Filed Washington State Court of Appeals Division Two
April 26, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54660-4-II
Respondent,
v.
KADRIAN MARQUEE DAVIS, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Kadrian M. Davis appeals his convictions and sentence for six counts of first
degree assault with firearm enhancements, first degree kidnapping with a firearm enhancement,
and first degree burglary. Davis argues that (1) there was insufficient evidence to support the
jury’s verdicts on first degree assault and first degree kidnapping, (2) the trial court erred by
denying his request to run the firearm enhancements concurrently, (3) he was deprived of his due
process right to a fair trial, (4) he received ineffective assistance of counsel, and (5) the trial court
violated the appearance of fairness doctrine. In a statement of additional grounds (SAG),1 Davis
claims that prosecutorial misconduct occurred when the prosecutor repeatedly asked leading
questions during testimony and made false representations during closing arguments and the
cumulative effect of the errors deprived him of a fair trial. 2
1 RAP 10.10. 2 Davis also claims in his SAG that there was insufficient evidence to support his convictions for first degree assault and that the trial court erred by running the firearm sentencing enhancements concurrently. These claims are addressed in Davis’ direct appeal, and, therefore, we do not address them separately in his SAG. No. 54660-4-II
We hold that (1) sufficient evidence supports the jury’s verdicts; (2) the trial court did not
err in imposing consecutive firearm sentencing enhancements; (3) Davis’ due process challenge is
not properly before us on appeal and, therefore, we do not address it; (4) Davis did not receive
ineffective assistance of counsel; and (5) Davis has waived his challenge to the appearance of
fairness. As to Davis’ SAG claims, we hold that there was no prosecutorial misconduct and the
cumulative error doctrine does not apply. Accordingly, we affirm.
FACTS
A. BACKGROUND
On July 4, 2018, Reid Pedder, Taylor Cavazos, Justin Tomlinson, and Dalton Rogers were
hanging out at Robert Frank’s apartment in Tillicum.3 Frank lived at the Tillicum apartment with
his girlfriend, Samantha Brown; Cristine Haugan, Brown’s mother; and Kris Cook, Brown’s step-
father. Frank’s friends, Zachary McBride and Tristen Norton, were also staying at the Tillicum
apartment. Several other people were at the Tillicum apartment, including Derrick White, Jake
Johnson, Dominick Yerly, Trevor Tague, and Justice Waite-Uren.
White, Waite-Uren, and Johnson left the Tillicum apartment and went to Davis’ house.
Meanwhile, Pedder, Cavazos, and Yerly left the Tillicum apartment and went to Pedder’s house.
While at Pedder’s house, Yerly began skateboarding in Pedder’s kitchen, and Pedder told
him to stop. Yerly began pushing Pedder around, and Cavazos tried getting them to stop. During
the altercation, Yerly hit Cavazos. The altercation broke up, and Yerly left.
3 Throughout trial there are many different references to this apartment. For consistency, we will refer to this place as the Tillicum apartment.
2 No. 54660-4-II
When Pedder learned that Yerly had hit Cavazos, he was angry and called Yerly. Yerly
said he would return to Pedder’s house. Meanwhile, Cavazos called Rogers, who was with
Tomlinson, and asked them to come to the house because she did not want Pedder to be alone
when Yerly got back to the house. Several people arrived at Pedder’s house with Yerly, including
Tague. When Yerly arrived, Yerly knocked Pedder out and continued hitting him. Rogers tried
to prevent Yerly from continuing to hit Pedder while Pedder was unconscious. Cavazos then called
Johnson to come over with Waite-Uren and White because Yerly was refusing to leave the house.
Johnson got the call from Cavazos while he was at Davis’ house with Waite-Uren and
White. White, Waite-Uren, and Johnson left Davis’ house to go to Pedder’s house. When they
arrived, a commotion was occurring in the front yard of Pedder’s house.
White and Waite-Uren had guns when they arrived at Pedder’s house, but they gave their
guns to Johnson before confronting Yerly. While White and Waite-Uren were confronting Yerly,
Tague tried to grab the guns away from Johnson. Tague got a gun away from Johnson and fired a
shot towards Johnson’s head. Tague fired more shots. At some point, Tague shot White in the
shoulder. Waite-Uren got the guns back from Tague and forced Yerly, Tague, and their group to
leave. After the group left, White made a phone call.
A short time later, Davis pulled up outside Pedder’s house in his truck with his friend,
Trey.4 Pedder and Rogers went to talk to them. Davis and Trey asked where they could find Yerly
and Tague. Pedder told them he did not know where Tague was. Cavazos told them that Yerly
4 The majority of witnesses identified two people in the truck as Davis and a man they did not know with dreadlocks. Davis’ ex-girlfriend identified this man as Trey.
3 No. 54660-4-II
and Tague were not at the Tillicum apartment. Rogers also tried telling them that Yerly and Tague
were not at the Tillicum apartment. Davis then pulled out a gun and demanded that Rogers get in
the truck. Davis, Trey, White, and Rogers left in the truck. Cavazos called Brown and told her
that a fight had broken out at her house and that White had been shot. She also told Brown that
some people were going to Brown’s Tillicum apartment looking for Yerly and Tague.
Brown was at a store with Haugen when she received Cavazos’ phone call. When Brown
and Haugen returned to the Tillicum apartment, Cook was there with his friend D’Shawn Ruch.
McBride and Norton also returned to the Tillicum apartment. Brown, Haugen, Ruch, and Cook
were in Haugen’s room, but Cook repeatedly went outside to see if anyone came.
Meanwhile, Rogers provided Davis directions to the Tillicum apartment. When they
arrived, Rogers pointed out the Tillicum apartment and the other men demanded that Rogers get
out of the car with them. Davis threatened to shoot Rogers if he ran.
Davis and Trey loaded their guns. The group walked towards the Tillicum apartment with
Rogers in the front. As they were approaching the building, Cook was outside of the Tillicum
apartment by his car. Cook told them Yerly and Tague were not there, then backed away. Davis
responded by punching Cook several times. Cook ran back into the apartment. Davis and Trey
followed Cook and began kicking the door. When Davis and Trey could not get into the apartment,
they walked back down the driveway to White and Rogers. Davis and Trey fired numerous shots
towards the apartment. When they stopped shooting, Davis told Rogers to get back into the truck.
4 No. 54660-4-II
Davis, White, Rogers, and Trey returned to Pedder’s house. Davis, White, and Trey began
arguing with Johnson and Waite-Uren about the earlier fight at Pedder’s house when White was
shot. Davis and Trey then punched Rogers, Johnson, Tomlinson, and Pedder.
The State charged Davis with six counts of first degree assault for the shooting at the
Tillicum apartment—one count for each person present at the apartment at the time of the shooting.
The State also charged Davis with one count of first degree kidnapping involving Rogers, and one
count of first degree burglary—based on entering Pedder’s house after the shooting where White
was shot.5 All of the charges, except the first degree burglary charge, charged Davis as a principle
or accomplice and alleged Davis was armed with a firearm.
B. JURY TRIAL
1. Testimony
Pedder, Cavazos, Rogers, Waite-Uren, Johnson, Tomlinson, and Brown testified to the
facts above. Several other witnesses including Frank, Norton, McBride, Cook, Haugan, and Ruch
also testified at trial.
During his testimony, Pedder specifically identified Davis as one of the people who showed
up in the truck after White was shot. Rogers testified that there were two people in the truck that
arrived after White was shot. Rogers also testified that the person in the passenger seat of truck
had long dreadlocks. Rogers was not able to describe or identify the driver of the truck. Cavazos
testified that two people arrived in the truck, one of whom had dreadlocks. Cavazos also identified
5 The State also charged Davis with one count of drive-by shooting and one count of attempted first degree burglary—based on attempting to enter the Tillicum apartment. However, neither of these charges were submitted to the jury. The trial court later dismissed those charges.
5 No. 54660-4-II
Davis as the other person who was in the truck. Davis’ ex-girlfriend, Alejandra Moran, testified
that Davis has a friend with dreadlocks named Trey.
