IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86678-8-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION EDWARD MOTLEY, JR.,
Appellant.
SMITH, J. — On June 26, 2020, Edward Motley Jr. fought with and robbed
Wesley Benson. Video surveillance footage revealed that during the fight,
Benson fell to the ground and Motley continued to punch Benson numerous
times until Benson’s head was bleeding. Benson was treated at Harborview
Medical Center. Eleven days after Benson’s hospitalization, he suffered a
cardiac arrest. Two days later, Benson was declared brain dead, removed from
life support, and died. Motley was charged and found guilty of murder in the first
degree. Motley appeals. Because sufficient evidence shows that Motley’s attack
was the proximate cause of Benson’s death, we affirm.
FACTS
Background
On June 26, 2020, at about 12:33 p.m., officers responded to 911 calls
that Benson was assaulted and “punched into the floor” in the parking lot of a
shopping plaza on Rainier Avenue South in Seattle. Police recovered video No. 86678-8-I/2
surveillance footage that showed that Motley walked over to Benson, and Motley
and Benson fought. Benson then fell to the ground, and Motley continued to
punch Benson numerous times until Benson’s head was bleeding. Motley went
through and took the contents of Benson’s pockets and Benson’s shoes. Motley
left the scene before police arrived.
Witnesses on the scene reported that Benson had been lying on the
ground for about 15 minutes before police and firefighters arrived on the scene.
Benson was able to answer questions, but his speech was slurred and slow.
Firefighters and emergency medical technicians observed that Benson’s right
temple and left cheek were swollen, his mouth was bloody, his eyes were
bloodshot, and Benson experienced pain in the swollen areas.
Benson was brought to Harborview Medical Center, where he reported he
experienced pain in his jaw and a “squeezing” pain in his head. A urinalysis
showed that Benson had cannabinoids and cocaine in his system.1 Benson also
had a prior history of hypertension and a clipped aneurysm. About midway
through Benson’s hospital stay, he fell out of bed because he was disoriented.
Benson sustained an abrasion on his forehead, and a computerized tomography
(CT) scan found that Benson was in the same condition as he was before the fall
from his bed. Around 10 days into Benson’s hospitalization, Benson suddenly
became less responsive, and his doctors noted that Benson was in an altered
mental state. Eleven days into Benson’s treatment, he suffered a cardiac arrest.
1 Dr. Joshua Jauregui, an emergency physician at Harborview who treated Benson, testified that Benson’s hematoma, bleeding, in his brain and broken jaw were not associated with his cocaine use.
2 No. 86678-8-I/3
Two days later, Benson was declared brain dead and taken off life support.
Motley was charged with murder in the first degree.
Trial
Evidence at Trial
In trial, Dr. Jauregui testified that when Benson was admitted, he
underwent a CT scan. The scan showed that Benson had two subarachnoid
hemorrhages2 and one subdural hematoma.3 The CT scan also noted a mass
effect4 squeezing Benson’s brain.5 Based on the CT scan, Dr. Jauregui
concluded that Benson experienced a blunt force injury, and no evidence existed
of a residual aneurysm. A CT scan of Benson’s face showed that he sustained a
displaced fracture in his right lower jaw, a non-displaced fracture of the anterior
left jawbone, and chronic fractures of the right nasal bone and right lamina
papyracea.6
After Benson died, Dr. Richard Harruff, a medical examiner, conducted a
microscopic analysis of Benson’s lungs. Dr. Harruff’s analysis did not show
evidence of pneumonia, bleeding, or scar tissue. A microscopic analysis of
2 A subarachnoid hemorrhage is bleeding in a deep layer of the brain. A subarachnoid hemorrhage can result from injury or an aneurysm rupture. 3 A subdural hematoma is “bleeding between the surrounding tissues” and the brain. A subdural hematoma can result from trauma or an injury. 4 Dr. Jauregui testified that a mass effect is caused by “blood expanding to where it’s pressing the brain.” 5 Dr. Jauregui testified that there is “limited space in the skull” and if something else occupies the skull besides the brain, the brain “gets squished down.” As the brain squeezes, it can herniate, stop functioning, and ultimately lead to death. 6 The lamina papyracea is a thin bone that is part of an eye socket and next to the nose.
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Benson’s brain showed evidence that his brain was not getting enough oxygen.
Based on the analysis, Dr. Harruff concluded that Benson’s cause of death was
blunt force injury of the head. Dr. Harruff explained that “the underlying cause,
the bottom line is blunt force injury of [the] head. And [Benson’s injury] set off the
sequence of events that ultimately led to his death.”7 In addition, Dr. Harruff
testified that the contributing factors to Benson’s death were heart disease and
lung disease. When asked what role Benson’s preexisting conditions played in
his death, Dr. Harruff explained, There may have been no effect, or they may have predisposed him to an adverse outcome, such as dying. There’s really no way to look at this and say what proportion was due to his pre-existing disease, what proportion was due to his head injury. ... [T]he preexisting conditions are contributing factors in that they were there and they reduced his chances for a good outcome. He wasn’t going to have a good outcome in any case. But in this case, he succumbed to his injuries with or without the pre-existing conditions.
Dr. Harruff concluded that Benson succumbed to his severe head injury despite
his preexisting conditions. Dr. David Carlbom, an intensive care physician who
treated Benson at Harborview, concluded that, “[h]ad the traumatic subarachnoid
not happened, [Benson] would not be hospitalized, he would not have altered
mental status, he wouldn’t have pneumonia or suspected pneumonia or
7 Dr. Harruff further explained, “as a result of blunt force injury, there's subdural and subarachnoid hemorrhage, cerebral cortical contusion with parenchymal and ventricular extension of hemorrhage” and loss of oxygen going to the brain.
4 No. 86678-8-I/5
aspiration pneumonitis, he wouldn’t have had hypoxia. He wouldn’t have had a
cardiac arrest had he not had hypoxia.”
Prosecutor’s Closing Argument
In closing arguments, the prosecutor referenced Motley’s jail calls. The
prosecutor stated that during a jail call, Motley “doesn’t say, I can’t believe they
charged me, they got the wrong guy.” The State then asserts, “What does he
say? He says, [t]hey overcharged me. This was just a mutual fucking fight.
Those were his words.” Motley did not object to the statement. Referring to a
separate jail call, the prosecutor contends that “it’s clear at this point [Motley’s]
been talking to his attorneys about what the various defense theories of the case
might be. . . . Does he tell his friend, I’ve been trying to tell my attorneys you’ve
got the wrong guy.” Motley objected, stating that it was a “comment on pre-trial
silence.” The court overruled Motley’s objection. The prosecutor continued his
closing argument, asserting that Motley does not tell his friend on the call that
“they got the wrong guy.” Instead, Motley told his friend, “This ain’t nothing but a
fucking fistfight. Nothing was taken. I didn’t rob anybody.”
Later in closing, the State addressed its burden of proof stating, “We
operate on a system of beyond a reasonable doubt. And as you heard from
Judge Donohue, a reasonable doubt is a doubt for which a reason exists. So[,]
you need to have a reason to believe that Mr. Benson’s health was so bad prior
to his brain injury . . .” Motley objected, asserting that the State’s argument
misstated the burden of proof, and the court overruled. The State continued, “. . .
to have a reason to believe that Mr. Benson’s health was so bad prior to his brain
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injury, that 11 days later, he was going to have a cardiac arrest and he would die
from it.”
As the prosecutor explained the charges against Motley and the jury
verdict forms, he asked the jury that if it finds that Motley is guilty, enter guilty for
counts one and two. The prosecutor then stated, “At sentencing, the [S]tate is
going to merge [the charges] together. Mr. Motley will be sentenced on one
count of murder.” Motley did not object to the prosecutor’s statement.
ANALYSIS
Sufficient Evidence for Felony Murder
Motley asserts that there was insufficient evidence that he was the
proximate cause of Benson’s death, given the time that passed between the
initial assault and Benson’s death, and the fact that Benson had serious
preexisting health conditions which could have caused cardiac arrest.
This court reviews sufficiency of the evidence claims under a de novo
standard. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).
In a sufficiency of the evidence appeal, “we view the evidence in the light
most favorable to the State and ask whether any rational trier of fact could have
found the elements of the crime beyond a reasonable doubt.” State v. Elmi, 166
Wn.2d 209, 214, 207 P.3d 439 (2009). “A claim of insufficiency admits the truth
of the State’s evidence and all inferences that reasonably can be drawn.” State
v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A person is guilty of felony murder when they “commit[] . . . the crime of
either (1) robbery in the first or second degree . . . and in the course of or in
6 No. 86678-8-I/7
furtherance of such crime or in immediate flight therefrom he or she . . . causes
the death of a person other than one of the participants.” RCW 9A.32.030(1)(c).
“[T]he purpose of the felony murder statute is to establish that once a person
decides to commit an enumerated felony, [they are] responsible for all of the fatal
consequences, intended or not.” State v. Hacheney, 160 Wn.2d 503, 515, 158
P.3d 1152 (2007). For the death to occur in the course of a crime, “there must
be a causal connection such that the death was a probable consequence” and
the causal connection must be clearly established. Hacheney, 160 Wn.2d
at 506; State v. Brown, 132 Wn.2d 529, 608, 940 P.2d 546 (1997). “More than a
mere coincidence of time and place is necessary.” Brown, 132 Wn.2d at 608
(quoting 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
§ 7.5, 225). In addition, to establish proximate cause, the State must establish
that the acts “were both the legal and the actual cause of the death.” State v.
Frahm, 193 Wn.2d 590, 596, 444 P.3d 595 (2019). Actual causation is proven by
establishing a “ ‘physical connection between an act and an injury.’ ” Frahm, 193
Wn.2d at 596 (quoting Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77
(1985)). Legal causation looks at whether “ ‘the connection between the ultimate
result and the act of the defendant is too remote or insubstantial to impose
liability.’ ” Frahm, 193 Wn.2d at 597 (quoting Schooley v. Pinch’s Deli Market,
Inc., 14 Wn.2d 468, 478-79, 951 P.2d 749 (1998)).
Motley urges us to evaluate sufficiency of the evidence under a proximate
cause standard that determines whether the act “must have at least created a
more than 50 [percent] diminution in the chance of survival.” This is the incorrect
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standard. Rather, this court must evaluate whether the jury could have found
beyond a reasonable doubt that Motley committed robbery, and that a causal
connection exists between the robbery and Benson’s death. Motley does not
contest the robbery element on appeal. Therefore, we review whether a causal
connection exists between Motley’s attack during the robbery and Benson’s
cardiac arrest.
At trial, two doctors testified that after assessing Benson’s case, they
concluded the blunt force trauma caused by Motley ultimately led to Benson’s
death. Dr. Harruff and Dr. Carlbom concluded that a causal connection exists
between the injuries Benson sustained from Motley’s actions and Benson’s
death.
The defense’s witness, Dr. Ronald Auer8, testified that Benson’s
hematoma was not the cause of the cardiac arrest because by day 11, the
hematoma was unchanged. Rather, Dr. Auer concluded that Benson’s death
was not caused by his traumatic brain injury because “there’s an abundance of
high blood pressure, a very diseased heart[,]” and lung disease. Motley claims
that but for causation was not established because the evidence did not show
that the brain injury was Benson’s cause of death, and not emphysema, heart
disease, or aspiration pneumonitis. Motley’s argument misinterprets proximate
causation. The jury instructions stated: “The term ‘proximate cause’ means a
cause which, in a direct sequence, unbroken by any new independent cause,
8 Dr. Auer is a physician scientist at the Royal University Hospital in Saskatchewan, Canada. Dr. Auer does autopsies and biopsies in his daily work.
8 No. 86678-8-I/9
produces the death, and without which the death would not have happened.
There may be more than one proximate cause of death.”
Thus, the State did not need to establish that Benson’s traumatic brain
injury was the only proximate cause of death. Although Motley speculates that
Benson’s death could have been caused by his preexisting conditions, Motley
does not establish that Benson’s heart disease or lung disease was an
independent cause that Benson would have died from regardless of the traumatic
brain injury. In viewing the evidence in the light most favorable to the State,
substantial evidence supported that the proximate cause of Benson’s death was
the traumatic brain injury he sustained due to Motley’s actions.
Prosecutor Misconduct in Closing Arguments
Motley contends that the State committed prosecutor misconduct because
the State improperly: (1) shifted the burden of proof, (2) commented on Motley’s
right to remain silent, (3) impugned defense counsel, and (4) disregarded a
pretrial ruling. The State maintains that Motley’s claims are meritless, and if they
had merit, Motley fails to show that the misconduct was prejudicial.
We review claims of prosecutorial misconduct under an abuse of
discretion standard. State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995).
To prove that prosecutorial misconduct occurred, “the defendant must
establish ‘that the prosecutor’s conduct was both improper and prejudicial in the
context of the entire record and the circumstances at trial.’ ” State v. Thorgerson,
172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal quotation marks omitted)
(quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008) (plurality
9 No. 86678-8-I/10
opinion)). In addition, the defendant must show “that ‘there is substantial
likelihood [that] the instances of misconduct affected the jury’s verdict.’ ”
Thorgerson, 172 Wn.2d at 443 (alteration in original) (internal quotation marks
omitted) (quoting Magers, 164 Wn.2d at 191)). This court considers “any
prejudice from error against the backdrop of the trial as a whole.” State v. Taylor,
18 Wn. App. 2d 568, 579, 490 P.3d 263 (2021). If the defendant did not object to
the misconduct at trial, it constitutes as a waiver “ ‘unless the remark is so
flagrant and ill-intentioned that it causes an enduring and resulting prejudice that
could not have been neutralized by an admonition to the jury.’ ” Thorgerson, 172
Wn.2d at 443 (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).
Under this standard, the defendant must show that “(1) ‘no curative instruction
would have obviated any prejudicial effect on the jury’ and (2) the misconduct
resulted in prejudice that ‘had a substantial likelihood of affecting the jury
verdict.’ ” State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting
Thorgerson, 172 Wn.2d at 455).
a. Burden of Proof
During trial, “a prosecutor has wide latitude to argue reasonable
inferences from the evidence.” Thorgerson, 172 Wn.2d at 453. But, the
prosecutor cannot “argue that the burden of proof rests with the defendant.”
Thorgerson, 172 Wn.2d at 453.
In the State’s closing argument, Motley contends that the court erred in
overruling his objection to the State’s assertion that the jury would need “[t]o
have a reason to believe that Mr. Benson’s health was so bad prior to his brain
10 No. 86678-8-I/11
injury, that 11 days later, he was going to have a cardiac arrest and he would die
from it.” The argument made by the State did not shift the burden of proof.
Rather, it was a comment on the amount of evidence supporting that the
traumatic brain injury was the cause of the cardiac arrest. After making that
statement, the prosecutor referred to the testimony and other evidence that the
traumatic brain injury was the underlying cause of Benson’s cardiac arrest.9
The statement also was an argument that Benson’s preexisting health
conditions were not an intervening cause of Benson’s death. “An intervening
cause is a ‘force that actively operates to produce harm to another after the
actor’s act or omission has been committed.’ ” Frahm, 193 Wn.2d at 600
(quoting Klein v. Pyrodyne Corp., 117 Wn.2d 1, 17 n.7, 810 P.2d 917, 817 P.2d
1359 (1991)). If the intervening act is not reasonably foreseeable, it is a
superseding act and is sufficient to relieve a defendant of liability. Frahm, 193
Wn.2d at 600. In the State’s closing, it asserted that for the jury to vote not guilty,
it would have to believe that Benson’s health conditions were a superseding act.
The comment was not an improper articulation about the burden of proof, but a
proper reference to jury instruction 18.
Even if the State’s comment was burden-shifting, a curative instruction
would have negated any prejudicial effect. Looking at the record in its entirety,
9 The State continued, “Dr. Carlbom, the attending neurocritical care physician, Dr. Harruff, the chief medical examiner, Dr. Marshall, the neuropathologist, all of them issued their opinions in July of 2020 based on the medical evidence they reviewed without any sort of stake in the outcome of the trial three years later. They all agreed the traumatic brain injury is an underlying cause, a proximate cause.”
11 No. 86678-8-I/12
the correct burden was stated several times. Prior to the objected statement, the
prosecutor stated, “We operate on a system of beyond a reasonable doubt. And
as you heard from Judge Donohue, a reasonable doubt is a doubt for which a
reason exists.” When the court read the jury instructions, it stated, “You must
disregard any remark, statement, or argument that is not supported by the
evidence or the law in my instructions.” Jury instruction 3 also stated the correct
burden: “The [S]tate is the plaintiff and has the burden of proving each element of
each crime beyond a reasonable doubt. The defendant has no burden of proving
that a reasonable doubt exists. A defendant is presumed innocent. This
presumption continues throughout the entire trial.” Given that the record contains
many references to the correct burden of proof, a curative instruction would have
offset any possible prejudice. The court did not abuse its discretion when it
overruled Motley’s burden-shifting objection.
b. Motley’s Jail Calls
The prosecutor may not “make closing arguments relating to a defendant’s
silence to infer guilt.” State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285
(1996). A defendant’s Fifth Amendment right to remain silence “can be
circumvented by the State ‘just as effectively by questioning the arresting officer
or commenting in closing argument as by questioning defendant himself.’ ”
Easter, 130 Wn.2d at 236 (quoting State v. Fricks, 91 Wn.2d 391, 396, 588 P.2d
1328 (1979)).
Motley asserted that the State’s comments regarding his failure to tell his
friend in a jail call that “they got the wrong guy,” improperly suggested that
12 No. 86678-8-I/13
Motley’s silence meant he was guilty. But Motley did not remain silent. On the
jail call, Motley discussed the felony murder charge, stating, “they overcharged
me, man. And this is – man, that is a first degree felony murder. That’s a fucking
first degree felony murder. . . . Tired of that, man. Mutual fucking fight.” Motley’s
right to remain silent is not at issue because he discussed the events of the
charge and his opinion of the charge. In addition, our court has also held that jail
calls are admissible evidence. State v. Haq, 166 Wn. App. 221, 261-62, 268
P.3d 997 (2012) (holding that jail phone records are admissible if relevant and if
its probative value is not outweighed by its potential prejudice). The State
argued reasonable inferences from Motley’s jail call statements. The court did
not abuse its discretion.
c. Comment on Motley’s Communication with his Attorney
“It is improper for the prosecutor to disparagingly comment on defense
counsel's role or impugn the defense lawyer's integrity.” Thorgerson, 172 Wn.2d
at 451. Comments are misconduct “if they ‘fundamentally undermine’ the
attorney’s role or integrity.” State v. Fleeks, 25 Wn. App. 2d 341, 377, 523 P.3d
220 (2023) (quoting State v. Lindsay, 180 Wn.2d 423, 433, 326 P.3d 125 (2014)).
Motley claims that the State impugned the defense attorney when it
referenced Motley’s jail call and stated, “In the third call, it’s clear at this point
he’s been talking to his attorneys about what the various defense theories of the
case might be.”10 Motley objected, but his objection was to the State’s comments
10 The State then proceeded, “[A]nd he tells his friend – well, let me ask you this: Does he tell his friend, I’ve been trying to tell my attorneys you’ve got the wrong guy. I did not fight this man.”
13 No. 86678-8-I/14
on Motley’s statement in the jail call.11 Because Motley did not object at trial to
the State impugning the defense attorney, we must determine whether the
State’s remark was so flagrant and ill-intentioned that the resulting prejudice was
beyond repair. No evidence indicates that the State’s comment was intentional,
nor does it rise to the level of improper. See State v. Negrete, 72 Wn. App. 62,
66, 863 P.2d 137 (1993) (holding that the State’s comment that “[defense
counsel] is being paid to twist the words of the witnesses” was improper); see
Lindsay, 180 Wn.2d at 433 (holding that it was improper for the State to
reference the defense’s argument as “a crock,” and contended to the jury, “[w]hat
you’ve been pitched for the last four hours is a crock”). In fact, this appears to be
the State once again arguing an inference from what Motley’s statements in the
jail calls did not include. Because the State did not impugn the defense, no error
occurred.
d. Providing Sentencing Information to the Jury
Our Supreme Court has long held that it is improper for a jury to deliberate
the question “of the sentence to be imposed by the court,” except in capital
cases. State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960). When a jury
does not have a sentencing function, the court should advise it to “ ‘reach its
verdict without regard to what sentence might be imposed.’ ” Shannon v.
United States, 512 U.S. 573, 579, 114 S. Ct. 2419, 2419, 129 L. Ed. 2d 459
11 Motley’s objection was on the State’s “comment on the pre-trial silence.”
14 No. 86678-8-I/15
(1994) (quoting Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091, 2095,
45 L. Ed. 2d 1 (1975)).
During pretrial motions, the court granted a “motion to exclude evidence or
argument concerning penalty the [d]efendant is subject to if convicted.” In
closing arguments, while explaining Motley’s charges, the State detailed, “At
sentencing, the [S]tate is going to merge [the charges] together. Mr. Motley will
be sentenced on one count of murder.” Motley did not object to this statement.
The State directly referred to Motley’s potential sentencing if he were found
guilty, this was misconduct and in violation of Motley’s pretrial motion to exclude
evidence or argument concerning the penalty the defendant is subject to if
convicted.
Nonetheless, the State’s misconduct was not likely to alter the outcome of
Motley’s trial. When analyzing the entire record, the jury instructions addressed
whether the jury could consider Motley’s potential sentence, explaining that “[it]
may not consider the fact that punishment may follow conviction.” Additionally,
the court also clarified in jury instructions that “[it] must disregard any remark,
statement, or argument that is not supported by the evidence or the law in [the
court’s] instructions.” If objected to, the State’s comment on Motley’s potential
sentence was curable, and the proper instruction was clarified in jury instructions.
The misconduct did not have a substantial likelihood of affecting the jury verdict.
15 No. 86678-8-I/16
e. Cumulative Error
Motley asserts a substantial likelihood exists that the prosecutor’s
repetitive misconduct resulted in a cumulative prejudicial effect. Thus, Motley
claims a new trial is warranted.
Our Supreme Court has “indicated a trial court should grant a mistrial only
when the defendant has been so prejudiced that nothing short of a new trial can
ensure that the defendant will be tried fairly.” Taylor, 18 Wn. App. 2d at 579
(citing State v. Rodriguez, 146 Wn.2d 260, 270, 45 P.3d 541 (2002)). As
concluded supra, the State committed one instance of prosecutor misconduct in
its closing argument and the comment was curable.
We affirm.
WE CONCUR: