgs/pos_tft). We

concluded that, pursuant to the plain language of the amended rule, “dismissal is

not a permissible remedy unless the defendant’s constitutional right to a speedy

trial is violated” if trial was delayed by circumstances not addressed in the rule

itself. Thomas, 146 Wn. App. at 575. “Thus,” we held, “the amended rule

unambiguously prohibit[ed] the supplementation engaged in by the Fulps court.”

Thomas, 146 Wn. App. at 575-76.

Similarly, here, Gates relies on decisional authority that preceded the

2003 amendments to the time-to-trial rule. These decisions, because they

preceded the adoption of CrR 3.3(h), permitted the dismissal of a criminal

prosecution for time-to-trial reasons other than those “expressly required by [CrR

3.3], a statute, or the state or federal constitution.” CrR 3.3(h). See Michielli, 132

Wn.2d 229; Sherman, 59 Wn. App. 763. As we held in Thomas, 146 Wn. App. at

575-76, such decisional authority is superseded by the court’s amendment of the

rule. Accordingly, the authority cited by Gates is unavailing.

Gates nowhere asserts that his trial was delayed due to a violation of CrR

3.3, a statute, or the state or federal constitution.11 The plain and unambiguous

11 Indeed, Gates insisted at oral argument that he was not asserting any such claim.

17 No. 83243-3-I/18

language of the time-to-trial rule prohibits the dismissal of criminal charges due to

trial delay unless the defendant can demonstrate such a violation. CrR 3.3(h).

Accordingly, Gates has failed to assert a cognizable claim of error. We thus

reject his meritless assertion that he is entitled to reversal of his convictions and

dismissal of the charges against him.

III

Gates next asserts that the trial court erred by admitting into evidence the

recording from the rideshare vehicle that captured video footage of the shooting.

According to Gates, the recording violated our state’s privacy act and, thus, is

inadmissible in any civil or criminal trial. We disagree. Because the recording

included no “private conversation” pursuant to the act, the trial court did not err

by admitting the proffered evidence.

Washington’s privacy act, chapter 9.73 RCW, “is designed to protect

private conversations from governmental intrusion.” State v. Clark, 129 Wn.2d

211, 232, 916 P.2d 384 (1996). The act provides in pertinent part:

Except as otherwise provided in this chapter, it shall be unlawful for any individual . . . to . . . record any: .... [p]rivate conversation, by any device electronic or otherwise designed to record or transmit such conversation . . . without first obtaining the consent of all the persons engaged in the conversation.

RCW 9.73.030(1)(b). The privacy act mandates that “[a]ny information obtained

in violation of RCW 9.73.030 . . . shall be inadmissible in any civil or criminal

case.” RCW 9.73.050. Additionally, and significantly, any person found to have

18 No. 83243-3-I/19

recorded a private conversation in violation of the act is liable for civil damages

and is guilty of a gross misdemeanor. RCW 9.73.060, .080.

Gates asserts that the trial court erred by admitting into evidence the video

recording of the shooting, along with the audio recording of the gunshots, which

was obtained from the dash-mounted camera of the Lyft vehicle driven by Chad

Voorhis on the night of the offense. According to Gates, the conversation

between Voorhis and Aaron Mitchell, the Lyft passenger, was a “private

conversation” pursuant to the privacy act. Thus, Gates contends, the evidence

was improperly admitted at trial.12 We disagree.

Washington’s privacy act protects only “private” communication and

conversation. RCW 9.73.030. “Private,” as employed by the act, means

“‘belonging to one’s self . . . secret . . . intended only for the persons involved (a

conversation) . . . holding a confidential relationship to something . . . a secret

message: a private communication . . . secretly: not open or in public.’” Clark,

129 Wn.2d at 225 (alterations in original) (internal quotation marks omitted)

(quoting Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 189-90, 829

P.2d 1061 (1992)). “A communication is private (1) when the parties manifest a

subjective intention that it be private and (2) where that expectation is

reasonable.” State v. Kipp, 179 Wn.2d 718, 729, 317 P.3d 1029 (2014).

12 Gates asserts that the proffered evidence was inadmissible, notwithstanding that it did

not include any of the conversation between Voorhis and Mitchell, because RCW 9.73.050 provides that “[a]ny information obtained in violation of [the act]” is inadmissible. Because we conclude that the conversation between Voorhis and Mitchell was not a private conversation, we need not address this contention.

19 No. 83243-3-I/20

“Factors bearing on the reasonableness of the privacy expectation include

the duration and subject matter of the communication, the location of the

communication and the presence or potential presence of third parties, and the

role of the nonconsenting party and his or her relationship to the consenting

party.” Kipp, 179 Wn.2d at 729. The reasonable expectation standard requires

“a case-by-case consideration of all the surrounding facts.” State v. Faford, 128

Wn.2d 476, 484, 910 P.2d 447 (1996). “[T]he presence or absence of any single

factor is not conclusive for the analysis.” Clark, 129 Wn.2d at 227. When, as

here, the facts are undisputed, whether a conversation is “private” pursuant to

the act is a matter of law we review de novo. Kipp, 179 Wn.2d at 728.

Consideration of the pertinent factors leads us to conclude that Mitchell

had no reasonable expectation of privacy within the rideshare vehicle. The

conversation between Voorhis and Mitchell lasted a mere three minutes and

concerned the trivial subjects of “drinking with old friends,” the air conditioning in

the vehicle, and Voorhis’s shifts as a rideshare driver. Such “‘inconsequential,

nonincriminating’ conversations generally lack the expectation of privacy

necessary to be protected under the act.” Kipp, 179 Wn.2d at 730 (quoting

Faford, 128 Wn.2d at 484).

The location of the conversation similarly indicates that it was not a

“private conversation” within the meaning of the act. As our Supreme Court has

held, “the ordinary person does not reasonably expect privacy in a stranger’s

car.” Clark, 129 Wn.2d at 230. Such expectation is less reasonable still in a

rideshare vehicle, in which the service of transporting persons for compensation

20 No. 83243-3-I/21

is provided.13 Indeed, as the trial court found, the Lyft vehicle driven by Voorhis

had posted signs that audio and video recording was in progress, and the dash-

mounted camera could be easily observed from within the vehicle. That the

conversation occurred in a rideshare vehicle indicates that Mitchell had no

reasonable expectation of privacy.

Further demonstrating that the conversation between Voorhis and Mitchell

was not private is the role of Mitchell, the “nonconsenting party” to the recording,

and his relationship with Voorhis. Mitchell was a passenger in Voorhis’s

rideshare vehicle, and the two were complete strangers. A nonconsenting

party’s “willingness to impart the information to a stranger evidences that the

communication is not private.” Kipp, 179 Wn.2d at 732 (holding that, in contrast,

a conversation between brothers-in-law regarding a sensitive matter indicated a

reasonable expectation of privacy). See also Clark, 129 Wn.2d at 228

(concluding that the conversations there “were not private because they were

routine conversations between strangers on the street concerning routine illegal

drug sales”). For each of these reasons, we conclude that the conversation

between Voorhis and Mitchell was not a “private conversation” subject to the

exclusionary provision of the privacy act.

Moreover, when engaging in this analysis, we are cognizant that the

privacy act creates criminal liability for those who unlawfully record private

13 Indeed, our legislature has, in a separate statute, recognized as a “‘place of public

resort, accommodation, assemblage, or amusement’ . . . any place . . . kept for . . . hire . . . where charges are made for . . . service,” including “for public conveyance or transportation on land, water, or in the air.” RCW 49.60.040(2). This evidences legislative recognition that rideshare vehicles, such as the one driven by Voorhis on the night of the offense, constitute public spaces.

21 No. 83243-3-I/22

conversation. See RCW 9.73.080(1) (“Except as otherwise provided in this

chapter, any person who violates RCW 9.73.030 is guilty of a gross

misdemeanor.”). In discerning our legislature’s intent, we consider the statutory

scheme of the privacy act as a whole. See, e.g., Christensen v. Ellsworth, 162

Wn.2d 365, 373, 173 P.3d 228 (2007). Because our legislature criminalized

violations of the privacy act, its applicability should be viewed as we view the

applicability of criminal laws, to which we give a “literal and strict interpretation.”

State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). In asserting that the

recording was required to be suppressed, Gates alleges that Voorhis, the

rideshare driver, acted criminally by recording video and audio within his vehicle

to promote his own safety and that of his passengers. Nowhere does the privacy

act demonstrate an intent to criminalize such conduct.

The recording admitted into evidence included no content of the

conversation between Voorhis and Mitchell that occurred in the minutes prior to

the shooting. Gates nevertheless asserts that the evidence was improperly

admitted because the complete version of the recording had been obtained in

violation of the privacy act. The conversation between Voorhis and Mitchell,

however, was not a “private conversation” pursuant to the act, as Mitchell had no

reasonable expectation of privacy in the rideshare vehicle where the

conversation occurred. Accordingly, the recording did not violate the privacy act,

and the trial court properly admitted the proffered evidence.

22 No. 83243-3-I/23

IV

Gates next contends that the trial court erred by declining to instruct the

jury on justifiable homicide in resistance of a felony. He asserts that he was

denied due process due to this alleged error, thus necessitating reversal of his

conviction. We disagree. The trial court’s instructions to the jury, which included

an instruction on justifiable homicide in defense of self, correctly stated the law

and allowed Gates to argue his theory of the case. Because an additional

instruction regarding justifiable homicide in resistance of a felony would have

been repetitious, Gates was not entitled to such an instruction. Gates’s related

assertion that the State was relieved of its burden to disprove self-defense is also

without merit. Accordingly, the trial court did not err by refusing to instruct the

jury regarding justifiable homicide in resistance of a felony.

We review de novo a trial court’s refusal to give a justifiable homicide

instruction if the decision was based on a ruling of law. State v. Brightman, 155

Wn.2d 506, 519, 122 P.3d 150 (2005). If the court’s decision was based on a

factual dispute, we review the refusal to issue the instruction for an abuse of

discretion. Brightman, 155 Wn.2d at 519.

Homicide is justifiable in Washington when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

23 No. 83243-3-I/24

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.

RCW 9A.16.050.14

RCW 9A.16.050(1) contemplates justifiable homicide where the defendant reasonably fears the person slain is about to commit a felony upon the slayer or inflict death or great personal injury, and there is imminent danger that the felony or injury will be accomplished. In contrast, RCW 9A.16.050(2) considers a homicide justifiable where the defendant acted in actual resistance against an attempt to commit a felony on the slayer.

Brightman, 155 Wn.2d at 520-21 (citation omitted). “Thus, RCW 9A.16.050(2)

addresses situations in which a felony or attempted felony is already in

progress.” Brightman, 155 Wn.2d at 521.

When a defendant has raised “some credible evidence . . . to establish

that the killing occurred in circumstances that meet the requirements of RCW

9A.16.050,” the defendant is entitled to an instruction on justifiable homicide.

Brightman, 155 Wn.2d at 520. A defendant is not, however, entitled to

repetitious instructions. State v. Bogdanov, No. 56202-2-II, slip op. at 12 (Wash.

Ct. App. July 25, 2023), http://www.courts.wa.gov/opinions/pdf/562022.pdf (citing

State v. Brenner, 53 Wn. App. 367, 377, 768 P.2d 509 (1989)); see also State v.

Boisselle, 3 Wn. App. 2d 266, 291, 415 P.3d 621 (2018), rev’d on other grounds,

194 Wn.2d 1, 448 P.3d 19 (2019). “‘Jury instructions are sufficient when they

allow counsel to argue their theory of the case, are not misleading, and when

read as a whole properly inform the trier of fact of the applicable law.’” State v.

14 Our state’s pattern jury instructions correspond to the sections of RCW 9A.16.050.

See WPIC 16.02 (“Justifiable Homicide—Defense of Self and Others”); WPIC 16.03 (“Justifiable Homicide—Resistance to Felony”).

24 No. 83243-3-I/25

Killingsworth, 166 Wn. App. 283, 288, 269 P.3d 1064 (2012) (internal quotation

marks omitted) (quoting State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627

(2007)).

Here, the trial court instructed the jury regarding justifiable homicide in

self-defense. The court determined that this instruction would allow Gates to

argue his theory of the case, based on Gates’s testimony that he fired at Baker

“because he was afraid that his friends or he would be injured or would be killed.”

However, the court refused to provide to the jury Gates’s proposed modified

instruction regarding justifiable homicide in resistance of a felony, concluding that

the instruction would “unnecessarily confuse the jury” given the testimony at trial.

Gates asserts that the trial court erred by refusing to instruct the jury regarding

justifiable homicide as defined in RCW 9A.16.050(2). We disagree.

Gates testified at trial that he believed that Baker possessed a gun and

that he was afraid that the weapon would be used against him or his friends. In

closing, defense counsel argued that the homicide was justifiable because

“[w]hen someone is about to commit a felony upon you, when they are about to

assault you with a firearm,” a response such as that carried out by Gates is

reasonable. (Emphasis added.) Counsel further argued in closing that Gates’s

conduct was justifiable because Baker was “intending to commit an assault”

against him and his friends.

The trial court instructed the jury:

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

25 No. 83243-3-I/26

Homicide is justifiable when committed in the lawful defense of the slayer or any person in the slayer’s presence or company when: (1) the slayer reasonably believed that the person slain or others whom the defendant reasonably believed were acting in concert with the person slain intended to inflict death or great personal injury; (2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and (3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.

Instruction 25 (WPIC 16.02).

This instruction was a correct statement of the law that allowed Gates to

argue his theory of the case. As our Supreme Court articulated in Brightman,

“RCW 9A.16.050(1) contemplates justifiable homicide where the defendant

reasonably fears the person slain is about to commit a felony upon the slayer or

inflict death or great personal injury, and there is imminent danger that the felony

or injury will be accomplished.” 155 Wn.2d at 520-21. Both Gates’s testimony

and closing argument were premised on his alleged apprehension that Baker

intended to inflict harm on Gates and his friends and that the infliction of such

harm was imminent. Thus, the instruction provided to the jury allowed Gates to

fully argue this theory of the case. See Bogdanov, No. 56202-2-II, slip op. at 13-

14.

Moreover, an additional instruction regarding justifiable homicide in

resistance of a felony would have been repetitious. In Brenner, we determined

that the defendant was not entitled to an instruction regarding justifiable homicide

in resistance of a felony when the self-defense instruction provided to the jury

26 No. 83243-3-I/27

permitted the defendant to argue his theory of the case. 53 Wn. App. at 376.

We held that “[b]ecause justifiable homicide is limited to felonies where the attack

on the defendant’s person threatens life or great bodily harm,” the proposed

instruction “simply repeat[ed] the substance” of the self-defense instruction

provided to the jury. Brenner, 53 Wn. App. at 377. Similarly, in Boisselle, we

held that an instruction regarding justifiable homicide in resistance of a felony

would have been repetitious when the defendant “was already arguing that he

was resisting death or great bodily harm” pursuant to RCW 9A.16.050(1). 3 Wn.

App. 2d at 291. The same is true here. Gates argued that the homicide he

committed was justified because he reasonably feared that Baker was about to

do harm to him or his friends. Given Gates’s theory of the case, the proposed

instruction would have been repetitious. “A defendant is not entitled to

repetitious instructions.” Bogdanov, No. 56202-2-II, slip op. at 12. Moreover,

because the trial court instructed the jury regarding justifiable homicide in

defense of self, the State was not relieved of its burden to disprove self-defense.

Gates nevertheless asserts that the trial court’s refusal to instruct the jury

regarding justifiable homicide in resistance of a felony is inconsistent with

decisional authority. We disagree. Contrary to Gates’s assertion, our Supreme

Court’s decision in Brightman, 155 Wn.2d 506, does not hold that a defendant is

entitled to such an instruction when that instruction would be duplicative of the

self-defense instruction provided to the jury. Rather, there, the defendant

asserted that, to be entitled to an instruction regarding RCW 9A.16.050(2), he

was not required to show fear of great bodily harm or death if he acted in actual

27 No. 83243-3-I/28

defense of an attempted felony. Brightman, 155 Wn.2d at 519. Our Supreme

Court rejected the argument, holding that “a justifiable homicide instruction based

on either .050(1) or .050(2) depends upon a showing that the use of deadly force

was necessary under the circumstances.” Brightman, 155 Wn.2d at 523.

Gates’s reliance on other decisional authority is similarly misplaced. See

State v. Brown, 21 Wn. App. 2d 541, 506 P.3d 1258, review denied, 199 Wn.2d

1029 (2022); State v. Ackerman, 11 Wn. App. 2d 304, 453 P.3d 749 (2019). In

Ackerman, the trial court instructed the jury regarding both RCW 9A.16.050(1)

and .050(2), but the court altered the language of the resistance of a felony

instruction to state that homicide was justifiable if the defendant acted in

resistance of a “‘violent felony.’” 11 Wn. App. 2d at 311-12. The court did not

instruct the jury that robbery—the offense that the defendant allegedly acted in

resistance of—constituted such a felony. Ackerman, 11 Wn. App. 2d at 313. We

held that “[b]y suggesting that a robbery may not satisfy the requirements of a

justifiable homicide defense,” the instructions “diluted the State’s burden of

proving the absence of self-defense beyond a reasonable doubt.” Ackerman, 11

Wn. App. 2d at 313.

In Brown, both defense counsel and the State proposed instructions on

justifiable homicide in self-defense and in resistance of a felony. 21 Wn. App. 2d

at 560. On appeal, the defendant asserted that she received ineffective

assistance of counsel because the instruction provided to the jury regarding

RCW 9A.16.050(2) misstated the law by indicating that homicide was justifiable

only if the slayer possessed a reasonable fear of great personal danger. Brown,

28 No. 83243-3-I/29

21 Wn. App. 2d at 561. Division Three held that the instruction provided to the

jury properly stated the law because RCW 9A.16.050(2) “require[s] the slayer to

reasonably fear great personal injury before using deadly force.” Brown, 21 Wn.

App. 2d at 564 (citing Brightman, 155 Wn.2d at 520-22). Neither decision

suggests that the trial court erred here.

A defendant is entitled to a justifiable homicide instruction when some

credible evidence indicates that the homicide occurred in circumstances that

meet the requirements of RCW 9A.16.050. Brightman, 155 Wn.2d at 520.

However, a defendant is not entitled to repetitious jury instructions. Bogdanov,

No. 56202-2-II, slip op. at 12; Boisselle, 3 Wn. App. 2d at 291; Brenner, 53 Wn.

App. at 377. Here, the instruction provided to the jury properly stated the law and

permitted Gates to argue his theory of the case—that the homicide was justifiable

because he reasonably feared that Baker intended to harm him or his friends.

Moreover, because the trial court instructed the jury regarding justifiable

homicide in defense of self or others, the State was not relieved of its burden to

disprove self-defense. The proposed instruction would have been repetitious.

Accordingly, the trial court did not err by refusing to so instruct the jury.

V

Gates further asserts that he was denied a fair trial due to prosecutorial

misconduct. Specifically, he contends that the prosecutor’s comments in closing

argument minimized and shifted the burden of proof, denigrated defense

counsel, mischaracterized the law, and falsely implied that the defense argument

was racist. We disagree. The prosecutor accurately described the reasonable

29 No. 83243-3-I/30

doubt standard, neither minimizing nor shifting the State’s burden of proof.

Moreover, the prosecutor’s remarks in rebuttal closing argument were made in

response to defense counsel’s invitation to the jury to consider the

reasonableness of Gates’s conduct from a purely subjective standpoint. The

prosecutor’s remarks accurately portrayed the objective component of the self-

defense standard and neither denigrated defense counsel nor implied that

defense counsel’s closing argument was racist.

“Prosecutorial misconduct may deprive a defendant of his right to a fair

trial.” State v. Evans, 163 Wn. App. 635, 642, 260 P.3d 934 (2011). “We review

a prosecuting attorney’s allegedly improper remarks in the context of the total

argument, the issues in the case, the evidence addressed in the argument, and

the instructions given to the jury.” State v. Anderson, 153 Wn. App. 417, 427,

220 P.3d 1273 (2009). In order to establish that a prosecutor’s remarks

constituted misconduct, the defendant must demonstrate both that the comments

were improper and that prejudice resulted. Anderson, 153 Wn. App. at 427. “If

the defendant objected at trial, the defendant must show that the prosecutor’s

misconduct resulted in prejudice that had a substantial likelihood of affecting the

jury’s verdict.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).

When, as here, the defendant did not object at trial to the allegedly improper

remarks, “the defendant is deemed to have waived any error, unless the

prosecutor’s misconduct was so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. “In

other words, a conviction must be reversed only if there is a substantial likelihood

30 No. 83243-3-I/31

that the alleged prosecutorial misconduct affected the verdict.” State v. Russell,

125 Wn.2d 24, 86, 882 P.2d 747 (1994).

A

Gates first asserts that the prosecutor committed misconduct by

minimizing and shifting the burden of proof. In closing argument, the prosecutor

The most important principle in our justice system is that in a criminal case, the State has the burden to prove beyond a reasonable doubt every element of every crime. .... This is a high burden, the highest burden, but it is not an impossible burden. It is not an unusual burden. It is the burden that must be met for every criminal conviction.

The prosecutor further stated to the jury:

Reason must inform your doubt. If you have a doubt, it must be for a reason. Likewise, if you believe that something is proven, it must be for a reason.

“Arguments by the prosecution that shift or misstate the State’s burden to

prove the defendant’s guilt beyond a reasonable doubt constitute misconduct.”

State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014). Accordingly,

statements by the prosecutor suggesting that the jury must convict unless they

can articulate a reason to do otherwise are improper. Emery, 174 Wn.2d at 760;

Evans, 163 Wn. App. at 645-46; State v. Johnson, 158 Wn. App. 677, 684-86,

243 P.3d 936 (2010); State v. Venegas, 155 Wn. App. 507, 523-25, 228 P.3d

813 (2010); Anderson, 153 Wn. App. at 429-32. Such arguments imply “that the

jury must be able to articulate its reasonable doubt by filling in the blank.” Emery,

174 Wn.2d at 760. “This suggestion is inappropriate because the State bears the

31 No. 83243-3-I/32

burden of proving its case beyond a reasonable doubt, and the defendant bears

no burden. By suggesting otherwise, the State’s ‘fill in the blank’ argument subtly

shifts the burden to the defense.” Emery, 174 Wn.2d at 760 (citations omitted).

