IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) No. 76119-6-1 Respondent, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION STEVEN M. MARSHALL, ) ) Appellant. ) FILED: March 25, 2019 ) LEACH, J. — Steven M. Marshall appeals his convictions for murder in the
first degree and second degree unlawful possession of a firearm. Marshall filed
pro se motions with the trial court while counsel represented him. He claims that
testimony about these motions violated his constitutional right to access the
courts and ER 403. He also contends that the prosecutor committed prejudicial
misconduct when she elicited a lay witness's opinion about his guilt.
First, because a criminal defendant does not have a constitutional right to
hybrid representation, testimony about Marshall's pro se motions did not penalize
him for exercising his constitutional rights to access the courts. And Marshall did
not preserve his ER 403 claim for appeal because he did not raise it in the trial
court. Second, when, as here, defense counsel does not object at trial to the
alleged prosecutorial misconduct, the defendant must show that the misconduct No. 76119-6-1/ 2
was so flagrant and ill-intentioned that a jury instruction would not have cured
any prejudice. Because Marshall does not show this, we affirm.
FACTS
Ryan Prince helped Michael Helsel-Perkins (Perkins) build medical
marijuana dispensaries and manage the dispensaries' employees. Prince lived
with Perkins and Perkins's girlfriend, Chelsea Dew, at a house in Renton.
Perkins had an alarm system installed at the house. The security system's digital
video recorder(DVR) was in a downstairs closet.
On February 17, 2014, Prince arrived home around 8:00 p.m. and
disarmed the alarm system. No one else was home. Neighbor James McDonald
heard gunshots at Prince's house close to 8:00 p.m. McDonald texted a
neighbor at 8:11 p.m., asking if his neighbor also had heard them. He called 911
around 8:20 p.m. From McDonald's balcony, he thought he heard voices or
wrestling and saw the silhouettes of more than one person in Prince's house. He
testified that before the police arrived, all the lights went off at Prince's house
"like they were killed with a circuit breaker."
When Deputy William Brown arrived at Prince's house, he saw Prince's
vehicle parked in front of the garage with a dry spot next to it where it looked like
another car had been parked. All the lights in the house were off. No one
answered the door, so Brown left.
-2- No. 76119-6-1/ 3
Dew returned home later that night and found Prince on the floor in his
bedroom with a bloody face and blankets covering his body. Dew called 911.
Prince was pronounced dead at the scene. Police collected a pair of broken
Burberry-brand eyeglasses on the front porch, which Dew testified did not belong
to her, Perkins, or Prince. Both Marshall's brother and ex-wife testified that
Marshall sometimes wore Burberry glasses. The only latent print on the glasses
matched Marshall's thumb. Someone had removed the alarm system's DVR
from the downstairs closet. Police found $27,000 in cash in Prince's backpack in
his bedroom.
Police also found a 40-caliber bullet embedded in the bathroom closet, a
40-caliber shell casing just outside the house, a 22-caliber casing in a groove
between planks on the porch and on the downstairs landing, a 380-caliber casing
in the dining room, and a 40-caliber casing in the dining room. A medical
examiner performed an autopsy on Prince and determined that he died from
multiple gunshot wounds. She found four gunshot wounds and recovered three
bullets from Prince's body.
Police found Prince's cell phone off the side of the road near his house.
On Prince's phone they discovered a photograph of a vehicle taken at 8:10 p.m.
the night of his murder. The license plate number belonged to a Chrysler PT
Cruiser registered to Allison Sierra, Marshall's ex-wife. She testified that
-3- No. 76119-6-1 / 4
Marshall had been the full-time driver of the PT cruiser since September 2013.
She stated that he had been driving it on February 14, 2014, when she last saw
him before the incident.
On February 22, the police stopped and arrested Marshall while he was
driving a Dodge Durango registered to a girlfriend, Shamarra Scott. Police
seized "several" cellular phones from Marshall's person and another that was on
the ground near the driver's door of the Dodge. They found a 40-caliber SIG
Sauer handgun in a backpack on the front passenger seat. They also found an
envelope, an identification card, and a prescription pill bottle with Marshall's
name in this backpack. Marshall's DNA (deoxyribonucleic acid) was found on
the magazine and ammunition inside the gun. Testing showed that this gun fired
the 40-caliber bullet and shell casings found at Prince's house.
Police also searched the contents of Marshall's cell phones and the cell
phone of Ryan Erker, Marshall's co-defendant. Marshall and Erker exchanged
several text messages and calls with one another using these phones. Their text
messages suggested that Erker was monitoring Perkins's dispensaries and
attempting to locate his house. On February 6, 2014, Erker sent Marshall a
message stating, "Brother, I think I've got the address we've been looking for!
I'm having it checked tonight. .. . Keep your fingers crossed. This is the big
one." On February 12, Erker texted Marshall,"We know where the honey pot is,
-4- No. 76119-6-1/ 5
so we got time, bro." Marshall responded,"Yeah. We'll put it off for another day.
Let's shoot for tomorrow."
Cell tower evidence showed primarily Erker's phone and sometimes
Marshall's phone connected to the tower closest to Prince's house periodically
between February 7 and 17, 2014. Neither phone had connected to the tower
closest to Prince's house before February 7. And neither phone connected to
that tower after February 17. On February 17, between 8:00 p.m. and 8:40 p.m.,
Erker and Marshall placed multiple calls to each other. Each of their phones
connected to the cell tower closest to Prince's house for some of these calls. At
8:13 p.m., both Erker's and Marshall's cellular numbers connected to the tower
closest to Prince's house. Erker called Marshall several times between 8:37 p.m.
and 8:41 p.m. All these calls connected to a tower west of the tower closest to
Prince's house.
Marshall had another girlfriend at the time, Soqueara Bailey. She testified
that on the night of February 17, she heard Marshall's and Erker's voices
downstairs but could not hear what they were saying. Late that night, Marshall
woke her up and told her, "I fucked up." Marshall had told her similar things in
the past when he had impregnated other women. She stated that a few days
later, Erker asked her to throw away a DVR or DVD player, which she threw in a
dumpster. Paul Steve had bought and sold cars for Erker. He testified that on
-5- No. 76119-6-1 /6
February 17, Erker called him to ask him to sell a PT Cruiser because it had
been used in a crime.
The State charged Marshall with one count of first degree murder and one
count of second degree unlawful possession of a firearm. It alleged that Marshall
caused Prince's death while committing or attempting to commit first degree
robbery and first degree burglary. It also claimed that Marshall knowingly had a
handgun in his possession or control and had previously been convicted of first
degree malicious mischief. The jury found him guilty of first degree murder and
returned a special verdict finding that he was armed with a firearm during the
crime. At a bifurcated bench trial, the trial court found Marshall guilty of second
degree unlawful possession of a firearm. Marshall appeals.
ANALYSIS
Pro Se Legal Motions
Marshall challenges "the trial court's admission of [his] pro se legal
motions as substantive evidence of guilt" on constitutional and evidentiary
grounds. We reject his challenges. We also note that information about the
content of these motions was admitted through Scott's testimony only; contrary to
Marshall's argument, the trial court did not admit the motions themselves as
exhibits.
-6- No. 76119-6-1 / 7
The State called Scott as a witness. During her direct examination of
Scott, a prosecutor asked about handwritten documents that Marshall had mailed
to Scott before trial. Scott testified that she helped Marshall put some of these
documents on pleading paper. While represented by an attorney, Marshall filed
these pleadings as pro se motions on his own behalf. He filed a "motion to
challenge search warrant" and "request for Franks1 hearing." He asked the court
to suppress evidence that the police obtained from Sierra, including evidence
from the search of her cell phone. Marshall also filed a "motion to suppress
evidence pursuant [to] CrRLJ 3.6," requesting suppression of the Burberry
glasses found at Prince's house.
At trial, Scott identified exhibit 106 as "a motion to suppress," which she
confirmed were the handwritten documents that Marshall had mailed to her. The
State asked, "Motion to suppress what?" Defense counsel objected "as to
relevance." The trial court sustained the objection: The State then asked about
the similarities between Marshall's assertions in these documents and the
declaration that Scott filed with the court after receiving them. The State offered
exhibit 106 into evidence, and Marshall objected based on relevance. The State
reserved the issue. Scott testified that the documents she received from
Marshall included assertions about police treating Sierra poorly. The State asked
1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). -7- No. 76119-6-1/8
what the documents said about Sierra. Marshall objected based on hearsay and
relevance. Outside of the presence of the jury, the State maintained, "[W]ithin
these pleadings is Mr. Marshall's theory of the case." The State asserted that it
was offering the handwritten letters "strictly for Mr. Marshall's consciousness of
guilt, his attempt to influence the statement of other witnesses, [and] his
successful attempt to do it." Marshall maintained his previous objection.
The trial judge stated, "As I think has come up before, I mean, there's no
such thing as hybrid representation. Mr. Marshall [is] represented by Counsel. I
consider motions presented by Counsel when an individual decides to send
documents out into the world, they send documents out into the world." The trial
court ruled that Marshall's statements in the documents he sent Scott were not
hearsay. But it stated that the motions contained statements that were "maybe
subject to a 403 analysis," including Marshall's mention of spousal privilege,
Ferrier2 warnings, and Miranda.3
The State stated that it would prepare a redacted version of exhibit 106.4
Marshall's counsel responded, "[T]here's a 403 objection as well, but it's all the
same thing. If [the State is] going to inquire as to portions [of the exhibit], we'll
2 State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927(1998). 3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4 The record does not show that the State ever prepared a redacted version of exhibit 106 or that the trial court ever admitted exhibit 106 as an exhibit. -8- No. 76119-6-1/ 9
just raise objections as those come forward." The trial court ruled that because
the question to which Marshall had objected had asked what exhibit 106 said
about Sierra and the document said a lot about her, some of which may be
inadmissible, Marshall's objection was sustained on "that phrasing."
Then, twice over Marshall's relevance objections, the State asked Scott if
Marshall had asked her to type his. motions, in part, to prevent Sierra's cell phone
from being available in evidence. Without objection, the State proceeded to elicit
more testimony about the factual statements in exhibit 106 and about Scott's
encounter with the police.
Again, without objection, Scott testified that one of the handwritten
motions Marshall sent her asked the court to suppress evidence about the gun
found in the backpack in her Durango. The State showed Scott exhibit 108,
which Scott confirmed were the motions that she had typed for Marshall based
on the documents he sent her. The record does not show that the trial court
. admitted exhibit 108. Marshall did not object when Scott confirmed that one of
the motions asked the court to suppress evidence about the pair of Burberry
eyeglasses found at the scene based on Marshall's claim that they were not his.
Marshall • also did not object when the prosecutor read paragraphs from the
motions detailing Marshall's argument about the glasses.
-9- No. 76119-6-1/ 10
A. Constitutional Claim
First, Marshall claims that Scott's testimony about his pro se legal motions
violated his constitutional rights to access the court system, to due process, and
to have inadmissible evidence suppressed. We reject this claim.
As a preliminary matter, the State contends that Marshall did not preserve
this claim below. An appellate court may refuse to review any claim of error that
a party did not raise in the trial court unless one of three exceptions applies.5
First, Marshall claims that his trial counsel raised the issues at trial.
Normally, a party may appeal an evidence decision only on the specific ground of
the objection made at tria1.6 But an appellate court will review an evidence ruling
if the specific basis for the objection is "'apparent from the context.'"7 Here, when
the State asked Scott what the letters said about Sierra, Marshall's trial counsel
objected, stating, in part, "It seems to me that Mr. Marshall is entitled to create
legal pleading. He's done that." Marshall contends that this objection informed
the trial court that he had a right to file legal motions and preserved his claim that
testimony about his pro se motions violated his constitutional right to access the
courts. Marshall also claims that his counsel's objections based on relevance
5 RAP 2.5(a). 6 Statev. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182(1985). 7 State v. Braham, 67 Wn. App. 930, 935, 841 P.2d 785 (1992) (internal quotation marks omitted)(quoting State v. Pittman, 54 Wn. App. 58, 66, 772 P.2d 516 (1989)). -10- No. 76119-6-1/ 11
"further alerted the trial court to the dispositive issue" that Marshall was
exercising his right to file legal motions.
The trial court responded, in part, "[T[here's no such thing as hybrid
representation." Marshall asserts that this statement means the trial court
"clearly understood the nature of the constitutional objection" because the central
issue on appeal is "tension" between the right to access the court system and the
lack of a right to hybrid representation. But because Marshall now challenges
testimony about his pro se motions based on his constitutional right to access the
court system, not based on a claimed right of hybrid representation or relevance,
his trial counsel's objections were not sufficiently related to his current
constitutional claim to preserve it.
Alternatively, Marshall asserts that admission of his pro se motions during
trial qualifies as manifest constitutional error, reviewable for the first time on
appeal under RAP 2.5(a)(3). An error is manifest if it caused actual prejudice.8
This means the defendant must make a plausible showing that the asserted error
had practical and identifiable consequences in the tria1.8 But this court first
decides whether the alleged error implicates a constitutional right. To determine
if an error is of constitutional magnitude, a reviewing court assumes the alleged
8 State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125(2007). 9 Kirkman, 159 Wn.2d at 935. -11- No. 76119-6-1/ 12
error occurred and then assesses if that error actually violated the defendant's
constitutional rights.10
Criminal defendants have a constitutional right to counse1.11 They also
have a constitutional right to waive assistance of counsel and represent
themselves.12 Marshall acknowledges, however, that they do not have a state or
federal constitutional right to "hybrid representation," through which defendants
may serve as co-counsel with their attorneys.13 Represented defendants have
no constitutional right to file pleadings with the trial court.14 But Marshall
contends that individuals do have a constitutional right of access to the courts to
redress grievances, which "is rooted in the petition clause of the First
Amendment to the United States Constitution."15 They also have a constitutional
right to suppression of illegally obtained evidence.16 And individuals may not be
penalized for the lawful exercise of a constitutional right.17 Marshall relies on
three cases to illustrate this principle.
10 State v. Kalebaugh, 179 Wn. App. 414, 420-21, 318 P.3d 288 (2014). 11 State v. Romero, 95 Wn. App. 323, 326, 975 P.2d 564(1999). 12 Romero, 95 Wn. App. at 326. 13 Romero, 95 Wn. App. at 326. 14 State v. Blanchev, 75 Wn.2d 926, 938, 454 P.2d 841 (1969). 15 In re Pers. Restraint of Addleman, 139 Wn.2d 751, 753-54, 991 P.2d 1123(2000). 16 State v. Duncan, 146 Wn.2d 166, 170, 176, 43 P.3d 513(2002). 17 State v. Burke, 163 Wn.2d 204, 221, 181 P.3d 1(2008). -12- No. 76119-6-1/ 13
First, Marshall relies on In re Personal Restraint of Addleman,18 where our
Supreme Court held that the Indeterminate Sentencing Review Board's decision
to deny Addleman parole, in part, because of the litigation and personal
grievance actions he had filed, violated Addleman's constitutional right of access
to the judicial system. Second, Marshall cites State v. Burke,18 where our
Supreme Court held that the prosecution's use of Burke's silence as substantive
evidence of his guilt violated the Fifth Amendment and article 1, section 9 of the
Washington Constitution. Third, Marshall relies on State v. Gauthier,2° where this
court held that the prosecution's presentation of evidence that Gauthier refused
to consent to warrantless sampling of his DNA as substantive evidence of his
guilt violated Gauthier's right to invoke with impunity his Fourth Amendment and
article 1, section 7 protections.
While the trial court did not admit Marshall's pro se motions into evidence,
he claims that like these three cases, "the trial court's admission of [his] pro se
legal motions as substantive evidence of guilt penalized him for the lawful
exercise of his constitutional right[ 1" to access the court system and have illegally
obtained evidence suppressed. In Addleman, Burke, and Gauthier, the conduct
at issue penalized the defendants for exercising a constitutional right: the right to
redress grievances, the right to remain silent, and the right to refuse consent to a
18 139 Wn.2d 751, 753-56, 991 P.2d 1123(2000). 18 163 Wn.2d 204, 208-10, 221-23, 181 P.3d 1(2008). 28 174 Wn. App. 257, 261-63, 267, 271, 298 P.3d 126 (2013). -13- No. 76119-6-1/14
warrantless sampling of DNA. But here, a defendant's rights to access the court
system and have illegally obtained evidence suppressed do not include a
constitutional right to file pro se pleadings while represented by counsel. By
accepting legal representation, Marshall gave up the right to contribute to his
defense by filing pleadings. If a represented defendant wants to file a motion to
suppress, he has a constitutional right to do so only through his counsel.
Because a represented defendant does not have a constitutional right to hybrid
representation, Scott's testimony about Marshall's pro se motions did not violate
any constitutional right of Marshall. He does not show manifest constitutional
error.
B. Evidentiary Claim
Alternatively, Marshall claims that the trial court abused its discretion by
admitting testimony about his pro se motions in violation of ER 403. As a
preliminary issue, the State contends that Marshall did not preserve this claim on
appeal because he objected on the basis of ER 403 only once and the court
sustained that objection. All his other objections cited as grounds either
relevance or hearsay.
The State correctly describes the record. Marshall made an ER 403
objection to the State's question about what the letters that Marshall mailed to
Scott said about Sierra. And the trial court did sustain this objection. Then
-14- No. 76119-6-1/ 15
Marshall's trial counsel stated that he would object to questions the State asked
about the exhibit as necessary going forward. Marshall's trial counsel based all
later objections on relevance and hearsay only. Because this court generally
may refuse to review any claim of error that a party did not raise at the trial court,
we decline to consider Marshall's ER 403 challenge.
Prosecutorial Misconduct
Next, Marshall claims that the State committed prejudicial prosecutorial
misconduct by purposefully eliciting a witness's opinion about his guilt. We
disagree.
The State questioned Scott about a letter she wrote Marshall in late
February or early March of 2014. Marshall did not object to the State's
questions.
Q. You wrote him an eight-page letter. And, in this statement, you told the detective that in that letter, you asked him, you told him, that he needed to remove the wickedness from his life; is that correct?
A. That's correct.
Q. What wickedness?
A. Everybody has wickedness, because everyone sins every day. So he needs to ask for forgiveness of his sins from being a young child, from harsh words, what it is you say against other people, thoughts, everything.
Q. When you wrote him this letter, he was in jail for murder, and you had asked him about it, and he told you to shut up. In this letter, did you tell him that he needed to ask God for forgiveness? -15- No. 76119-6-1 / 16
A. We ask God for forgiveness every day.
Q. Ms. Scott, he needed to ask God for forgiveness for murdering Ryan Prince. Isn't that what you meant?
A. No, that's not what I meant.
[State]: I don't have any more questions.
(Emphasis added.)
Prejudicial prosecutorial misconduct violates the defendant's Sixth
Amendment right to a fair tria1.21 "Defense counsel's failure to object to the
misconduct at trial constitutes waiver on appeal unless the misconduct is 'so
flagrant and ill-intentioned that it evinces an enduring and resulting prejudice'
incurable by a jury instruction."22
ER 701 permits lay witness testimony when it is (1) rationally based on the
perception of the witness,(2) helpful to the jury, and (3) not based on scientific or
specialized knowledge. But opinion testimony about a criminal defendant's guilt
violates the defendant's constitutional right to a trial by an impartial jury.23 A
prosecutor commits misconduct when her questioning of a witness asks a
witness to provide inadmissible testimony.24 "A prosecutor has no right to call to
21 State v. Fisher, 165 Wn.2d 727, 746-47, 202 P.3d 937(2009). 22 Fisher, 165 Wn.2d at 747 (internal quotation marks omitted) (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)). 23 State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213(2014). 24 State v. Jerrels, 83 Wn. App. 503, 507-08, 925 P.2d 209 (1996). -16- No. 76119-6-1 / 17
the attention of the jury matters or considerations which the jurors have no right
to consider."25
Here, the prosecutor intentionally asked for Scott's opinion about
Marshall's guilt when the prosecutor asked Scott if she wrote to Marshall that "he
needed to ask God for forgiveness for murdering Ryan Prince." Because this
testimony violated Marshall's constitutional right and the prosecutor intentionally
elicited it, the prosecutor committed misconduct. But the prosecutor's conduct
was not so flagrant and ill-intentioned that an instruction would not have cured
any resulting prejudice.
First, Marshall claims that because there were no eyewitnesses to the
murder and the primary issue at trial was identity, an instruction could not have
cured the resulting prejudice. But the other evidence of Marshall's guilt was
sufficiently abundant that an instruction could have cured any resulting prejudice.
Marshall's and Erker's text messages establish that they located Prince's
home, referred to it as the "honey pot," and intended to carry out a plan that
required them to locate his home. Cell phone data shows them near Prince's
house in the days leading up to the murder and at the time of the murder. In
addition, police found Burberry eyeglasses with only Marshall's fingerprint at the
scene, witnesses testified that they had seen him wear Burberry glasses, and a
25 State v. Beloarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988). -17- No. 76119-6-1 / 18
Facebook picture shows him wearing Burberry glasses. Sierra testified that
since September 2013 Marshall had been the primary user of her PT Cruiser,
which was photographed at Prince's house at the time of his murder. And Steve
testified that Erker asked him to sell that PT Cruiser on the night of the murder
because it had been used in a crime. Further, the gun located in Marshall's
backpack fired the bullet and some of the cartridge casings found at the scene.
After the murder, Marshall told Bailey that he had "fucked up." And only after
Scott received a letter from Marshall stating that police treated her poorly did she
file a declaration making this claim.
Second, the record does not show that the prosecutor further questioned
Scott about her letter or referred to Scott's testimony about the letter at any later
point during trial. Marshall relies on State v. Jerrels,26 where Division Two of this
court held the prosecutor committed prejudicial misconduct by asking the child-
victims' mother her opinion about whether her children were telling the truth
about the alleged sexual abuse. But in Jerrels, "[t]he improper questions were
asked three different times, giving them a cumulative effect."27 This "cumulative
effect" is absent here where the prosecutor referenced Scott's letter only the one
time while she was questioning Scott.
26 83 Wn. App. 503, 507-08, 925 P.2d 209 (1996). 27 Jerrels, 83 Wn. App. at 508. -18- No. 76119-6-1 / 19
Third, Marshall also relies on Jerrels to support the proposition that a
loved one's opinion on the guilt of the accused or the veracity of a witness is
highly prejudicial. There, the court reasoned that the prosecutor's improper
questioning was prejudicial, in part, because "[a] mother's opinion as to her
children's veracity could not easily be disregarded even if the jury had been
instructed to do so."28 Here, Scott testified that she has been "considered
[Marshall's] common law wife [for s]everal years now." And they have a child
together. But she also testified that she has known Marshall for 10 years and
they have "been friends in between things. [They]'ve both had other
relationships." Indeed, at the time of the murder, Marshall had at least three
girlfriends, including Scott. Regardless of how Scott characterizes her
relationship with Marshall, her sporadic romantic relationship with him is not like
a mother's relationship with her children.
Fourth, Marshall notes that the religious implications of Scott's letter may
have been "particularly persuasive for some jurors." The opposite assumption,
however, is equally as reasonable. We do not consider this argument
persuasive.
28 Jerrels, 83 Wn. App. at 508. -19- No. 76119-6-1/ 20
Last, the trial court gave the standard instruction to the jury that the
lawyers' remarks, statements, and arguments are not evidence. And "[j]urors are
presumed to follow the court's instructions."29
For these reasons, we conclude that the prosecutor's misconduct was not
so flagrant and ill-intentioned that it could not have been cured by an instruction.
Statement of Additional Grounds
Marshall makes a number of constitutional challenges in his statement of
additional grounds. This court reviews constitutional challenges de novo.3° We
reject Marshall's claims.
A. Fourth Amendment
Marshall contends that his Fourth Amendment right to privacy was
violated on three grounds. We disagree.
The Fourth Amendment protects individual privacy against certain kinds of
governmental intrusions.31 It guarantees the "right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures."32 A search occurs under the Fourth Amendment when the
government intrudes upon a subjective and reasonable expectation of privacy.33
29Kirkman, 159 Wn.2d at 937. 39 State v. Budd, 185 Wn.2d 566, 571, 374 P.3d 137 (2016). 31 Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). 32 U.S. CONST. amend. IV. 33 State v. Goucher, 124 Wn.2d 778, 782, 881 P.2d 210 (1994). -20- No. 76119-6-1 / 21
First, Marshall claims that the police conducted an illegal pretexutal stop,
an illegal seizure, and an illegal custodial interrogation of Sierra. But a party
alleging a constitutional claim must have standing.34 "Fourth Amendment rights
are personal rights which may not be vicariously asserted. . . . A defendant may
challenge a search or seizure only if he or she has a personal Fourth
Amendment privacy interest in the area searched or the property seized."35
Because the stop and interrogation of Sierra and the search of her cell phone
implicate Sierra's privacy interest, not Marshall's, he does not have standing to
challenge this conduct under the Fourth Amendment.
Second, Marshall claims that the police interrogation of Sierra violated his
privacy right because the spousal privilege statute protects him. RCW
5.60.060(1) prohibits a husband or wife or domestic partner from testifying
against the other during their marriage or domestic partnership or after the
marriage or domestic partnership about a communication made during the
marriage or domestic partnership without the consent of the nontestifying
spouse. But Marshall does not contest that at the time of Prince's murder, he
and Sierra were divorced and had been in only an "ongoing domestic relationship
for over 14 years." An "ongoing domestic relationship" is not a relationship
protected by the spousal privilege statute.
34 See Goucher, 124 Wn.2d at 787 ([W]e must decide whether the Defendant has the standing to challenge the scope of this warrant."). Goucher, 124 Wn.2d at 787. -21- No. 76119-6-1/ 22
Third, Marshall claims that the State had the King County Jail intercept his
incoming and outgoing mail to his "spouse"36 without a warrant. But he did not
raise this claim below and does not claim manifest constitutional error. Because
an appellate court may refuse to review any claim of error that a party did not
raise in the trial court unless one of three exceptions applies,37 we decline to
consider Marshall's claim.
B. Ineffective Assistance of Counsel
Marshall next claims that he received ineffective assistance of counsel on
three grounds. We disagree.
The Sixth Amendment to the United States Constitution guarantees the
right to effective assistance of counsel to help ensure a fair tria1.38 To
prove ineffective assistance of counsel, an appellant must show that (1) counsel
provided representation so deficient that it fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced him.39 To prove
deficient performance, the defendant must show that counsel's performance fell
below an objective standard of reasonableness.4° Appellate courts examine trial
counsel's performance with great deference, and the defendant must overcome
36 It is unclear to whom Marshall refers when he says "spouse." Sierra is his ex-wife, and Scott testified that she was Marshall's "common law wife." 37 RAP 2.5(a). 38 State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). 39 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816(1987). 40 Strickland, 466 U.S. at 687-88. -22- No. 76119-6-1 / 23
the presumption that the challenged action "might be considered sound trial
strategy.'”41 Counsel's performance is not deficient for failing to object to
admissible evidence.42 The prejudice prong requires that the defendant establish
there is a reasonable probability that but for counsel's deficient performance, the
outcome of the proceedings would have been different.43
First, Marshall claims deficient performance on the ground that his trial
counsel did not ask the trial court to suppress the evidence from Sierra's cell
phone that Marshall asked the court to suppress in his pro se motions. As
discussed above, Marshall does not have standing to challenge the evidence
police obtained from Sierra's cell phone. Although Marshall also appears to
challenge admission of this evidence based on ER 403, he did not object on this
basis at trial, so we decline to consider it under RAP 2.5(a).
Second, Marshall contends that he received deficient performance
because his trial counsel did not ask to have a biased juror excused for cause. If
the record demonstrates the actual bias of a juror, seating this juror is manifest
error." Here, a juror told the court that a friend of hers had died in a home
invasion and it "brought back memories and . ..feelings." This juror testified that
she did not "think that there's too much of an emotional connection" or that her
41 Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101,76 S. Ct. 158, 100 L. Ed. 83(1955)). 42 Grier, 171 Wn.2d at 32. 43 Grier, 171 Wn.2d at 34. 44 State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103(2015). -23- No. 76119-6-1 / 24
"decision-making would be compromised." She thus stated that she could
remain impartial, so the record does not demonstrate actual bias.
Third, Marshall maintains that his trial counsel should not have used an
"all or nothing" strategy and should have requested lesser-included offense
instructions on first and second degree manslaughter. The decision to exclude
or include lesser included offense instructions "ultimately rests with defense
counsel."45 In State v. Grier,46 our Supreme Court reasoned that an all or nothing
strategy is not necessarily evidence of deficient performance because the
defendant and his counsel could reasonably have believed that this strategy was
the best approach to achieve an acquittal. The court also stated Grier did not
prove prejudice because the court assumed, as it was required to, that the jury
could not have convicted Grier of the charged offense unless the State had met
its burden; and the availability of a lesser included offense would not have
changed the outcome.47 Similarly, here, Marshall cannot show prejudice
because we must assume that the jury would not have convicted him of first
degree murder unless the State met its burden of proof.
C. Confrontation Clause
Last, Marshall claims Steve's testimony that Erker told Steve, "one of the
guys owns the car," violated his Sixth Amendment right to confront witnesses
45 Grier, 171 Wn.2d at 32. 46 171 Wn.2d 17, 43, 246 P.3d 1260 (2011). 47 Grier, 171 Wn.2d at 43-44. -24- No. 76119-6-1 / 25
against him because he was unable to cross-examine Erker. But the record
does not show that Steve provided the quoted testimony. We do not consider
this claim.
DNA Fee
Marshall asks that this court strike his $100 DNA fee from his judgment
and sentence consistent with our Supreme Court's recent holding in State v.
Ramirez." There, our Supreme Court discussed and applied House Bill (HB)
1783, which became effective June 7, 2018, and applies prospectively to all
cases on direct appeal." The court stated that HB 1783 amended RCW
43.43.7541 to provide that "the DNA database fee is no longer mandatory if the
offender's DNA has been collected because of a prior conviction."50 The court
also explained that HB 1783 "amends former RCW 10.01.160(3) to expressly
prohibit courts from imposing discretionary costs on defendants who are indigent
at the time of sentencing: 'The court shall not order a defendant to pay costs if
the defendant at the time of sentencing is indigent as defined in RCW
10.101.010(3)(a) through (c).'"51
Here, Marshall has a felony conviction from 2011. RCW 43.43.754 would
have required that he have a DNA sample collected as a result of that felony.
48 191 Wn.2d 732, 426 P.3d 714(2018). 49 Ramirez, 191 Wn.2d at 747. 59 Ramirez, 191 Wn.2d at 747. 51 Ramirez, 191 Wn.2d at 748 (quoting LAWS OF 2018, ch. 269,§ 6(3)). -25- No. 76119-6-1 / 26
Because Marshall's DNA fee was previously collected, the DNA fee is no longer
mandatory under RCW 43.43.7541. The trial court found Marshall indigent and
ordered him to pay the $100 DNA fee. Because a trial court may not impose
discretionary fees on indigent defendants under RCW 10.01.160(3), we strike
Marshall's $100 DNA fee from his judgment and sentence.
CONCLUSION
We affirm. Testimony about the substance of Marshall's pro se motions
that he filed while counsel represented him did not violate his constitutional right
to access the courts because a criminal defendant does not have a hybrid right to
s representation. Because ample evidence supports Marshall's guilt, he does not
show that the prosecutor's misconduct caused him prejudice.
WE CONCUR:
-26-