FILED MAY 8, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34837-7-III Respondent, ) ) v. ) ) JASON DONTE WILLIAMS, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. — Jason Williams appeals his convictions for second degree murder
and three counts of first degree assault, primarily arguing that the court erred in giving an
instruction advising jurors that revenge did not constitute self-defense. We affirm.
FACTS
This case involved a shooting in the drive-through lane of a Moses Lake Jack-in-
the-Box restaurant around 1:30 a.m. on January 18, 2015. After a night of heavy
drinking following a family wedding, Mr. Williams and his wife, Martha Mejia, pulled
into the drive-through lane on their way home. Ms. Mejia was driving. A car driven by
Cynthia Martinez also pulled into the drive-through lane behind the Mejia-Williams
vehicle. There were four occupants of Ms. Martinez’s vehicle, all of whom also had
engaged in heavy drinking. No. 34837-7-III State v. Williams
Deciding to leave, Ms. Mejia tried to back up, leading Ms. Martinez to honk her
car’s horn to stop Mejia from colliding with her. Ms. Mejia got out of the car and began
arguing with Ms. Martinez.1 Christian Guerra got out of the car to urge Mejia to calm
down. Ms. Mejia called for assistance from Mr. Williams. Williams began arguing with
Guerra and the two men began fighting between the two vehicles. Williams was knocked
to the ground and Guerra continued beating on him.
The fight eventually ended and the combatants returned to their vehicles. Ms.
Martinez again attempted to back up to escape the drive-through lane, but hit a curb and
halted. Ms. Mejia got out and attempted to take pictures of Martinez’s car’s license plate.
A female passenger in the Martinez vehicle yelled at Ms. Mejia to stop taking pictures.
Mejia responded by going to the car, reaching through the window, and grabbing the
passenger by her hair. Another passenger got out and pulled Mejia away, tossing her to
the ground.
Williams then got out and returned to the Martinez car and attempted to punch
Guerra through an open window. Guerra got out of the car and the two men engaged in
another fight between the two vehicles. Once again losing the encounter, Williams
walked back to his car and attention turned to where Mejia was in a struggle. Williams
returned with a gun and pointed it at Guerra, who raised his hands above his head.
1 The restaurant’s video camera captured much, although not all, of the ensuing events.
2 No. 34837-7-III State v. Williams
Williams began firing at Guerra and at the car. Wounded, Guerra fell to the ground.
Williams and Mejia drove to their house. Martinez and her passengers drove Guerra to
the hospital where he expired.
Williams was charged with one count of first degree murder, three counts of
attempted first degree murder, and three counts of first degree assault. All counts
contained a firearm enhancement. The case eventually proceeded to jury trial. The
defense obtained jury instructions on self-defense, defense of others, and no duty to
retreat. Over defense objection, the State obtained an instruction on revenge:
Justifiable homicide committed in the defense of the slayer, or “self- defense,” is an act of necessity. The right of self-defense does not permit action done in retaliation or revenge.
Clerk’s Papers (CP) at 73 (Instruction 26).
The parties argued the case under the competing theories of self-defense or
unjustified retaliation. The jury convicted Mr. Williams of the included offense of
second degree murder and on the three counts of first degree assault. All four offenses
were committed with a firearm.
After receiving a mitigated exceptional sentence that still tallied 40 years, Mr.
Williams appealed to this court. A panel considered the case without hearing argument.
3 No. 34837-7-III State v. Williams
ANALYSIS
This appeal presents two claims.2 We initially will consider Mr. Williams’ claim
that the court erred by giving the revenge instruction. We then will turn to a contention
that misconduct in closing argument requires a new trial.
Jury Instruction
The first contention is that the trial court erred in giving the revenge instruction,
with Mr. Williams arguing that it unduly limited his right to act in self-defense by
focusing on the element of necessity. Since the record supported the instruction, the trial
court did not abuse its discretion.
Settled law governs this contention. Jury instructions are sufficient if they correctly
state the law, are not misleading, and allow the parties to argue their respective theories of
the case. State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403 (1968). The trial court also
is granted broad discretion in determining the wording and number of jury instructions.
Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983). Discretion is abused when it
2 Mr. Williams also filed a personal statement of additional grounds that we will not separately discuss. Some of the contentions are merely variations on his counsel’s argument, while the other matters involve factual allegations outside of the record of this case. His remedy, if any, for those claims is to bring a personal restraint petition in which he can present his evidence in support of the arguments and allow the State to do the same. See, e.g., State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995); State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).
4 No. 34837-7-III State v. Williams
is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The essence of Mr. Williams’ argument here is that the instruction was erroneous
because it focused on necessity rather than his subjective view of the need for self-defense.
This is not a proper comparison of the purposes of the instructions. The standard for using
self-defense was set out in Instruction 16. CP at 62. Following that instruction were a
series of instructions focusing on differing aspects of the justifiable use of force. For
instance, Instruction 18 advised jurors that a person acting in self-defense can only use
necessary force. CP at 64. The definition of “necessary” was set out in Instruction 25. CP
at 72. It was in this context that Instruction 26 advised jurors that revenge was not
necessity. CP at 73.
Instruction 26 did not purport to be the complete law of self-defense, just as the other
instructions supporting and explaining Instruction 16 did not themselves fully define the
concept. Instead, each instruction had a specific part to play in explaining the concept of
self-defense in its totality. Instruction 26 was not misleading and did allow the State to
argue its theory of the case—Mr. Williams was acting out of vengeance rather than
necessity. Nothing in that instruction prevented Mr. Williams from arguing his theory of
the case.
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FILED MAY 8, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34837-7-III Respondent, ) ) v. ) ) JASON DONTE WILLIAMS, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. — Jason Williams appeals his convictions for second degree murder
and three counts of first degree assault, primarily arguing that the court erred in giving an
instruction advising jurors that revenge did not constitute self-defense. We affirm.
FACTS
This case involved a shooting in the drive-through lane of a Moses Lake Jack-in-
the-Box restaurant around 1:30 a.m. on January 18, 2015. After a night of heavy
drinking following a family wedding, Mr. Williams and his wife, Martha Mejia, pulled
into the drive-through lane on their way home. Ms. Mejia was driving. A car driven by
Cynthia Martinez also pulled into the drive-through lane behind the Mejia-Williams
vehicle. There were four occupants of Ms. Martinez’s vehicle, all of whom also had
engaged in heavy drinking. No. 34837-7-III State v. Williams
Deciding to leave, Ms. Mejia tried to back up, leading Ms. Martinez to honk her
car’s horn to stop Mejia from colliding with her. Ms. Mejia got out of the car and began
arguing with Ms. Martinez.1 Christian Guerra got out of the car to urge Mejia to calm
down. Ms. Mejia called for assistance from Mr. Williams. Williams began arguing with
Guerra and the two men began fighting between the two vehicles. Williams was knocked
to the ground and Guerra continued beating on him.
The fight eventually ended and the combatants returned to their vehicles. Ms.
Martinez again attempted to back up to escape the drive-through lane, but hit a curb and
halted. Ms. Mejia got out and attempted to take pictures of Martinez’s car’s license plate.
A female passenger in the Martinez vehicle yelled at Ms. Mejia to stop taking pictures.
Mejia responded by going to the car, reaching through the window, and grabbing the
passenger by her hair. Another passenger got out and pulled Mejia away, tossing her to
the ground.
Williams then got out and returned to the Martinez car and attempted to punch
Guerra through an open window. Guerra got out of the car and the two men engaged in
another fight between the two vehicles. Once again losing the encounter, Williams
walked back to his car and attention turned to where Mejia was in a struggle. Williams
returned with a gun and pointed it at Guerra, who raised his hands above his head.
1 The restaurant’s video camera captured much, although not all, of the ensuing events.
2 No. 34837-7-III State v. Williams
Williams began firing at Guerra and at the car. Wounded, Guerra fell to the ground.
Williams and Mejia drove to their house. Martinez and her passengers drove Guerra to
the hospital where he expired.
Williams was charged with one count of first degree murder, three counts of
attempted first degree murder, and three counts of first degree assault. All counts
contained a firearm enhancement. The case eventually proceeded to jury trial. The
defense obtained jury instructions on self-defense, defense of others, and no duty to
retreat. Over defense objection, the State obtained an instruction on revenge:
Justifiable homicide committed in the defense of the slayer, or “self- defense,” is an act of necessity. The right of self-defense does not permit action done in retaliation or revenge.
Clerk’s Papers (CP) at 73 (Instruction 26).
The parties argued the case under the competing theories of self-defense or
unjustified retaliation. The jury convicted Mr. Williams of the included offense of
second degree murder and on the three counts of first degree assault. All four offenses
were committed with a firearm.
After receiving a mitigated exceptional sentence that still tallied 40 years, Mr.
Williams appealed to this court. A panel considered the case without hearing argument.
3 No. 34837-7-III State v. Williams
ANALYSIS
This appeal presents two claims.2 We initially will consider Mr. Williams’ claim
that the court erred by giving the revenge instruction. We then will turn to a contention
that misconduct in closing argument requires a new trial.
Jury Instruction
The first contention is that the trial court erred in giving the revenge instruction,
with Mr. Williams arguing that it unduly limited his right to act in self-defense by
focusing on the element of necessity. Since the record supported the instruction, the trial
court did not abuse its discretion.
Settled law governs this contention. Jury instructions are sufficient if they correctly
state the law, are not misleading, and allow the parties to argue their respective theories of
the case. State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403 (1968). The trial court also
is granted broad discretion in determining the wording and number of jury instructions.
Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983). Discretion is abused when it
2 Mr. Williams also filed a personal statement of additional grounds that we will not separately discuss. Some of the contentions are merely variations on his counsel’s argument, while the other matters involve factual allegations outside of the record of this case. His remedy, if any, for those claims is to bring a personal restraint petition in which he can present his evidence in support of the arguments and allow the State to do the same. See, e.g., State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995); State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).
4 No. 34837-7-III State v. Williams
is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The essence of Mr. Williams’ argument here is that the instruction was erroneous
because it focused on necessity rather than his subjective view of the need for self-defense.
This is not a proper comparison of the purposes of the instructions. The standard for using
self-defense was set out in Instruction 16. CP at 62. Following that instruction were a
series of instructions focusing on differing aspects of the justifiable use of force. For
instance, Instruction 18 advised jurors that a person acting in self-defense can only use
necessary force. CP at 64. The definition of “necessary” was set out in Instruction 25. CP
at 72. It was in this context that Instruction 26 advised jurors that revenge was not
necessity. CP at 73.
Instruction 26 did not purport to be the complete law of self-defense, just as the other
instructions supporting and explaining Instruction 16 did not themselves fully define the
concept. Instead, each instruction had a specific part to play in explaining the concept of
self-defense in its totality. Instruction 26 was not misleading and did allow the State to
argue its theory of the case—Mr. Williams was acting out of vengeance rather than
necessity. Nothing in that instruction prevented Mr. Williams from arguing his theory of
the case. Accordingly, Instruction 26 was proper. Dana, 73 Wn.2d at 536-537.
Although he raises several distinct arguments against Instruction 26, they all flow
from his perception that the instruction is erroneous. We need not address the contentions
5 No. 34837-7-III State v. Williams
separately because the instruction has already been upheld by State v. Studd, 137 Wn.2d
533, 550, 973 P.2d 1049 (1999). Studd, a consolidated appeal addressing six different
cases, primarily involved challenges to pattern self-defense instructions. Some of the
cases also presented additional challenges. The Pierce County case involving defendant
Lee Cook, Jr., was one of them.
The trial court had given an instruction identical to the one at issue in this case.
Id. Arguing that the instruction improperly emphasized the State’s theory of the case,
Mr. Cook claimed that the instruction had never been approved and was improper. Id.
The court disagreed, noting that it was consistent with the court’s decision in State v.
Janes, 121 Wn.2d 220, 240, 850 P.2d 495 (1993). Concluding its discussion of the
instruction, the Studd court stated:
We find that the instruction correctly stated the law, and did not unfairly emphasize the State’s theory of the case or, in any way, comment upon the evidence.
137 Wn.2d at 550.
Studd answers Mr. Williams’ argument here. The instruction was not erroneous.
Moreover, this court, of course, is bound by a decision of the Washington Supreme
Court. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). The trial court correctly
gave the revenge instruction under these facts. There was no error.
6 No. 34837-7-III State v. Williams
Closing Argument
Mr. Williams next argues, quite correctly, that the prosecutor erred in closing
argument by challenging the jury to articulate any reasonable doubt it might be
entertaining. The State now, also correctly, concedes the error. It argues, and we agree,
that the error was not prejudicial.
In closing argument, the prosecutor told jurors that “if you can’t assign a reason to
that doubt, if you can’t articulate or talk about what that doubt is, at that time you’re
beyond a reasonable doubt.” Report of Proceedings (RP) at 2563. There was no
objection by defense counsel.
It is improper for a prosecutor to urge jurors to “fill in the blanks” or otherwise
force them to explain why they have a reasonable doubt. State v. Kalebaugh, 183 Wn.2d
578, 584-585, 355 P.3d 253 (2015); State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653
(2012). This error “subtly shifts the burden to the defense.” Emery, 174 Wn.2d at 760.
We agree with the parties that the statement was erroneous.
However, erroneous statements of this kind are not automatically grounds for
reversal. Id. at 762-763. If defendant did not object at trial, the error is deemed waived
unless the prosecutor’s misconduct was so flagrant and ill-intentioned that it could not
have been neutralized by a curative instruction. Id. at 760-761. The “flagrant and ill-
intentioned” standard for misconduct requires the same “strong showing of prejudice” as
the test for manifest constitutional error under RAP 2.5(a). State v. O’Donnell, 142 Wn.
7 No. 34837-7-III State v. Williams
App. 314, 328, 174 P.3d 1205 (2007). Under this heightened 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. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43
(2011).
The prosecutor’s error was not prejudicially harmful under this demanding
standard. The prosecutor’s remark immediately followed a statement where he told
jurors that the burden of proof “always” remained “at this table” and was the only
statement of its kind occurring during a lengthy closing argument. RP at 2563. He
concluded his argument by requesting that jurors find the defendant guilty of first degree
murder of Mr. Guerra and attempted murder of the other three. He also told jurors that if
they did not agree, second degree murder of Mr. Guerra and either first or second degree
assault of the others were appropriate verdicts. RP at 2606. The jury rejected the greater
charge in each instance and returned verdicts on the lesser offenses.
In the context of the argument, it is not likely that the jury considered the
prosecutor’s remarks as a shift in the burden of proof. More critically, the error was close
enough that an objection could easily have led to a correction or clarification of the
statement. This passing remark simply was not so egregious that the court could not have
cured the problem. Although erroneous, the remark simply was not so flagrant that the
fairness of this trial was impacted.
8 No. 34837-7-III State v. Williams
The convictions are affirmed. 3
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, A.CJ.
3 Mr. Williams also asks that appellate costs be waived. In light of the prosecutor's statement that costs will not be sought, this issue is moot.