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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 70347-1-
Respondent, DIVISION ONE
v.
JASON JACOB-MICHAEL MACK, UNPUBLISHED
Appellant. FILED: July 29, 2013
Cox, J. - Jason Mack was convicted of second degree felony murder, but
the jury could not reach a verdict on the alternative charge of second degree
intentional murder. On appeal, he claims that the trial court abused its discretion
when it denied his request for a lesser included offense instruction for the
intentional murder charge. He further asserts that the prosecutor committed
misconduct during closing argument that requires reversal. Lastly, he contends
the trial court violated his right to confrontation when it excluded evidence related
to a trial witness's potential bias. We disagree with all claims and affirm.
In 2009, Brian Garner and his girlfriend, Tiffany Sheppler, went to a bar in
Longview, Washington. Sheppler and Garner got into an argument with Mack
and Tashenna Woodward, Mack's girlfriend.
Later that night, Garner got into a physical fight with two other men, Lee
Pope and Timothy Mitchell. During the fight, Garner was stabbed in the chest.
Three witnesses testified that they saw Mack briefly join the fight and make a No. 70347-1-1/2
stabbing motion at Garner's chest. Soon after, Garner died from the wound. An
autopsy revealed that a single edged blade caused a 3.75 to 4 inch wound and
cut his pulmonary artery.
Woodward testified that Mack gave her a knife immediately after the fight
and told her that "the cops were coming because that guy got hurt or something."
Mack then fled the scene and went to his house to say goodbye to his child. He
eventually turned himself in Arizona and waived extradition.
The State charged Mack with second degree intentional murder of Garner
(count I) and second degree felony murder as an alternative (count II). Both
counts included deadly weapon allegations.
The jury was unable to reach a verdict for count I, but it found Mack guilty
of count II and the deadly weapon allegation.
Mack appeals.
LESSER INCLUDED OFFENSE INSTRUCTION
Mack argues that the trial court abused its discretion when it denied his
request for a lesser included first degree manslaughter jury instruction for count I
(second degree intentional murder). Specifically, he argues that he was entitled
to the manslaughter instruction because the evidence suggested only that he
intentionally stabbed Garner, but he did not intend to kill him.1 We disagree.
1Appellant's Opening Brief at 12-13. No. 70347-1-1/3
In Washington, the right to a lesser included offense instruction is
statutory.2 A defendant is entitled to an instruction of a lesser included offense if the two prongs of the State v. Workman test are met.3 Under the legal prong, each element of the lesser offense must be a necessary element of the charged
offense.4 Under the factual prong, the evidence presented in the case must
support an inference that only the lesser offense was committed to the exclusion
ofthe charged offense.5 The State correctly concedes that all the elements of RCW
9A.32.060(1 )(a) (first degree manslaughter) fall within the elements of RCW
9A.32.050(1 )(a) (second degree intentional murder).6 Thus, the legal prong of the Workman test is satisfied. Thus, the issue is whether the factual prong is
satisfied.
We view the evidence that purports to support a requested instruction in
the light most favorable to the party who requested the instruction at trial.7
2 RCW 10.61.006 ("In all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he or she is charged in the indictment or information.").
3 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
4 State v. Berlin. 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997) (citing Workman, 90 Wn.2d at 447-48).
5 State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).
6 Brief of Respondent at 12 (citing Berlin. 133 Wn.2d at 550-51 (holding that "first and second degree manslaughter are lesser included offenses of second degree intentional murder and instructions should be given to a jury when the facts support such an instruction")).
7 Fernandez-Medina, 141 Wn.2d at 455-56. No. 70347-1-1/4
Where a trial court's refusal to give instructions is based on the facts of the case,
we review this factual determination for abuse of discretion.8 A trial court abuses
its discretion when its decision is manifestly unreasonable or based upon
untenable grounds or reasons.9 Under RCW 9A.32.060(1 )(a), first degree manslaughter requires proof that
the defendant recklessly caused the death of another. In contrast, under RCW
9A.32.050(1 )(a), second degree intentional murder requires proof that the
defendant had "intent to cause the death of another person but without
premeditation" and that the defendant did "cause[ ] the death of such person or of
a third person."