Thus, in Emery, the court found improper the prosecutor’s closing statement to

the jury that

“in order for you to find the defendant not guilty, you have to ask yourselves or you’d have to say, quote, I doubt the defendant is guilty, and my reason is blank. A doubt for which a reason exists. If you think that you have a doubt, you must fill in that blank.”

Emery, 174 Wn.2d at 750-51. However, the court found no fault with the

prosecutor’s description to the jury of “reasonable doubt as a ‘doubt for which a

reason exists,’” which the court concluded “properly describe[d]” the reasonable

doubt standard. Emery, 174 Wn.2d at 760.

Here, the prosecutor did not suggest to the jury that it must convict Gates

unless it could “articulate its reasonable doubt by filling in the blank.” Emery, 174

Wn.2d at 760. Rather, consistent with the trial court’s instructions to the jury,15

the prosecutor told the jurors that, “If you have a doubt, it must be for a reason.”

This statement “properly describes” the reasonable doubt standard. Emery, 174

Wn.2d at 760; see also Anderson, 153 Wn. App. at 430 (holding that “[t]he

prosecutor’s statements that a ‘reasonable doubt’ is one for which a reason

exists were . . . not inaccurate,” and noting that “the trial court’s instructions to the

jury only reiterated this concept”). Accordingly, contrary to Gates’s contention,

15 The trial court instructed the jury: “A reasonable doubt is one for which a reason exists

and may arise from the evidence or lack of evidence.” (Jury Instruction 3).

32 No. 83243-3-I/33

the prosecutor’s statement did not improperly shift the burden of proof to the

defense.

Gates additionally asserts that the prosecutor improperly “equated what

the jury must do to acquit with what the jury must do to convict”16 by stating to the

jury: “If you have a doubt, it must be for a reason. Likewise, if you believe that

something is proven, it must be for a reason.” We disagree. This statement,

rather than relieving the State of its burden, accurately described the reasonable

doubt standard and informed the jury that it must also have a reason in order to

conclude that the State proved the elements of the offense. Moreover, the

prosecutor additionally informed the jury that “the State has the burden to prove

beyond a reasonable doubt every element of every crime,” which the prosecutor

described as “[t]he most important principle in our justice system.” The

prosecutor further described the State’s burden as “the highest burden.” The

remarks challenged by Gates must be considered in the context of the

prosecutor’s entire argument. Anderson, 153 Wn. App. at 427. Because these

statements neither minimized nor shifted the State’s burden of proof, they do not

constitute prosecutorial misconduct.

B

Gates additionally contends that the prosecutor committed misconduct in

rebuttal closing argument “by misstating the law, denigrating defense counsel,

and falsely implying the defense argument was racist.”17 Again, we disagree.

16 Br. of Appellant at 81. 17 Br. of Appellant at 84.

33 No. 83243-3-I/34

The challenged remarks neither denigrated defense counsel nor suggested that

defense counsel’s closing argument was racist. Rather, the prosecutor’s

remarks, which accurately described the objective component of the

reasonableness standard, were made in response to defense counsel’s invitation

to the jury to consider the reasonableness of Gates’s conduct from a purely

subjective standpoint. We conclude that, in this context, the prosecutor’s

remarks do not constitute misconduct.

“A prosecuting attorney commits misconduct by misstating the law.” State

v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). Additionally, although a

prosecutor “can certainly argue that the evidence does not support the defense

theory,” the prosecutor “must not impugn the role or integrity of defense counsel.”

Lindsay, 180 Wn.2d at 431-32. “Prosecutorial statements that malign defense

counsel can severely damage an accused’s opportunity to present his or her

case and are therefore impermissible.” Lindsay, 180 Wn.2d at 432.

Nevertheless, the prosecuting attorney has “wide latitude” in closing argument “to

argue reasonable inferences from the evidence.” State v. Thorgerson, 172

Wn.2d 438, 448, 258 P.3d 43 (2011). “Remarks of the prosecutor, even if they

are improper, are not grounds for reversal if they were invited or provoked by

defense counsel and are in reply to his or her acts and statements, unless the

remarks are not a pertinent reply or are so prejudicial that a curative instruction

would be ineffective.” Russell, 125 Wn.2d at 86.

34 No. 83243-3-I/35

Here, in closing argument, defense counsel urged the jury to consider

Gates’s life experiences in evaluating the reasonableness of his conduct.

Defense counsel stated:

A homicide is justifiable as is the case here when, specifically to the facts of this case, Mr. Gates had a reasonable belief that Mr. Baker intended to inflict death or great personal injury upon him. Mr. Gates reasonably believed that there was intent of such harm being accomplished, and Mr. Gates employed such force as a reasonably prudent person would under the same or similar conditions as they reasonably appeared to Mr. Gates taking into all – taking into consideration all the facts and circumstances as they appeared to Mr. Gates at the time, as they appeared to him. You have to place yourself into the shoes of Mr. Gates, right? And knowing everything that he knew at that time in terms of observations of what conduct is going on and also taking into effect his personal experiences and his personal knowledge about how situations like this unfold; when you do so and you incorporate and include his observations, his knowledge, and his experience in those two minutes [when the shooting occurred], . . . it is clear that he was justified, that his use of force was reasonable, and that his assessments were correct. .... So how do you assess all the facts and circumstances as they appeared to Chris Gates? Different life experiences of people do not make one’s heightened ability to and danger any less reasonable than those experiences of people who have not shared the same life experience as Christopher Gates, all right? We all come from different places and we all bring different experiences into how we view situations. But looking at where Mr. Gates comes from and his experiences and his knowledge is how you have to view and assess was he reasonable in reaching the conclusions that he did. He has spoken to you . . . about how he has been at nightclubs and he has seen things occur at nightclubs that create a very unsafe environment. He has told you that he has had a cousin that was killed, he had a friend . . . that was killed, and he’s been shot at himself. These are experiences that engrain themselves in you so that when you are in certain positions or at certain places that you are unfamiliar with or may not know the people, it shapes the way that you perceive what’s out there. And people that don’t have the life experience and knowledge that Christopher Gates has, they can walk into the Cedar Room and everything to them is going to seem real happy-go-lucky, right? There’s no threats that

