THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 82588-7-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
SIMEONE THOMAS BERKLEY,
Appellant.
ANDRUS, C.J. — Simeone Thomas Berkley appeals his conviction for
second degree murder, arguing that he shot Steven Whitemarsh in self-defense
during a road rage incident provoked by Whitemarsh. Berkley contends the trial
court erred in excluding evidence that Whitemarsh had previously engaged in
aggressive and alcohol-impaired driving, impairing his right to present a defense.
He also argues the prosecutor committed misconduct by characterizing his crime
as an “execution” and the trial court imposed mandatory legal financial obligations
(LFOs) that were unconstitutionally excessive. We reject these arguments and
affirm the judgment and sentence.
FACTS
On the evening of July 6, 2019, as Yuriy Gogun and his daughters drove
down Glenwood Avenue in Everett, they saw a car, driven by Simeone Berkley,
coming toward them. Gogun saw Berkley turn on his left turn signal and abruptly
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82588-7-I/2
slow down. Gogun then saw the vehicle following Berkley, driven by Stephen
Whitemarsh, collide with the rear end of Berkley’s car.
Gogun pulled over and saw Berkley get out of his car and walk up to
Whitemarsh’s driver’s side window. Both Gogun and his daughter, Juliana,
testified they then saw Berkley pull out a gun and shoot Whitemarsh twice through
the window, pausing three to five seconds between the shots.
Beau Reeder, sitting in his car on Glenwood Avenue, heard a loud crash
behind him. When Reeder turned to look, he saw the collision. Reeder grabbed
his video camera and, as he got out of his car, heard two gunshots with a short
pause in between. Reeder began recording when he saw Berkley walking towards
him. Reeder asked him what happened and Berkley responded that the driver of
the following vehicle had been chasing him. Reeder then heard the engine of
Whitemarsh’s car revving loudly. Reeder and Berkley walked together to
Whitemarsh’s car. Reeder turned off his video camera while he attempted,
unsuccessfully, to remove Whitemarsh’s leg from the car’s accelerator. Berkley
reached into the car and took the keys out of the ignition. Reeder turned his video
camera back on when Berkley told him, “don’t worry about him. I shot him twice in
the head.” Reeder saw that Whitemarsh was bleeding and heard him moaning.
When police arrived, they found Whitemarsh still seated in his vehicle with
his seat belt fastened and his doors locked, with gunshot wounds to his face and
head. Whitemarsh died at the scene. The autopsy revealed that Berkley’s first
shot entered Whitemarsh’s lower lip and shattered his jawbone. The second shot
entered his skull behind his left ear. The Snohomish County chief medical
examiner testified that the shots were fired from a distance of 6 to 24 inches away. -2- No. 82588-7-I/3
Whitemarsh had a blood alcohol level of .195 and a THC level of 4.7 nanograms
per milliliter of blood.
The State charged Berkley with second degree murder. Berkley’s theory at
trial was that he shot Whitemarsh in self-defense.
Berkley testified that on the evening of the shooting, he was driving on
Glenwood Avenue to pick up dinner for himself and his wife. On the way, he
noticed Whitemarsh’s SUV closely following him. Berkley grew concerned about
what he described as Whitemarsh’s aggressive driving when, at a stop light,
Whitemarsh repeatedly revved his engine directly behind Berkley’s vehicle.
Berkley claimed he drove at an excessive rate of speed to get away from
Whitemarsh, but Whitemarsh continued to tailgate him. At some point, Berkley
decided he was “tired of the chase,” and slammed on his brakes, causing
Whitemarsh’s SUV to collide with the back of Berkley’s vehicle.
Berkley admitted he then got out of his car, walked over to Whitemarsh’s
driver’s side window, pulled a pistol from his pocket, and shot Whitemarsh twice.
He admitted he never saw a weapon and did not exchange any words with
Whitemarsh.
To support his theory of self-defense, Berkley sought to introduce three
pieces of evidence to demonstrate that Whitemarsh had previously engaged in
alcohol-fueled road rage incidents. First, he asked to introduce evidence that the
victim’s mother, Patricia Whitemarsh, told police that Whitemarsh “is a road rage
driver, that he gets angry at drivers, [and] that he carries a weapon in his car.”
Second, Berkley offered testimony from Alan Cunningham, who had observed
Whitemarsh aggressively tailgate another driver in the same manner as described -3- No. 82588-7-I/4
by Berkley. Third, Berkley sought to introduce Whitemarsh’s six prior convictions
for driving under the influence (DUI). Berkley argued that this evidence supported
his argument that Whitemarsh was the primary aggressor and that Berkley had a
reasonable apprehension of harm.
The trial court excluded the evidence under ER 404. The court reasoned
that Patricia Whitemarsh’s testimony was not “general and neutralized” to
constitute admissible reputation evidence and was instead inadmissible opinion
evidence. Cunningham’s testimony, the court held, was not general reputation
evidence, but was information about a single past incident, making it inadmissible
propensity evidence under ER 404(a) and inadmissible to establish a common
scheme or plan under ER 404(b). With regard to Whitemarsh’s DUI convictions,
the court held that they were inadmissible evidence of prior bad acts under ER
404(a), inadmissible propensity evidence under ER 404(b), and not probative of
whether Whitemarsh was the aggressor.
The jury found Berkley guilty of second degree murder and the court
sentenced him to 264 months of confinement.
ANALYSIS
Berkley’s Right to Present a Defense
Berkley first argues the trial court’s exclusion of the evidence of
Whitemarsh’s history of impaired and aggressive driving violated his right to
present a defense. We disagree.
In analyzing whether a trial court’s evidentiary decision violated a
defendant’s right to present a defense under the Sixth Amendment to the United
States Constitution, we first review the court’s evidentiary ruling for abuse of -4- No. 82588-7-I/5
discretion. State v. Jennings, 199 Wn.2d 53, 58, 502 P.3d 1255 (2022) (citing
State v. Arndt, 194 Wn.2d 784, 813, 453 P.3d 696 (2019)). A trial court abuses its
discretion if no reasonable person would take the view adopted by the trial court.
Jennings, 199 Wn.2d at 59. We then consider de novo whether the exclusion of
evidence violated the defendant’s constitutional right to present a defense. Id. at
58.
Berkley argues that the excluded evidence was admissible under either ER
404(a) or (b). We reject these arguments. Under ER 404(a), “[e]vidence of a
person’s character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion.” ER 404(a)(2)
provides an exception to this rule for “[e]vidence of a pertinent trait of character of
the victim of the crime offered by an accused.” But even under this exception,
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith.” ER 404(b). “In all
cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation.” ER 405(a).
The victim’s character need not have been known to the defendant to be
admissible on the issue of who was the primary aggressor. State v. Adamo, 120
Wash. 268, 270, 207 P. 7 (1922). But evidence of a victim’s character “must be in
the form of reputation evidence, not evidence of specific acts.” State v.
Hutchinson, 135 Wn.2d 863, 886, 959 P.2d 1061 (1998) (abrogated on other
grounds by State v. Jackson, 195 Wn.2d 841, 467 P.3d 97 (2020)). “Specific acts
may be used to prove character only where the pertinent character trait is an
essential element of a claim or defense. Specific act character evidence relating -5- No. 82588-7-I/6
to the victim’s alleged propensity for violence is not an essential element of self-
defense.” Id. at 886-87. But a defendant may introduce reputation evidence to
establish the victim’s quarrelsome or violent disposition. Adamo, 120 Wash. at
270.
The evidence of Whitemarsh’s six DUI convictions and Cunningham’s
previous single encounter with Whitemarsh constitutes specific act evidence, as
opposed to reputation evidence, and is inadmissible under ER 404(a) to prove
Whitemarsh was violent when driving.
Whitemarsh’s mother’s statements to the police are also inadmissible
because they do not establish Whitemarsh’s reputation in the community as
required by ER 404(a). Berkley contends that Mrs. Whitemarsh would have
testified that the victim “had a bad temper, frequently got angry while on the road,
and kept a weapon in the car—a small baseball bat.” Under ER 608(a), to offer
reputation testimony under ER 404(a), a party must lay a foundation establishing
that the witness’s testimony about the victim’s reputation is based on perceptions
in the community. State v. Thach, 126 Wn. App. 297, 315, 106 P.3d 782 (2005);
State v. Callahan, 87 Wn. App. 925, 935, 943 P.2d 676 (1997) (applying ER 608
test to admissibility of reputation evidence under ER 404(a)). A witness’s personal
opinion is not sufficient to lay this foundation. State v. Land, 121 Wn.2d 494, 500,
851 P.2d 678 (1993). A valid community must be “neutral enough [and]
generalized enough to be classed as a community.” State v. Lord, 117 Wn.2d 829,
874, 822 P.2d 177 (1991) (quotations omitted).
The trial court here reasoned that Mrs. Whitemarsh’s testimony was not
general enough to constitute reputation testimony, but rather was “opinion -6- No. 82588-7-I/7
evidence” from “a community of one.” The court relied on Thach, in which this
court held that the testimony of a single family member regarding the defendant’s
peaceful character was inadmissible as reputation evidence under ER 608(a)
because a witness’s personal opinion is not sufficient to lay a foundation for an
individual’s reputation.
Thach correctly states the law that reputation testimony must be given by
members of a neutral and generalized community. See Land, 121 Wn.2d at 500
(factors to consider include the frequency of contact between members of the
community, the amount of time a person is known in the community, the role a
person plays in the community, and the number of people in the community). In
Thach, the court noted that “[n]o case law exists supporting the proposition that a
family constitutes a community for purposes of character evidence.” 126 Wn. App.
at 315. Even if Berkley could establish that Whitemarsh’s mother was a member
of a neutral and generalized community, Berkley presented no evidence as to how
Whitemarsh’s mother had knowledge of Whitemarsh’s reputation in that
community. The trial court did not abuse its discretion in excluding her opinion that
her son was a “road rage driver.”
Berkley also argues that the excluded evidence was admissible under ER
404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
To the extent that Berkley offered evidence that Whitemarsh drove
aggressively on prior occasions to prove that he was the primary aggressor in his -7- No. 82588-7-I/8
interaction with Berkley, it is propensity evidence prohibited by the plain text of the
rule. The trial court correctly ruled that this evidence was inadmissible on that
basis.
Berkley, however, also argues that the evidence was admissible to prove
that he had a reasonable apprehension of Whitemarsh. Berkley cites State v.
Young, 48 Wn. App. 406, 739 P.2d 1170 (1987), a vehicular homicide case in
which the defendant, who was driving the car, claimed that his passenger caused
the fatal accident by grabbing his steering wheel and causing him to lose control.
Id. at 408-09. The defendant sought to introduce testimony that the passenger
had repeatedly grabbed the steering wheels of other drivers in the past, evidence
the trial court excluded. Id. at 409.
This court held the evidence was admissible under ER 404(b) to prove the
identity of the person responsible for the accident and the person in control of the
vehicle when the accident occurred. Id. at 413. But Berkley fails to explain how
the reasoning in Young applies here, where he sought to introduce evidence of
prior acts, not to prove identity, but to prove his reasonable apprehension of
Whitemarsh. Young is inapplicable to the facts of this case.
Berkley also cites State v. Duarte Vela, 200 Wn. App. 306, 402 P.3d 281
(2017), in which the court held that testimony concerning a murder victim’s prior
violent and threatening behavior towards the defendant’s family was admissible to
support the defendant’s self-defense claim. The court reasoned: “Here, Duarte
Vela was not attempting to prove Menchaca’s character. Rather, Duarte Vela was
attempting to establish that he reasonably feared Menchaca because of what he
believed about Menchaca at the time he shot him.” Id. at 325-26. But, crucially, -8- No. 82588-7-I/9
the court continued: “It is well established that a victim’s specific acts of violence,
if known by the defendant, are admissible when the defendant asserts self-
defense.” Id. at 326 (citations omitted; emphasis in original).
Berkley testified he did not know Whitemarsh. And there is no evidence in
this record that he knew of Whitemarsh’s prior acts of aggressive and impaired
driving. It has long been settled law in Washington that evidence of a victim’s
specific acts is irrelevant to a defendant’s reasonable apprehension of that victim
unless the defendant knew of the acts. See Adamo, 120 Wash. at 271. The trial
court did not abuse its discretion by excluding this evidence under ER 404(b).
Berkley argues that even if the evidence was otherwise inadmissible, he
should have been permitted to offer it because it was crucial to his claim of self-
defense. Both the federal and state constitutions protect the rights of criminal
defendants to present a complete defense. U.S. CONST amend. VI; W ASH CONST.
art. I, § 22; Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347
(1974); State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). But the right to
present a defense is not without limitation. State v. Darden, 145 Wn.2d 612, 621,
41 P.3d 1189 (2002). For example, “the Constitution permits judges to exclude
evidence that is repetitive . . . only marginally relevant or poses an undue risk of
harassment, prejudice, [or] confusion of the issues.” Holmes v. South Carolina,
547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quotations
omitted). Moreover, state courts have broad latitude under the constitution to
establish rules excluding evidence from criminal trials. United States v. Scheffer,
523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998). An evidence rule
abridges a defendant’s right to present a defense when it infringes on a weighty -9- No. 82588-7-I/10
interest of the defendant and is arbitrary or disproportionate to the purpose it was
designed to serve. Holmes, 547 U.S. at 324.
In assessing a constitutional challenge to a trial court’s evidentiary decision,
we must first determine if the evidence is at least minimally relevant. State v. Orn,
197 Wn.2d 343, 353, 482 P.3d 913 (2021). “If the evidence is relevant, the
reviewing court must weigh the defendant’s right to produce relevant evidence
against the State’s interest in limiting the prejudicial effects of that evidence to
determine if excluding the evidence violates the defendant’s constitutional rights.”
Jennings, 199 Wn.2d at 63.
The excluded evidence here was not relevant to the reasonableness of
Berkley’s subjective fear, as Berkley was not aware of either Whitemarsh’s alleged
reputation for violent behavior or his prior instances of impaired and aggressive
driving. In the absence of Berkley’s prior knowledge, none of the excluded
evidence—Whitemarsh’s DUI convictions, his mother’s testimony that he was an
aggressive driver, or Cunningham’s testimony about the previous road rage
incident—helps establish that Berkley had a subjectively reasonable belief of
imminent harm at the time he shot Whitemarsh in the face and head. While the
evidence is relevant for the purposes of corroborating Berkley’s testimony that
Whitemarsh was the primary aggressor, we nonetheless conclude that the State’s
interest in excluding this otherwise inadmissible and possibly misleading evidence
outweighs Berkley’s need to present it.
Recently, in Jennings, our Supreme Court applied this balancing test to a
trial court’s evidentiary ruling excluding a toxicology report showing that the victim
in a felony murder case had a high level of methamphetamine in his system. Id. - 10 - No. 82588-7-I/11
at 53. Jennings argued that the toxicology report was crucial to his claim of self-
defense because it corroborated his testimony that he believed the victim was high
on methamphetamine when Jennings shot him during a physical altercation. Id.
at 66.
The Supreme Court concluded that the exclusion of this evidence did not
violate Jennings’s right to present a defense. The court determined the evidence
was only minimally probative because even if the victim was high on
methamphetamine during the altercation, there was no qualified expert to testify to
the drug’s effect on the victim. Id. The evidence, it held, would have left the jury
to speculate as to what effect the drugs might have had on the victim when
determining whether Jennings’s fear was reasonable. Id. The court further
reasoned that, despite the exclusion of the report, Jennings was still able to assert
his theory of the case by testifying regarding his subjective fear and his belief that
Burton was high on methamphetamine. Id. at 67. For these reasons, Jennings’s
interest in presenting the evidence could not overcome the State’s interest in
voiding the prejudicial and speculative effect of the report. Id.
We reach the same conclusion. Here, as in Jennings, the State’s interest
in excluding potentially misleading and speculative evidence outweighed Berkley’s
interest in admitting the evidence to corroborate his testimony that Whitemarsh
instigated the confrontation leading to the shooting.
First, as in Jennings, the evidence was only minimally probative as
corroboration of what Berkley testified to at trial. And it could mislead a jury into
assuming that if Whitemarsh had threatened to harm a driver without provocation
during an earlier incident, he must have similarly threatened Berkley for no reason. - 11 - No. 82588-7-I/12
Washington courts typically disfavor evidence intended to suggest that because a
person acted wrongfully in the past, they must also be doing so now. State v. Lee,
188 Wn.2d 473, 488, 396 P.3d 316 (2017). Similarly, the evidence had a high
probability of leading the jury to speculate that Whitemarsh’s past acts and
behaviors provided Berkley with a reasonable basis for such a belief when in fact
Berkley had no knowledge of those events.
Second, the exclusion of the evidence did not limit Berkley’s ability to
present his theory of the case. He testified and gave his account of Whitemarsh’s
aggressive behavior with the support of evidence showing that Whitemarsh was
greatly impaired during the incident. Multiple eyewitnesses corroborated some
aspects of Berkley’s account of the events, including that Whitemarsh was driving
at an excessive rate of speed and at too close of a distance to avoid the rear-end
collision when Berkley unexpectedly braked. Berkley’s interest in presenting the
excluded evidence thus cannot overcome the inflammatory, marginally relevant,
and prejudicial nature of that evidence, and the trial court did not violate his right
to present a defense.
Prosecutorial Misconduct
Berkley next argues that the prosecutor committed misconduct when, in
closing, he described Berkley’s second shot as an “execution.” We disagree.
A prosecutor must ensure that they do not violate a defendant’s right to a
constitutionally fair trial. State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551
(2011). To establish prosecutorial misconduct, a defendant must show that the
prosecuting attorney’s statements were both improper and prejudicial. State v.
Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). The defendant must - 12 - No. 82588-7-I/13
demonstrate that any improper conduct ‘“resulted in prejudice that had a
substantial likelihood of affecting the jury’s verdict.’” Id. at 375 (quoting State v.
Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012)). When determining whether
prosecutorial misconduct requires reversal, we must review the statement in the
context of the entire case. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747
(1994).
During closing argument in this case, the prosecutor anticipated that
Berkley’s focus in closing would be on instruction 7, which read in pertinent part:
It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of the slayer when:
(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury; (2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and (3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.
The State pointed out the number of times the word “reasonably” appears in this
instruction and argued that “almost nothing Mr. Berkley did from the time he
slammed on his brakes to the time he fired the second shot is reasonable.”
In discussing the evidence, the prosecutor argued:
Mr. Whitemarsh is still seat belted in, door is still closed, posed no threat. His hands are empty, no weapons were visible. Yet when he had a gun stuck in his face, he started to turn his head, according to Mr. Berkley, and look around.
So apparently Mr. Whitemarsh did what was natural. When he was faced with a fear, he tried to avoid it. That’s what most people - 13 - No. 82588-7-I/14
would do. That is a reasonable reaction. And according to Mr. Berkley, that reaction is what justifies shooting Mr. Whitemarsh right in the bottom lip, right through his teeth, right through his jaw, right into his tongue because he started looking around. Still belted in the car, not trying to get out. Hands still empty. Not reaching for anything at that point, even by Mr. Berkley’s own version. No visible weapons. He was looking around. So he got shot in the face.
That shot to the face made Mr. Whitemarsh turn his head, according to the defense, and sort of slump over. So Mr. Berkley would have you believe that it’s reasonable under those circumstances to then assume he must be reaching for a weapon. He has to get something that can defeat a firearm. Words pretty close to that that Mr. Berkley used.
Even though his gun’s in his hand, pointed at Mr. Whitemarsh, safety off, all he had to do is pull the trigger. And that’s what he chose to do instead of just waiting to see if there was any actual threat and that was it.
He walked to face his fear out of anger. He put a gun right in the face, and then he uses the reaction to excuse what he does next by shooting Mr. Whitemarsh. And then he uses the further reaction to him shot [sic] to justify doing it again. Now, of course, the evidence will show you it didn’t exactly go down that way. But even if you want to accept that as a hundred percent accurate version, it doesn’t justify what happened under the law as instructed to you today.
The second shot in this case is probably better characterized as an execution.
Berkley objected to this last statement as “inflammatory,” an objection the court
overruled, identifying it as “argument.”
Berkley argues the use of the word “execution” is impermissibly
inflammatory and should be deemed misconduct in a case in which the State knew
the victim was arguably the first aggressor. Our Supreme Court has previously
held that a prosecutor’s statement that the defendant acted as “judge, jury and
executioner of the victim” did not constitute prosecutorial misconduct. State v.
Davis, 141 Wn.2d 798, 873, 10 P.3d 977 (2000). Berkley seeks to distinguish
- 14 - No. 82588-7-I/15
Davis on the basis that the defendant in that case was charged with aggravated
first degree murder, whereas Berkley was charged only with second degree
murder.
We do not consider this distinction a material one. The State charged
Berkley with intentionally causing Whitemarsh’s death. The State had to prove
and the jury found that “the defendant acted with intent to cause the death of
Steven Whitemarsh.” In Berkley’s closing, his attorney admitted that “[t]his case is
not about who killed Mr. Whitemarsh. This case is about Mr. Berkley’s mental
state. This case is about self-defense and whether or not the use of self-defense
was justified in this case.” The State’s characterization of Berkley’s second shot
as an “execution,” was its way of arguing that Berkley was not acting in self-
defense but, instead, made an intentional decision to kill Whitemarsh. In context,
we deem the characterization to be an argument based on reasonable inferences
from evidence presented at trial.
Berkley relies on State v. Loughbom, 196 Wn.2d 64, 470 P.3d 499 (2020),
to contend the comment was an unfair characterization of the evidence. That case
is also distinguishable. The defendant was convicted of the delivery of
methamphetamine. During opening and closing arguments, the prosecutor made
repeated remarks about the “the war on drugs.” Id. at 70. The court held that the
prosecutor’s multiple references to the war on drugs deprived Loughbom of a fair
trial because it “was a thematic narrative designed to appeal to a broader social
cause.” Id. It found significant the fact that
the prosecutor framed Loughbom’s prosecution as representative of the war on drugs multiple times over the course of a single-day trial, in addition to alluding to the local drug problem during jury selection. - 15 - No. 82588-7-I/16
Even more suspect is the near verbatim phrasing invoking the war on drugs at each point in the trial. . . . It follows that this is not a case where the prosecutor inadvertently uttered the phrase war on drugs. This rhetoric was practiced and strategically employed at both ends of Loughbom’s trial. Indeed, even the Court of Appeals, which found no misconduct, described the State’s use of the war on drugs as the prosecutor’s “theme.”
Id. at 75-76.
In contrast to the prosecutor’s comments in Loughbom, the prosecutor here
mentioned the term “execution” just once and did not engage in the same type of
practiced, thematic rhetoric. And the reference to an “execution” was a factual
characterization of Berkley’s second shot based on evidence at trial, and not an
appeal to some larger social issue. The evidence was undisputed that Whitemarsh
was still seated, with his seat belt buckled, and still inside his locked car, when
Berkley approached the vehicle and fired the first shot, striking Whitemarsh in the
face. Berkley then waited a few seconds before firing again, this time striking
Whitemarsh in the head. He fired from a distance of only 6 to 24 inches. This
evidence supports a reasonable inference that if the first shot was intended to
incapacitate Whitemarsh, the only conceivable purpose for the second shot was
to end Whitemarsh’s life.
Nor can Berkley show that the prosecutor’s statement had a substantial
likelihood of affecting the verdict. The eyewitness testimony, the video recorded
by Reeder, and Berkley’s own account of the shooting, supported the State’s
theory that Berkley caused the car accident, intentionally approached
Whitemarsh’s vehicle, pulled his gun and shot Whitemarsh to death, when
Whitemarsh posed no threat to Berkley. Berkley has failed to demonstrate that the
- 16 - No. 82588-7-I/17
prosecutor’s single reference to the act of pulling the trigger the second time as an
“execution” affected the outcome of his trial.
Legal Financial Obligations
For the first time on appeal, Berkley argues that, because he lacks the ability
to pay restitution, the victim penalty assessment (VPA), and the DNA collection
fee, these mandatory legal financial obligations (LFOs) must be stricken as an
unconstitutionally excessive fine. But Berkley did not raise this constitutional
challenge below and the record is inadequate to determine whether, in fact,
Berkley lacks the financial resources to pay these fees. We therefore decline to
reach the issue on its merits here.
At sentencing, the prosecution asked the court to impose a $500 VPA, a
$100 biological sample collection fee, court costs, and $6,028.47, in restitution.
The prosecutor informed the court that “the little bit I know about Mr. Berkley makes
me think he can pay” the LFOs. The prosecutor also stated that “with respect to
the financial obligations and firearms, I do know that an emergency response
protection order or the ERPO was served soon after this incident, and a number
of quality firearms were taken out of Mr. Berkley’s house, and they certainly cover
these financial obligations that I’m recommending.”
Berkley’s attorney indicated she did not anticipate having any objection to
the amount of the requested restitution. Counsel did ask the court to waive
discretionary LFOs because “my client is indigent at this point. He did lose his job
once this incident happened and it became public in the media. He is going to
prison, so he’s obviously not going to be making very much money. I think the
most you can make over there is $1.76 an hour.” Counsel acknowledged that the - 17 - No. 82588-7-I/18
police seized several guns from Berkley’s home but stated that “ownership of those
weapons has already been transferred to someone else.”
The trial court did not inquire of Berkley what assets he had or his ability to
pay the LFOs because it decided instead to waive all discretionary LFOs. It
ordered Berkley to pay restitution, and the mandatory VPA and DNA collection fee
and ordered Berkley to pay these LFOs in monthly installments of $50 per month,
commencing 60 days after his release from confinement. The restitution order
signed the same day as the judgment and sentence indicates that the restitution
amount was based on the parties’ agreement.
Berkley now contends the mandatory LFOs are an unconstitutionally
excessive fine because he lacks the financial ability to pay them. Both the State
and federal constitutions prohibit excessive fines. W ASH CONST. art. I, § 14; U.S.
CONST. amend. VIII. But Berkley did not raise this argument below. Under RAP
2.5(a), we may refuse to review any claim of error which was not raised in the trial
court. A party may raise a claimed error for the first time on appeal if it is a manifest
error affecting a constitutional right. RAP 2.5(a)(3). But “[i]f the facts necessary to
adjudicate the claimed error are not in the record on appeal, no actual prejudice is
shown and the error is not manifest.” State v. McFarland, 127 Wn.2d 322, 333,
899 P.2d 1251 (1995).
Berkley has not demonstrated manifest error because he failed to create a
record necessary for this court to conclude he lacks the ability to pay the VPA, the
DNA assessment, or restitution. The State contended Berkley had sufficient
assets to pay them. In his motion and declaration for an order authorizing the
appointment of an attorney at public expense on appeal, Berkley indicated that he - 18 - No. 82588-7-I/19
had household income of $2,900 in social security per month. And Berkley testified
that, as a mechanical engineer, he worked on aerospace defense contracts and
was employed up until the day of the shooting. Berkley admitted he owned a
significant number of firearms that, according to the prosecutor, had substantial
value and we do not know to whom he transferred ownership when the court
entered the ERPO. It is thus not clear from this record that Berkley lacks the ability
to pay restitution or the other mandatory LFOs imposed by the trial court. Berkley
cannot establish manifest error and we decline to reach the issue under RAP
2.5(a).
Affirmed.
WE CONCUR:
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