To determine whether the factual prong is satisfied, we must determine
whether there was evidence affirmatively establishing Mack's guilt of the lesser
offense, first degree manslaughter.10 "'It is not enough that the jury might simply disbelieve the State's evidence.'"11 "If the evidence would permit a juryto
rationally find a defendant guilty of the lesser offense and acquit him of the
greater, a lesser included offense instruction should be given."12
8 State v. LaPlant, 157 Wn. App. 685, 687, 239 P.3d 366 (2010).
9 State v. Neal. 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
10 See, e.g., Berlin, 133 Wn.2d at 551; State v. Perez-Cervantes, 141 Wn.2d 468, 481, 6 P.3d 1160 (2000).
11 Perez-Cervantes, 141 Wn.2d at 481 (quoting State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990)). 12 Berlin, 133 Wn.2d at 551. No. 70347-1-1/5
In State v. Perez-Cervantes, the supreme court addressed whether the
trial court properly refused to give instructions on the lesser included offenses of
first degree and second degree manslaughter.13 In concluding that the trial court did not err, it considered the argument that Perez-Cervantes only "meant to
assault Mr. Thomas, not kill" him.14 The court rejected this argument because
Perez-Cervantes was unable to "overcome the presumption that an actor intends
the natural and foreseeable consequences of his conduct."15 The court explained that the State's evidence showed that Perez-Cervantes attacked
Thomas with a knife twice after Thomas had been kicked and beaten.16 The
court stated that a "jury may infer criminal intent from a defendant's conduct
where it is plainly indicated as a matter of logical probability."17 "Whatever Perez- Cervantes' subjective intent, his objective intent to kill was manifested by the
evidence admitted at trial."18
Here, the evidence shows that Mack intentionally stabbed Garner.
Whether the evidence also showed that Mack merely acted recklessly and not
intentionally when he did so is the question. Mack fails in his burden to
overcome the presumption that he intended the natural and foreseeable
13 141 Wn.2d 468, 480-82, 6 P.3d 1160 (2000).
14 jd, at 481.
15 id
16 \±
17 Ji 18 Id. at 482. No. 70347-1-1/6
consequences of his action: stabbing Garner in the chest with a blade that
caused a 3.75 to 4 inch wound. Instead, he argues that there was no evidence
that he made statements about intending to kill Garner or intending to sever
Garner's pulmonary artery. But the absence of such statements does not negate
the objective showing of intent evidenced by his actions. As in Perez-Cervantes,
Mack fails to show that the trial court abused its discretion when it refused to give
Mack's requested instruction.
Mack argues that only "slight[ ] evidence" is needed to support the lesser
included instruction. But the proper standard is whether there is evidence to
affirmatively establish that the defendant is guilty ofonly the lesser offense.19 For the reasons we have already explained in this opinion, he fails to meet that
standard.
Mack also contends that the jury's inability to reach a verdict for the
second degree intentional murder charge "shows the reasonableness of [the]
conclusion" that Mack intentionally stabbed Garner but did not intend to kill him.
Speculation on why the jury could not reach a verdict on the other charge does
not help. The fact remains that Mack failed to meet his burden to convince the
trial court that there was affirmative evidence that only the lesser crime was
committed.
Finally, Mack argues the trial court's refusal to instruct on first degree
manslaughter denied him his Fourteenth Amendment right to due process. But
"due process requires that a lesser included offense instruction be given [only]
19 Berlin, 133 Wn.2d at 551. No. 70347-1-1/7
when the evidence warrants such an instruction."20 For the reasons discussed
above, the evidence in this case did not warrant an instruction on first degree
manslaughter. There was no denial of due process.
PROSECUTORIAL MISCONDUCT
Mack argues that the prosecutor made improper statements during closing
argument that prejudiced him. Specifically, he argues that the prosecutor made
an improper "fill in the blank" argument. He also argues that the prosecutor
disparaged the role of defense counsel and impugned counsel's integrity. We
hold that Mack fails to establish that these comments require reversal due to
prejudice.
A defendant claiming prosecutorial misconduct bears the burden of
establishing that the challenged conduct was both improper and prejudicial.21 "The court reviews a prosecutor's conduct in the full trial context, including the
evidence presented, the total argument, the issues in the case, the evidence
addressed in argument, and the jury instructions."22 "Once a defendant establishes that a prosecutor's statements are
improper, we determine whether the defendant was prejudiced" under one of two
different ways.23 First, if the defendant objected to the allegedly improper
20 Hopper v. Evans, 456 U.S. 605, 611, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982).
21 State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).
22 State v. Calvin, No. 67627-0, 2013 WL 2325121, *5 (Wash. Ct. App. May 28, 2013).
23 State v. Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012). No. 70347-1-1/8
statements, "the defendant must show that the prosecutor's misconduct resulted
in prejudice that had a substantial likelihood of affecting the jury's verdict."24
Second, ifthe defendant failed to object at trial, "the defendant is deemed to
have waived any error, unless the prosecutor's misconduct was so flagrant and il
intentioned that an instruction could not have cured the resulting prejudice."25 The supreme court has stated that "[rjeviewing courts should focus less on
whether the prosecutor's misconduct was flagrant or ill intentioned and more on
whetherthe resulting prejudice could have been cured."26
"Fill in the Blank" Argument
Mack first argues that the prosecutor made an improper "fill in the blank"
argument during closing argument that prejudiced him. We conclude that this
argument was improper, but it was not prejudicial because it could have been
cured by a proper instruction.
It is improper for a prosecutor to use a "fill in the blank" argument during
closing argument.27 A "fill in the blank" argument is when a prosecutor states that the "jury must be able to articulate its reasonable doubt by filling in the
24 Id,
25 \±
26 jd, at 762.
27 Id. at 759-60.
8 No. 70347-1-1/9
blank."28 This type of argument is improper because it "subtly shifts the burden to the defense."29
In State v. Emery, the supreme court concluded that the State made an
improper "fill in the blank argument."30 During its closing argument, the State, without objection by the defendants, used a PowerPoint slide to state the
following:
[l]n 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.[31] The court explained this "fill in the blank" argument was improper.32 Despite this conclusion, however, the court held that the defendants could not show that the
statement was "incurable or prejudicial."33 Because they did not object to the slide at trial, the court considered whether they were prejudiced under the
"heightened standard": "[T]he defendant must show that (1) 'no curative
instruction would have obviated any prejudicial effect on the jury' and (2) the
28 id, at 760.
29 id, 30 174 Wn.2d 741, 759, 278 P.3d 653 (2012).
31 Jd, at 750-51.
32 id, at 759-60.
33 Id. at 765. No. 70347-1-1/10
misconduct resulted in prejudice that 'had a substantial likelihood of affecting the
jury verdict.'"34
The court noted that "the prosecutor's remarks could potentially have
confused the jury about its role and the burden of proof."35 But the court explained that these "misstatements . .. could have been cured by a proper
instruction."36
If either [of the defendants] had objected at trial, the court could have properly explained the jury's role and reiterated that the State bears the burden of proof and the defendant bears no burden. Such an instruction would have eliminated any possible confusion and cured any potential prejudice stemming from the prosecutor's improper remarks. [The defendants'] claim necessarily fails and ouranalysis need go no further.'37' Because they failed to establish prejudice, their prosecutorial misconduct claim
failed.38
Here, Emery is instructive. During closing argument, the State, without
objection by Mack, gave the following description of reasonable doubt:
A reasonable doubt is a doubt for which a reason can be given. If in your deliberations you have doubts, but you can't put them into words, you can't articulate them, you can't talk with your fellow jurors about them, other than just maybe I have some kind of doubt
34 id, at 761-62 (quoting State v. Thoraerson, 172 Wn.2d 438, 455, 258 P.3d43(2011)).
35 id, at 763.
36 id, at 764.
37 id,
38 Id. at 765.
10 No. 70347-1-1/11
but I can't really express it, that's not a reasonable doubt. That's not a doubt that the law requires you be convinced beyond.'391 Like Emery, these statements imply that the jury must be able to put its doubts
"into words" or otherwise "articulate" them. Doing so subtly shifts the burden of
proof of guilt to the defendant. This is improper.
The question is whether Mack, who did not object to the argument, has
failed to show that the "prosecutor's comment[s] engendered an incurable feeling
of prejudice in the mind of the jury."40 Here, as in Emery, had Mack objected, the trial court could have explained that only the State bears the burden of proof.
Thus, Mack cannot show prejudice. Because he fails to establish prejudice, this
prosecutorial misconduct claim fails.
Mack argues that the improper statement was "flagrant and ill-intentioned,
and that violated Mr. Mack's constitutional right to due process."41 We disagree for the reasons we already explained. His conclusory argument to the contrary is
not persuasive.
Disparaging the Role of Defense Counsel
Mack next argues that the State disparaged the role of defense counsel and impugned counsel's integrity during rebuttal, and these statements
prejudiced him. We assume without deciding that some ofthe statements were
improper, but we disagree that Mack was prejudiced.
39 Report of Proceedings (Nov. 2, 2011) at 1053.
40 Emery, 174 Wn.2d at 762.
41 Appellant's Reply Brief at 14.
11 No. 70347-1-1/12
"It is improper for the prosecutor to disparagingly comment on defense
counsel's role or impugn the defense lawyer's integrity."42 But, in general, prosecutors are afforded wide latitude in making arguments to the jury and are
allowed to draw reasonable inferences from the evidence.43 Further, they are
entitled to make a fair response to the arguments ofdefense counsel.44 Here, Mack points to multiple places in the prosecutor's rebuttal to support
this claim. At the beginning of the prosecutor's rebuttal, he stated that he is
happy to have the last word with the jury after defense counsel speaks: "That's
what I think is always kind of the entertaining part about this job is you get to see
what the defense is, what the stories are, what's thrown out there, and it never
fails to entertain, Iassure you. I've tried a lot of cases."45 Defense counsel objected to the prosecutor's reference to "past cases." The court sustained the
objection.