35 No. 83243-3-I/36

exist. But not everyone comes from the . . . same background, and so those experiences lead to the appearance of the observed conduct, right? But, nonetheless, you have to take into consideration that experience and that knowledge that he has in assessing – whether his assessment of the threat was reasonable. And it may be difficult to fully grasp that witnessing such conduct and having such experience and knowledge can occur, but it is actually quite more common tha[n] you might expect. And how do we know this? Because we know from the evidence in this case, right? Those shared experiences amongst the parties in this case are why Adam Smith had a gun in the first place. Those shared life experiences are why Adam Smith took the gun into the club himself. He told you I was afraid. He didn’t say . . . that there was any person that he was afraid of per se. He said he was afraid and that’s why he brought the gun in with him. Those shared experiences are why Adam Smith was shot the week before and suffered a potentially mortal injury, but for the grace of his telephone in his pocket according to his testimony. Those shared experiences are why Robert Baker armed himself with Adam Smith’s gun at the car on April 22nd. Those shared experiences are why Christopher Gates took a gun to the club. Those shared experiences are why so many people have lost friends and loved ones because it is a lot more common, the threat and the danger does exist out there, and just because you may not have the life experience or the personal knowledge to see it when it is occurring does not mean that it is not occurring right before your very face. .... . . . So these are widespread experiences, and these experiences exist among many many people and they are reasonable experiences in order to assess situations, and that’s what was happening at the Cedar Room on April 22nd.

The prosecutor, in rebuttal, stated:

The problem with Defense’s argument about self-defense is this. He wants different standards for different people. He wants you to look at Mr. Gates and look at Mr. Baker and look at Adam [Smith] and figure because they were up to something or because they are from a different background that they get a different law. Wow. Wow. That because of who they are, it’s okay to just shoot somebody for walking down the street out the back of a club. It’s okay to assume that they’re armed when you didn’t even see exactly what was handed. It’s a different standard for Robert [Baker] and a different standard for the defendant because they’re

36 No. 83243-3-I/37

different. Wow. The law applies to everyone equally and the law says that you can’t kill somebody because you think they have a gun.

Gates first asserts that the prosecutor committed misconduct in rebuttal

closing argument by misstating the law of self-defense. According to Gates, the

prosecutor “falsely told the jury that [Gates’s] explanation [in closing argument]

was wrong.”18 We disagree. The reasonableness standard of self-defense

incorporates both subjective and objective components. In closing argument,

defense counsel encouraged the jury to evaluate the reasonableness of Gates’s

conduct based on his personal life experiences. In rebuttal, the prosecutor

accurately, though perhaps unartfully, explained to the jury that the

reasonableness standard also requires an objective inquiry. These comments,

made in response to defense counsel’s closing argument, do not constitute

misconduct.

“The longstanding rule in [Washington] is that evidence of self-defense

must be assessed from the standpoint of the reasonably prudent person,

knowing all the defendant knows and seeing all the defendant sees.” State v.

Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993) (citing State v. Allery, 101

Wn.2d 591, 594, 682 P.2d 312 (1984)). This approach to reasonableness

“incorporates both subjective and objective characteristics.” Janes, 121 Wn.2d at

238. “It is subjective in that the jury is ‘entitled to stand as nearly as practicable

in the shoes of [the] defendant, and from this point of view determine the

character of the act.’” Janes, 121 Wn.2d at 238 (alteration in original) (quoting

18 Br. of Appellant at 90.

37 No. 83243-3-I/38

State v. Wanrow, 88 Wn.2d 221, 235, 559 P.2d 548 (1977)). “The self-defense

evaluation is objective in that the jury is to use this information in determining

‘what a reasonably prudent [person] similarly situated would have done.’” Janes,

121 Wn.2d at 238 (alteration in original) (quoting Wanrow, 88 Wn.2d at 236).

Our Supreme Court has articulated the significance of each component of

the reasonableness standard. “The subjective aspects,” the court has explained,

“ensure that the jury fully understands the totality of the defendant’s actions from

the defendant’s own perspective.” Janes, 121 Wn.2d at 239. On the other hand,

the objective component of the inquiry

serves the crucial function of providing an external standard. Without it, a jury would be forced to evaluate the defendant’s actions in the vacuum of the defendant’s own subjective perceptions. In essence, self-defense would always justify homicide so long as the defendant was true to his or her own internal beliefs.

Janes, 121 Wn.2d at 239.

The court then cautioned against the consequence of a fully subjective

reasonableness standard:

“[I]f the reasonable person has all of the defender’s characteristics, the standard loses any normative component and becomes entirely subjective. Applying a purely subjective standard in all cases would give free rein to the short-tempered, the pugnacious, and the foolhardy who see threats of harm where the rest of us would not and who blind themselves to opportunities for escape that seem plainly available. These unreasonable people may not be as wicked as (although perhaps more dangerous than) cold-blooded murderers . . . but neither are they, in practical or legal terms, justified in causing death.”

Janes, 121 Wn.2d at 240 (alterations in original) (quoting Susan R. Estrich,

Defending Women, 88 MICH. L. REV. 1430, 1435 (1990)).

38 No. 83243-3-I/39

Defense counsel in closing argument told the jurors that “looking at where

Mr. Gates comes from and his experiences and his knowledge is how you have

to view and assess was he reasonable in reaching the conclusions that he did.”

Counsel then referenced Gates’s testimony that he had observed unsafe

situations at nightclubs, that his cousin and friend had been killed, and that Gates

himself had “been shot at.” Such experiences, defense counsel told the jury,

“shape[] the way you perceive what’s out there.” Counsel suggested that Gates’s

“heightened ability” to perceive danger due to his “life experiences” did not make

his experiences “any less reasonable than those experiences” of others.

Defense counsel told the jury that Gates’s experiences are “widespread” and

“they are reasonable experiences in order to assess situations.” In essence,

defense counsel argued that, given Gates’s life experiences and alleged

“heightened ability” to perceive danger, Gates acted reasonably in shooting

Baker, even if people with different life experiences would have been

unreasonable in so doing.

In rebuttal, the prosecutor stated that Gates was requesting “different

standards for different people.” She informed the jury that “[t]he law applies to

everyone equally and the law says that you can’t kill somebody because you

think they have a gun.” The prosecutor’s remarks, although perhaps unartful,

were in response to defense counsel’s suggestion that the reasonableness of

Gates’s conduct should be evaluated based solely on his subjective experience.

The remarks conveyed that, if the reasonableness standard was solely

subjective, the standard would lose any external normative component and, thus,

39 No. 83243-3-I/40

a different standard could be applied to every defendant based on his or her own

subjective experiences. These remarks were an accurate portrayal of the law.

See Janes, 121 Wn.2d at 239 (discussing the subjective and objective

components of the reasonableness standard). The question is not whether

Gates’s conduct was reasonable based on his own subjective beliefs, as

suggested by defense counsel. Rather, the question is whether a “reasonably

prudent person, knowing all [that Gates knew] and seeing all [that Gates saw],”

would have shot Baker. Janes, 121 Wn.2d at 238. Contrary to Gates’s

contention, the prosecutor did not misstate the law of self-defense.19

Nor did the prosecutor’s remarks in rebuttal malign defense counsel or

suggest that defense counsel’s closing argument was racist. Prosecutorial

comments indicating that defense counsel’s case presentation was “‘a crock’” or

involved “‘sleight of hand’” impugn defense counsel’s integrity and, thus,

constitute misconduct. Lindsay, 180 Wn.2d at 433-34; Thorgerson, 172 Wn.2d at

451-52. No such comments were made here. Moreover, contrary to Gates’s

suggestion, the prosecutor’s remarks did not imply that defense counsel was

seeking a different standard because Gates is a Black man. Rather, the

prosecutor’s argument was that the reasonableness standard is not solely

subjective and that, were it so, a defendant’s life experiences would create a

19 We also express our disagreement with an argument that found its way into Gates’s

reply brief on appeal. Therein, Gates asserted that implicit in the prosecutor’s remarks “is the assumption that the objective ‘reasonable person’ standard means a middle-aged white person with experiences in privileged white communities.” Reply Br. of Appellant at 37. This is not so. That the reasonableness standard includes an objective component does not implicate the subjective experience of a “middle-aged white person” any more than it implicates Gates’s own life experiences.

40 No. 83243-3-I/41

“different standard” for justifiable homicide.20

The prosecutor in closing argument accurately described the reasonable

doubt standard without either minimizing or shifting the State’s burden of proof.

The prosecutor’s remarks in rebuttal closing argument, which were made in

response to defense counsel’s portrayal of the reasonableness standard as

purely subjective, accurately portrayed the objective component of that standard.

The remarks neither denigrated defense counsel nor implied that counsel’s

closing argument was racist. The prosecutor did not commit misconduct, and

Gates was not denied a fair trial.

VI

Gates also contends that the admission of evidence of his prior robbery

conviction violated his constitutional right “to appear and defend in person” and

“to testify in his own behalf,” WASH. CONST. art. I, § 22, and was improper

pursuant to ER 609(a)(2). We disagree. As Gates acknowledges, our Supreme

Court has previously rejected similar claims of error. Accordingly, the trial court

did not err by admitting evidence of Gates’s prior robbery conviction.

It is well established in Washington that evidence of crimes of dishonesty,

including theft and robbery, is per se admissible at trial for purposes of

20 For these same reasons, we reject Gates’s assertion that our Supreme Court’s

decision in State v. Zamora, 199 Wn.2d 698, 512 P.3d 512 (2022), requires reversal of his convictions. The prosecutor’s remarks could not be viewed by an objective observer as an appeal to the jurors’ potential prejudice, bias, or stereotypes. See Zamora, 199 Wn.2d at 718. Rather, as we have discussed, the remarks implicated the dual nature of the reasonableness standard. See Zamora, 199 Wn.2d at 718-19 (holding that the pertinent inquiry requires the court to consider “the apparent purpose of the statements, whether the comments were based on evidence or reasonable inferences in the record, and the frequency of the remarks”).

41 No. 83243-3-I/42

impeachment pursuant to ER 609(a)(2).21 State v. Rivers, 129 Wn.2d 697, 705,

921 P.2d 495 (1996); State v. Ray, 116 Wn.2d 531, 545, 806 P.2d 1220 (1991);

State v. Brown, 113 Wn.2d 520, 552-53, 782 P.2d 1013, 787 P.2d 906 (1989).

The admission of such evidence, our Supreme Court has concluded, does not

impermissibly interfere with a defendant’s right to testify in his or her own behalf.

State v. Ruzicka, 89 Wn.2d 217, 232-35, 570 P.2d 1208 (1977). In Ruzicka, the

defendant asserted that a statute permitting the introduction of prior conviction

evidence for impeachment purposes was “unconstitutional as permitting the

prosecutor to impose a penalty on the defendant for exercising his constitutional

right to testify on his own behalf.” 89 Wn.2d at 232. Our Supreme Court

disagreed:

Not all burdens placed on the defendant’s choice of whether to testify constitute impermissible penalties on his exercising his constitutional right to testify on his own behalf. For example, the police may obtain a statement from the defendant which violates his Miranda[22] rights. Although his statement cannot be introduced in the prosecutor’s case-in-chief, if the defendant chooses to testify the prosecutor can use the defendant’s statement for impeachment purposes. In deciding whether to testify, the defendant must weigh the pros and cons of perhaps having his previously inadmissible statement heard by the jury. This procedure is not thought to be inconsistent with the defendant’s right to testify.