After Pedder finished testifying, while the jury was out of the courtroom, the trial court
told the prosecutor:
This anticipated testimony with several young witnesses, I think it’s probably cultural, and it’s youth. But this slouching down and mumbling and interrupting— I don’t like to be the one to correct a witness, but I have to protect the record. Will you please speak to these young witnesses before they come in?
8 Verbatim Report of Proceeding (VRP) at 410.
Detective Jeff Martin of the Lakewood Police Department was assigned to investigate the
shooting at the Tillicum apartment. During Detective Martin’s investigation, Pedder identified
Davis as the person who showed up at his house in the truck. Martin also analyzed data from
Davis’ cell phone records. The cell phone data showed that Davis’ phone moved towards Pedder’s
house, then towards the Tillicum apartment, then back towards Pedder’s house.
2. Dismissal Of Juror 7
On the morning of closing arguments, the trial court alerted the parties that they had “lost
Juror No. 7.” 15 VRP at 1512. Juror 7 had contacted the judicial assistant and said that she could
not be at court. Defense counsel spoke with Davis and informed the trial court that Davis had no
issue with releasing Juror 7.
In dismissing Juror 7, the trial court stated:
I certainly noticed that Juror 7 was nodding off. I noticed it at least three times. She nodded off to the point, I believe, on Tuesday that she dropped her pad and her pen from her lap and it fell to the floor, and then she was startled awake.
15 VRP at 1524. The trial court then stated:
6 No. 54660-4-II
She is the only African American juror that was on this panel, and I’m disappointed to lose her, but there’s nothing I can do when I’ve got a juror that will not cooperate or participate.
15 VRP at 1524.
3. Closing Arguments
In its closing argument, the State discussed the events surrounding the shooting that
occurred at the Tillicum apartment. The prosecutor argued that before going to back to the
Tillicum apartment, Davis first went to Pedder’s house to find Yerly and Tague, stating, “Trey
came with Kadrian Davis over to the house in the blue pickup truck.” 15 VRP at 1570. The
prosecutor then argued, “[T]he defendant and—we’ll call him ‘Trey’ for lack of anything else were
demanding to know where Dominik Yerly and Trevor Tague were.” 15 VRP at 1570. The
prosecutor further argued, “[T]he defendant and this—and Trey apparently believed that they were
at [the Tillicum apartment].” 15 VRP at 1570.
The prosecutor then discussed what happened when Davis arrived at the Tillicum
apartment. The prosecutor stated that Davis got out of the truck and walked towards the Tillicum
apartment. 15 VRP 1572. The prosecutor then stated, “And at that point the defendant struck Kris
Cook in the face, punched him.” 15 VRP at 1572. The prosecutor argued that when Cook went
back into the apartment, the shooting began. 15 VRP 1572-73. After the shooting, the prosecutor
argued, “The defendant and the others then went back to the truck.” 15 VRP at1573.
During the rebuttal closing argument, the prosecutor admitted “that no one was able to say
‘That guy that fired the gun was the defendant.’” 15 VRP at 1624. However, the prosecutor later
argued that “[w]e may not have direct evidence that it was . . . Davis that fired these shots. We
7 No. 54660-4-II
have ample circumstantial evidence.” 15 VRP at 1624. The prosecutor then provided the
circumstantial evidence they believed pointed to Davis. For example, the State pointed out that
Rogers identified the driver of the truck as the person who threatened him and fired shots at the
Tillicum apartment. And the State argued that because Pedder and Cavazos identified Davis as
arriving in the truck and there was evidence that Davis owned the truck, there was circumstantial
evidence allowing the jury to infer Davis was the driver of the truck. Defense counsel did not
object to these arguments.
C. VERDICTS AND SENTENCING
The jury found Davis guilty of all six counts of first degree assault. The jury also found
Davis guilty of first degree kidnapping and first degree burglary. The jury further found that Davis
was armed with a firearm at the time of the commission of the assaults and kidnapping.
At sentencing, the trial court found the presumptive standard sentencing range, 627-830
months, plus 420 months of sentencing enhancements was clearly excessive. Therefore, the trial
court imposed an exceptional sentence below the standard range by ordering the sentences for five
of the six assault charges and the sentence for the first degree burglary to run concurrently with
the sentences for one count of first degree assault and the sentence for kidnapping. The trial court
also ordered that the seven firearm sentencing enhancements run consecutively because it did “not
believe it [had] any discretion to deviate from the mandatory firearm enhancement.” Clerk’s
Papers (CP) at 511. The trial court imposed a total of 582 months confinement.
Davis appeals his convictions and sentence.
8 No. 54660-4-II
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Davis argues that there was insufficient evidence to support the jury’s verdicts finding him
guilty of six counts of first degree assault and first degree kidnapping. We disagree.
Evidence is sufficient to support a conviction if any rational trier of fact can find the
essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992). The evidence must be viewed in the light most favorable to the State and
interpreted most strongly against the defendant. Id. Circumstantial and direct evidence are equally
reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A claim of insufficiency of
evidence admits the truth of the State’s evidence and all inferences that reasonably can be drawn
from the evidence. Salinas, 119 Wn.2d at 201.
1. First Degree Assault
Davis argues that there is insufficient evidence to convict him on all counts of first degree
assault because Cook and Rogers, the only eyewitnesses to the shooting, did not identify him as a
shooter. Davis also argues that the State failed to prove that the shooters intended to inflict harm
on the specifically named occupants in the Tillicum apartment.
“A person is guilty of assault in the first degree if he or she, with intent to inflict great
bodily harm . . . assaults another with a firearm or any deadly weapon or by any force or means
likely to produce great bodily harm or death.” RCW 9A.36.011(1)(a). Assault is defined as
unlawful touching; an attempt with unlawful force to inflict bodily injury upon another, tending
9 No. 54660-4-II
but failing to accomplish it; and putting another in the apprehension of harm. State v. Elmi, 166
Wn.2d 209, 215, 207 P.3d 439 (2009).
“The mens rea for first degree assault is the specific intent to inflict great bodily harm.” Id.
Specific intent is the “intent to produce a specific result.” Id. “First degree assault does not, under
all circumstances, require that the specific intent match a specific victim. Id. “[O]nce the specific
intent to inflict great bodily harm is established, this intent may transfer to any unintended victim.”
Id. at 217. The unintended victim does not need to physically be harmed. Id. at 218. The defendant
“bears the risk of multiple convictions when several victims are present, regardless of whether the
defendant knows of their presence.” Id.
First, although neither Cook nor Rogers specifically identified Davis as a shooter, there
was sufficient circumstantial evidence to support the jury’s verdict. Pedder testified that Davis
and a person with dreadlocks pulled up to his house in a truck after White was shot. Pedder
testified that, although he did not see Rogers get in the truck, Rogers was gone after the truck left.
Moran testified that Davis had a friend with dreadlocks named Trey.
Rogers testified that the driver of the truck participated in the shooting at the Tillicum
apartment. The jury could infer that Davis was the driver of the truck that Rogers testified
participated in the shooting at the Tillicum apartment because there were only two men who
arrived in the truck at Pedder’s house and those two men then went from Pedder’s house to the
Tillicum apartment—one person was identified by others as Davis and the other person had
dreadlocks, identified as Trey. Because there was sufficient evidence for the jury to infer that
Davis was the man without dreadlocks referred to in Rogers’ testimony, there was sufficient
10 No. 54660-4-II
evidence for the jury to infer that Davis drove Rogers, White, and Trey to the Tillicum apartment
in his truck, loaded a gun, and participated in firing multiple shot at the Tillicum apartment.
Second, first degree assault does not require specific intent to match a specific victim. Id.
at 215. Here, the jury could reasonably infer that Davis and Trey intended to cause serious bodily
harm to Yerly and Tague because they were angry at them for fighting with Pedder and Cavazos
and shooting White. Davis and Trey believed that Yerly and Tague were at the Tillicum apartment
because they went there despite multiple people telling them that Yerly and Tague were not at the
Tillicum apartment. Furthermore, there was sufficient evidence for the jury to find that Davis and
Trey intended to cause serious bodily harm to Cook by shooting at him because Davis punched
Cook when he said Yerly and Tague were not there and then chased him to the apartment and tried
to kick in the door. Because there was sufficient evidence that Davis and Trey intended to cause
serious bodily harm to Yerly, Tague, or Cook by shooting into the Tillicum apartment, that intent
transferred to all the people who were in the apartment at the time, whether Davis specifically
intended to harm those people or not. See id. at 217.
There was sufficient circumstantial evidence for the jury to find that Davis was a
participant in the shooting at the Tillicum apartment. There was also sufficient evidence for the
jury to find that Davis shot at the Tillicum apartment with the specific intent to cause serious bodily
harm. Accordingly, there was sufficient evidence to support the jury’s verdicts finding Davis
guilty of six counts of first degree assault.
11 No. 54660-4-II
2. First Degree Kidnapping
Davis further argues that there was insufficient evidence to support the jury’s verdict
finding him guilty of first degree kidnapping because the State failed to prove that he was present
during the kidnapping or that the kidnapping even occurred.
A person commits first degree kidnapping when they “intentionally abduct another person
with intent . . . [t]o facilitate [the] commission of any felony or flight thereafter.” RCW
9A.40.020(1)(b). “‘Abduct’ means to restrain a person by . . . using or threatening to use deadly
force.” RCW 9A.40.010(1).
Here, there was sufficient evidence to support the jury’s verdict finding Davis guilty of
first degree kidnapping because the jury could infer that the person who ordered Rogers into the
truck at gunpoint was Davis. As explained above, although Rogers did not identify Davis, other
people identified Davis as the person who did not have dreadlocks. Because Davis threatened
Rogers with a firearm, he used the threat of deadly force to get Rogers into the truck. And the jury
could find that Davis intentionally abducted Rogers with the intent to commit a felony because
Davis made Rogers go with them to provide directions to the Tillicum apartment to find Yerly and
Tague. There was sufficient evidence for the jury to find that Davis committed first degree
kidnapping.
B. CONSECUTIVE FIREARM ENHANCEMENTS
Davis argues that the trial court abused its discretion by ordering that the firearm
enhancements run consecutively because it inaccurately believed it did not have the authority to
12 No. 54660-4-II
consider running the firearm enhancements concurrently under State v. McFarland, 189 Wn.2d
47, 399 P.3d 1106 (2017). We disagree.
Under RCW 9.94A.533 sentences for firearm enhancements “are mandatory, shall be
served in total confinement, and shall run consecutively to all other sentencing provisions.” RCW
9.94A.533(3)(e). Based on the plain language of RCW 9.94A.533(3)(e) the trial court does not
have discretion to run firearm sentencing enhancements concurrently. See State v. Brown, 139
Wn.2d 20, 29, 983 P.2d 608 (1999), overruled in part on other grounds by State v. Houston-
Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017).
Despite the plain language of RCW 9.94A.533, Davis argues State v. McFarland held that
trial courts have the discretion to order firearm enhancements to run concurrently. However,
McFarland addressed convictions for firearm related offenses not firearm sentencing
enhancements. McFarland, 189 Wn.2d at 51. McFarland is distinguishable because it does not
address firearm sentencing enhancements under RCW 9.94A.533, but rather addresses imposition
of consecutive sentence for firearm related convictions under RCW 9.94A.589(1)(c). Id. at 55.
The trial court correctly determined that it did not have the authority to order the firearm
sentencing enhancements to run concurrently. Therefore, the trial court did not abuse its discretion
by imposing consecutive firearm sentencing enhancements.
C. DUE PROCESS RIGHT TO A FAIR TRIAL FREE FROM RACIAL BIAS
Davis argues that his due process right to a fair trial was violated when the trial court
removed the only black juror from the jury. Because Davis affirmatively agreed to dismissal of
Juror 7, we decline to address his due process argument.
13 No. 54660-4-II
“The doctrine of invited error prohibits a party from setting up an error at trial and then
complaining of it on appeal.” State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014).
“To be invited, the error must be the result of an affirmative, knowing, and voluntary act.” Id. An
appellant “must materially contribute to the error challenged on appeal by engaging in some type
of affirmative action through which he knowingly and voluntarily sets up the error.” Id. The
invited error doctrine applies even to criminal defendants raising constitutional issues. Id. at 629-
30.
Here, Davis, through his counsel, affirmatively told the trial court that he had no issues
with releasing Juror 7. At the time, Davis was aware that the only black juror was being released
from the jury and did not only fail to object, but actively informed the trial court that there was no
issue with releasing Juror 7. By affirmatively stating that there were no issues with Juror 7 being
released, Davis set up the error he now complains of on appeal, dismissal of the only black juror.
Therefore, we decline to address Davis’ due process argument.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Davis argues that he received ineffective assistance of counsel because defense counsel
acquiesced to the trial court’s removal of the only black juror and failed to “research relevant
statutes.” Br. of Appellant at 36. We disagree.
We review claims of ineffective assistance of counsel de novo. State v. Vazquez, 198
Wn.2d 239, 249, 494 P.3d 424 (2021). To establish ineffective assistance of counsel, a defendant
must show that their attorney’s performance was deficient and, if it was deficient, that it was
prejudicial. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert. denied, 574 U.S.
14 No. 54660-4-II
860 (2014). An ineffective assistance of counsel claim fails if the defendant fails to establish either
deficient performance or prejudice. Id. at 33.
Performance is deficient if counsel’s representation falls below an objective standard of
reasonableness based on consideration of all the circumstances. Id. There is a strong presumption
that counsel’s representation was effective. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177
(2009). If the defendant bases their ineffective assistance of counsel claim on the defense counsel’s
failure to object, “the defendant must show that the objection would likely have succeeded.” State
v. Crow, 8 Wn. App 2d 480, 508, 438 P.3d 541, review denied, 193 Wn.2d 1038 (2019).
Any objection from defense counsel would not have succeeded because the trial court
properly dismissed Juror 7. Discharge and excusal of an impaneled juror is governed by RCW
2.36.110 and CrR 6.5. Under RCW 2.36.110, the trial court has the duty to excuse “any juror, who
in the opinion of the judge, has manifested unfitness as a juror by reason of . . . indifference,
inattention . . . or by reason of conduct or practices incompatible with proper and efficient jury
service.” Further, under CrR 6.5, the trial court has a duty to discharge a juror who “is found
unable to perform the duties.” “RCW 2.36.110 and CrR 6.5 place a continuous obligation on the
trial court to excuse any juror who is unfit and unable to perform the duties of a juror.” State v.
Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000), review denied, 143 Wn.2d 1015 (2001).
Although Davis emphasizes the trial court’s observation that Juror 7 fell asleep, the trial
court did not show any indication that it intended to dismiss Juror 7 until Juror 7 informed the
court that she would not be able to attend trial because of childcare issues. If a juror is unwilling
or unable to attend the trial, the juror is necessarily unable to perform the duties of a juror. Because
15 No. 54660-4-II
Juror 7 inability to attend trial rendered her unfit for service as a juror, Davis cannot show that an
objection to the trial court’s decision to dismiss Juror 7 would have been granted, therefore, Davis
cannot show that his counsel’s performance was deficient.
Davis also argues that defense counsel provided ineffective assistance because counsel
“failed to research and recognize the law,” specifically GR 37. Br. of Appellant at 37. However,
defense counsel did not fail to recognize the law because GR 37 only applies to jury selection and
peremptory challenges, not to impaneled jury members. GR 37(a) (the purpose of GR 37 “is to
eliminate the unfair exclusion of potential jurors based on race or ethnicity.”). Because GR 37
does not apply to dismissal of impaneled jurors, any failure on defense counsel’s part to research
GR 37 does not fall below an objective standard of reasonableness.
Davis cannot show that defense counsel’s performance was deficient, and his ineffective
assistance of counsel claim fails.
E. APPEARANCE OF FAIRNESS DOCTRINE
Davis argues that the trial court violated the appearance of fairness doctrine. Because
Davis raises this argument for the first time on appeal, we decline to consider it.
We “may refuse to review any claim of error which was not raised in the trial court.” RAP
2.5(a). “‘The appellate courts will not sanction a party’s failure to point out at trial an error which
the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a
consequent new trial.’” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009) (quoting State
v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)). A party may raise a claim for the first time
on appeal when it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). However, we
16 No. 54660-4-II
do not address the exceptions to RAP 2.5(a) when a party fails to raise and argue them. See State
v. Cox, 109 Wn. App. 937, 943, 38 P.3d 371 (2002) (when an appellant fails to provide argument
or authority, we are not “required to construct an argument on behalf of appellants”).
Davis asserts that the trial court violated the appearance of fairness by dismissing the only
black juror, and further demonstrated its bias by commenting on the cultural tendency of black
youth to mumble:
This anticipated testimony with several young witnesses, I think it’s probably cultural, and it’s youth. But this slouching down and mumbling and interrupting— I don’t like to be the one to correct a witness, but I have to protect the record. Will you please speak to these young witnesses before they come in?
8 VRP at 410.
But Davis affirmatively agreed to the dismissal of Juror 7. And Davis did not object to the
trial court’s comments regarding Pedder’s testimony. Therefore, Davis is raising the claim of a
violation of the appearance of fairness for the first time on appeal. And Davis has not made any
argument asserting that his appearance of fairness challenge meets an exception to RAP 2.5(a).
Therefore, we decline to address Davis’ argument that the trial court violated the appearance of
fairness.
SAG
A. PROSECUTORIAL MISCONDUCT
Davis claims that the prosecutor committed misconduct by asking leading questions and
expressing personal beliefs and making arguments unsupported by the evidence in closing
arguments. We disagree.
17 No. 54660-4-II
To prevail on a claim of prosecutorial misconduct, Davis must show that the prosecutor’s
conduct was improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012).
First, we determine whether the prosecutor’s conduct is improper. Id. at 759. If the prosecutor’s
conduct was improper, we must then determine whether the conduct was prejudicial. Id. at 760.
1. Leading The Witness
Davis claims that the prosecutor’s committed misconduct by “intentionally eliciting
inadmissible testimony and intentionally solicited and anticipated that in response to his leading
questions [they] would get his specific answers.” SAG at 2. A thorough review of the record
shows that the prosecutor’s questions were not improper.
“Leading questions should not be used on the direct examination of a witness except as
may be necessary to develop the witness’ testimony.” ER 611(c). “A leading question is one that
suggests the desired answer.” Stevens v. Gordon, 118 Wn. App. 43, 55, 74 P.3d 653 (2003). The
trial court has broad discretion to allow leading questions. Id. at 55. Further, the asking of leading
questions is not usually a reversible error. Id. at 56.
Although the prosecutor asked many questions that required yes or no answers, the
prosecutor was developing testimony and did not necessarily suggest answers to the question.
Even if we considered the prosecutor’s questions leading questions, the trial court has broad
discretion to allow leading questions. A thorough review of the record shows that the prosecutor
did not improperly lead any witnesses. Because the prosecutor’s questions were not improper,
Davis cannot show that there was any prosecutorial misconduct resulting from improperly leading
witnesses.
18 No. 54660-4-II
Davis also claims that the prosecutor objected to Cook’s testimony to “attempt[] to make
[Cook] now look hostile.” SAG at 6. However, the State can object to a nonresponsive answer to
its question. State v. Vassar, 188 Wn. App. 251, 258, 352 P.3d 856 (2015). Here, the prosecutor
asked, “You are telling us what you know happened; correct?” 11 VRP at 1007. While Cook’s
initial response was responsive, Cook’s continued response was nonresponsive, at which point the
prosecutor objected on the basis that the response was nonresponsive, which the trial court
sustained. The prosecutor’s conduct was not improper.
2. Closing Arguments
Davis also claims that the prosecutor made statements during closing arguments that were
not supported by any evidence presented at trial and that the prosecutor made statements that
“expressed his personal belief as to the veracity of the witnesses.” SAG at 10. Because the
prosecutor’s arguments were based on reasonable inferences from the evidence, the prosecutor’s
arguments were not improper.
A prosecutor enjoys wide latitude when making a closing argument. State v. Fisher, 165
Wn.2d 727, 747, 202 P.3d 937 (2009). A prosecutor is permitted to draw reasonable inferences
from the evidence. State v. Dhaliwal, 150 Wn.2d 559, 577, 79 P.3d 432 (2003). However, it is
improper for a prosecutor “to express a personal opinion as to the credibility of a witness or the
guilt of a defendant.” State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014).
Here, Davis claims that the prosecutor committed misconduct by “bringing in [a]
statement” that the suspect Trey stated that he was looking for Yerly and Tague. SAG at 10.
During closing arguments, the prosecutor argued, “[T]he defendant and—we’ll call him ‘Trey’ for
19 No. 54660-4-II
lack of anything else were demanding to know where Dominik Yerly and Trevor Tague were.” 15
VRP at 1570. The prosecutor further argued that, “[T]he defendant and this—and Trey apparently
believed that they were at the [Tillicum apartment].” 15 VRP at 1570. Because multiple witnesses
testified that Davis and Trey were asking where to find Yerly and Tague and wanted the address
to the Tillicum apartment, the prosecutor’s arguments were reasonable inferences from the
evidence and were not improper.
Davis next claims that the prosecutor made false statements during closing arguments by
arguing that Davis and Trey pulled up in a truck to the Tillicum apartment when “Cook ‘never’
identified the defendant ‘or’ his truck at the scene.” SAG at 11. In discussing what happened at
the Tillicum apartment, the prosecutor stated, “[W]hen the defendant got to the [Tillicum
apartment], when the truck did . . . .” 15 VRP at 1572. The prosecutor then argued, “And at that
point the defendant struck Kris Cook in the face, punched him.” 15 VRP at 1572. The prosecutor
also argued, “The defendant and the others then went back to the truck.” 15 VRP at 1573.
Although Cook’s testimony does not support these arguments, the prosecutor’s arguments are
reasonable inferences from Roger’s testimony. The prosecutor did not make false statements and
their arguments were not improper.
Finally, Davis argues that the prosecutor admitted “that there was no evidence to prove that
the defendant/Appellant had anything to do with the shooting,” admitted “Rogers ‘never’ saw the
defendant/Appellant during the altercation,” and stated “there is no evidence to the kidnapping
against the defendant.” SAG at 11. In doing so, Davis argues, the prosecutor’s conduct was
20 No. 54660-4-II
improper because “[i]t was the prosecutor’s duty not to use statements that are not supported by
the record.” SAG at 11.
The record shows that the prosecutor did admit “that no one was able to say ‘That guy that
fired the gun was the defendant.’” 15 VRP at 1624. The prosecutor continued, “We may not have
direct evidence that it was . . . Davis that fired these shots. We have ample circumstantial
evidence.” 15 VRP at 1624. Based on Pedder’s identification of Davis as the driver of the truck
and Roger’s testimony regarding the events that occurred at the Tillicum apartment, it was
reasonable for the prosecutor to infer that Davis was at the shooting at the Tillicum apartment.
And again, the prosecutor did not express any personal opinions and made no comments regarding
the credibility of the witnesses. Because the prosecutor was arguing reasonable inferences from
the evidence, the prosecutor’s arguments were not improper.
Davis has not identified any improper arguments made by the prosecutor, therefore, his
prosecutorial misconduct claim fails.
B. CUMULATIVE ERROR DOCTRINE
Davis argues that the cumulative error doctrine applies. Cumulative error applies when
numerous errors deny the defendant their right to a fair trial, “even if each error standing alone
would be harmless.” State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813, review denied, 170
Wn.2d 1003 (2010). When no error occurs, the cumulative error doctrine does not apply. State v.
Clark, 187 Wn.2d 641, 655, 389 P.3d 462 (2017). Here, because there was no error, the cumulative
error doctrine does not apply.
We affirm.
21 No. 54660-4-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Maxa, J.
Cruser, A.C.J.