The prosecutor continued without objection, "[Defense counsel's] got a job to do. His job, his duty, is to defend Mr. Mack. We will never see them get up
and say, 'Oh, boy, they got us.' It doesn't matter what the evidence is. Instead we get a story. And it was a humdinger. It was quite a tale."46
42 Thorqerson, 172 Wn.2d at 451.
43 id, at 448. 44 State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994).
45 Report of Proceedings (Nov. 2, 2011) at 1086.
46 Id. at 1087.
12 No. 70347-1-1/13
Later in rebuttal, the prosecutor said that defense counsel has "come up
with a story."47 "And it was a good one. It could have been a John Grisham novel, it could have been a Lifetime movie, but it's not the evidence."48 49 We assume, without deciding, that these statements were improper.
Thus, the question is whether Mack has established prejudice.
Mack only objected twice to the multiple comments he now claims were
improper. Moreover, Mack did not request either a curative instruction or mistrial based on these statements. Accordingly, we conclude there is no showing of
Mack first argues in his reply brief that the improper statements were not
harmless beyond a reasonable doubt. Generally, arguments first raised in a reply are not addressed.50 For this reason, we do not address this argument.
47 jd, at 1088.
48 id, at 1088-89. 49 See, e.g., Thorqerson, 172 Wn.2d at 450 (explaining that a prosecutor impugned defense counsel's integrity when the prosecutor "accused the defense of engaging in 'sl[e]ight of hand' tactics and used disparaging terms like 'bogus' and 'desperation' to describe the defense") (alteration in original); State v. Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008) (explaining that a prosecutor disparaged the role of defense counsel when the prosecutor said the defense counsel's argument was a "classic example of taking these facts and completely twisting them to their own benefit, and hoping that you are not smart enough to figure out what in fact they are doing."). 50 Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); see RAP 10.3(c).
13 No. 70347-1-1/14
For the same reason, we do not address Mack's argument that the alleged
misconduct involved "emotionally-laden phrases," which are "per se flagrant and
ill intentioned, and cannot be cured by instruction."51 RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES
Mack argues that the trial court violated his rights under the Confrontation
Clause by limiting the scope of his cross-examination of an adverse witness.
Specifically, he contends that the court erred when it excluded any reference to
Larry Lamson's plea agreement for a felony charge with one of the assistant
prosecutors in this trial. We disagree.
A person accused of a crime has a constitutional right to confront his or
her accuser.52 The primary and most important component is the right to conduct a meaningful cross-examination of adverse witnesses.53 Adefendant's right to confrontation includes the right to engage in otherwise appropriate cross-
examination to show that witness is biased.54 But the right to cross-examine is
not absolute.55
"A trial court may, in its discretion, reject cross-examination where the
circumstances only remotely tend to show bias or prejudice of the witness, where
51 Appellant's Reply Brief at 16.
52 U.S. Const, amend. VI; Wash. Const, art. 1, § 22; State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).
53 State v. Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998).
54 Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 89 L Ed. 2d 674 (1986).
55 Darden, 145 Wn.2d at 620.
14 No. 70347-1-1/15
the evidence is vague, or where the evidence is merely argumentative and
speculative."56 We review a trial court's ruling on the admissibility of evidence for abuse of discretion.57
Here, the trial court determined that there was not a sufficient link between
Lamson's plea agreement for another case and his testimony in this case. The
court acknowledged that the plea agreement reduced Lamson's potential
sentence quite a bit from the standard range. But the court explained that there
are "a lot of reasons why somebody could get an exceptional sentence down."
The court granted the State's motion in limine because there was not a "clear tie"
between the plea agreement and this case.
There was no abuse of discretion by the trial court. On this record, it was
entirely proper for the court to decide that there was an insufficient showing of
bias to allow cross-examination on this point in this trial.
Mack argues that a sufficient link was established between Lamson's plea
agreement and this case. He points out that the assistant prosecutor with whom
Lamson negotiated the plea agreement in the other matter was now serving as
one of the assistant prosecutors in Mack's trial. He contends that "[u]nder these
circumstances, Lamson may have believed that his low sentence would be
placed in jeopardy if he failed to testify in accordance with the government's
wishes."58 This is purely speculative.
56 State v. Roberts. 25 Wn. App. 830, 834, 611 P.2d 1297 (1980).
57 Darden, 145 Wn.2d at 619.
58 Appellant's Opening Brief at 22.
15 No. 70347-1-1/16
As Mack acknowledges, the assistant prosecutor who negotiated the plea
agreement with Lamson was not involved with Mack's case when Lamson
entered his plea. In fact, the assistant prosecutor represented to this trial court
that when he reached the plea agreement with Lamson he had "no notion or idea
that [Lamson] was a potential witness in" this case. He was not yet assigned to
Mack's case.
Because we conclude that the trial court did not abuse its discretion, we
need not consider the State's argument that any error was harmless beyond a
reasonable doubt.
We affirm the judgment and sentence.
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