Ruzicka, 89 Wn.2d at 233-34 (citations and footnotes omitted).

21 Evidence Rule 609 provides:

For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by the public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment. 22 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

42 No. 83243-3-I/43

In Brown, the court similarly rejected the assertion that ER 609 must be

narrowly construed in order to avoid a “Hobson’s choice” in which the defendant

“faced with prior conviction evidence” must “either refuse to testify and lose any

benefit of presenting his or her side of the story as is the defendant’s right, or

testify and risk the effect of the inherent prejudice associated with prior conviction

evidence.” 113 Wn.2d at 553. There, the court explained that

as hard as this choice may be for a defendant, requiring such choices is not inconsistent with the criminal process . . . . Further, we do not lose sight of the principle that a defendant has no right to testify free of impeachment, and that the purpose of ER 609(a)(2) is to permit admission of evidence affecting the credibility of the witness. Society has an interest here in evaluating the credibility of defendants with criminal convictions affecting their credibility and in preventing a defendant with a criminal past from presenting himself or herself as an “innocent among thieves.”

Brown, 113 Wn.2d at 553-54.

Gates nevertheless contends that robbery is not a crime of dishonesty

and, thus, that the admission of his robbery convictions was erroneous under a

proper reading of ER 609(a)(2). He further contends that admission of the prior

conviction evidence impermissibly interfered with his right to testify in his own

behalf pursuant to article I, section 22. Gates acknowledges, however, that his

arguments are foreclosed by our Supreme Court’s decisional authority. Because

that authority “is binding on all lower courts until it is overruled,” State v. Gore,

101 Wn.2d 481, 487, 681 P.2d 227 (1984), Gates does not establish an

entitlement to appellate relief on these claims.

43 No. 83243-3-I/44

VII

Gates further asserts that his right to be free from double jeopardy was

violated by the inclusion in his judgment and sentence of convictions of both

second degree intentional murder and second degree felony murder. The State

concedes that the felony murder conviction must be vacated. We agree and

accept the State’s concession. Accordingly, we remand to the trial court for entry

of an order vacating the second degree felony murder conviction and amending

the judgment and sentence to remove reference to that conviction.

Both our federal and state constitutions protect persons from being twice

put in jeopardy for the same offense. U.S. CONST. amend. V; WASH. CONST. art.

I, § 9. In addition to prohibiting a second prosecution for the same offense after

acquittal or conviction, the protection against double jeopardy also prohibits the

imposition of multiple punishments for the same criminal conduct. State v.

Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006). “The term ‘punishment’

encompasses more than just a defendant’s sentence for purposes of double

jeopardy.” State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010) (citing

State v. Womac, 160 Wn.2d 643, 656-58, 160 P.3d 40 (2007)). “Indeed, even a

conviction alone, without an accompanying sentence, can constitute ‘punishment’

sufficient to trigger double jeopardy protections.” Turner, 169 Wn.2d at 454-55.

Thus, double jeopardy may be violated “either by reducing to judgment both the

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

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

conviction nonetheless remains valid.” Turner, 169 Wn.2d at 464; see also

44 No. 83243-3-I/45

Womac, 160 Wn.2d at 647, 660 (holding that additional convictions premised on

the same facts must be vacated, even when the trial court imposed sentence on

only one of the convictions). “To assure that double jeopardy proscriptions are

carefully observed, a judgment and sentence must not include any reference to

the vacated conviction.” Turner, 169 Wn.2d at 464.

Here, Gates was convicted of both second degree intentional murder and

second degree felony murder for his conduct resulting in the death of Baker. The

felony judgment and sentence includes both of the convictions, but it indicates

that the felony murder conviction was vacated “for sentencing purposes only, in

order to avoid multiple punishments for one criminal act.” The State concedes

that the inclusion of the felony murder conviction in the judgment and sentence

violates double jeopardy protections. We accept the State’s concession and

remand to the trial court for entry of an order vacating the second degree felony

murder conviction and amending the judgment and sentence to remove any

reference to that conviction.23

23 Gates raises numerous additional claims of error in his statement of additional

grounds, including that (1) the trial court erroneously denied his motion to suppress search warrants, (2) the trial court erred by allowing the State to amend the information on the first day of trial, (3) the trial court improperly excluded evidence relevant to his perceptions while committing the offense by sustaining hearsay objections, (4) the trial court erroneously admitted into evidence text messages from the days following the offense, (5) the trial court erred by granting the State’s request for a first aggressor jury instruction, (6) the trial court erroneously granted the State’s request for an instruction on the lesser included offense of intentional murder in the second degree, (7) the trial court provided to the jury an erroneous to-convict instruction for felony murder in the second degree, (8) the State engaged in misconduct that violated his right to a fair trial when the prosecution (a) allegedly appealed to racial bias in referencing the lack of remorse and the use of language in Gates’s text messages and in questioning Gates’s decision to visit the nightclub outside of which the incident occurred and (b) allegedly impugned Gates’s decision to exercise his constitutional right to bear arms, (9) the trial court erroneously denied his proposed jury instructions regarding self-defense, and (10) his right to present a defense was violated by the trial court’s refusal to instruct the jury on justifiable homicide in resistance of a felony. After thoroughly reviewing these claims of error, we conclude that they are without merit.

45 No. 83243-3-I/46

Affirmed and remanded.

WE CONCUR: