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State v. Clarke

The Court of Appeals of Washington, Division One
May 19, 2008
144 Wn. App. 1037 (Wash. Ct. App. 2008)


No. 59547-4-I.

May 19, 2008.

Appeal from a judgment of the Superior Court for King County, No. 05-1-09277-3, Brian D. Gain, J., entered February 9, 2007.

Affirmed by unpublished per curiam opinion.

Marcus Clarke shot and killed Alefosio Hefer. Clarke claimed the shooting was justified because he was acting in defense of Tamua Maile, who was fighting with Alefosio. The jury rejected Clarke's defense and convicted him of murder in the second degree. On appeal, Clarke contends the trial court violated his constitutional right to present a defense and to confront witnesses by excluding evidence related to his defense of others, and excluding evidence concerning a key prosecution witness. Contrary to Clarke's argument, there is no showing that the court abused its discretion in excluding the evidence. The court's challenged evidentiary rulings did not prevent Clarke from either arguing his theory of the case to the jury or impeaching the credibility of the witness. We also reject Clarke's claim of ineffective assistance of counsel and the other claims he raises pro se and affirm Clarke's conviction.


In the early morning hours of June 26, 2005, a 911 caller reported hearing at least one gunshot while attending a party at a private residence in Covington. The 911 caller stated that the injured male was in the backseat of her car and that one of the males said his cousin had been shot. A second 911 caller reported that a fight had broken out at the party and that she had heard multiple gunshots. Within a matter of minutes, several police officers met the car carrying the injured male at a nearby intersection. The shooting victim, who was later identified as Alefosio Hefa, was airlifted to Harborview Hospital where he later died of a single gunshot wound to the side of his chest. Meanwhile, a number of police officers converged on the site of the party. During the subsequent investigation, police interviewed numerous people who had attended the party, including the 911 callers, Clarke, and Alefosio's cousins, Soane Hefa and Semi Hefa. Several witnesses were interviewed more than once. During the second interview, some witnesses described the chaotic events leading up to the fatal shooting quite differently or in greater detail. Clarke was charged with felony murder in the second degree of Alefosio while armed with a firearm and assault in the second degree of Larry Tupou while armed with a firearm.

Because there are several people with the last name of Hefa, we refer to them by their first names to avoid confusion. No disrespect is intended.

Following his arrest, Clarke was advised of Miranda warnings and agreed to speak Page 3 with police and take a polygraph. Clarke denied having anything to do with the shooting. Clarke also told the polygraph examiner that he had nothing to do with the shooting and maybe someone falsely accused him because they were angry with him.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

By agreement of the parties the polygraph test itself was not admitted into evidence, and the polygraph examiner was referred to at trial as an "interview specialist.

Pretrial, the defense sought to introduce photographic evidence of a gun that was found in a fire pit at Soane's and Semi's residence the day after the shooting. The court reserved ruling until after Soane testified. The defense also sought to ask about the circumstances concerning Semi's recent federal conviction for possession of a stolen firearm. Clarke argued that because Semi had initially told police that the gun did not belong to him, the circumstances of the offense were admissible under ER 608. The court granted the defense motion.

At trial, numerous witnesses described what happened at the party. There was a disc jockey, a wet T-shirt trampoline contest, and many kegs of beer at the party. To pay for the party, money was collected at a gate at the bottom of the driveway. Partygoers were charged $5 or $10, depending on whether they would be drinking.

Blake Butler and Leslie Larsen were collecting money at the gate when Soane, his brother Semi, and several other Samoans arrived. Soane responded with profanity when Butler told him there was an entrance fee to the party. According to Butler, Soane threatened him and pulled up the basketball jersey he was wearing to display a gun tucked in his waistband. Concerned for his safety, Butler let Soane's group into the party without paying. Larsen told the party organizers about Soane and his group. Rumors began circulating that a group of Pacific Islanders had guns.

At some point, Soane and Tamua Maile started shouting obscenities at one another. But the argument ended without any punches being thrown. Shortly thereafter, Soane, who was very drunk, left the party.

After Soane left, Maile and Soane's brother Semi got into an argument. When Alefosio arrived at the party, he joined Semi. The two of them then rushed at Maile. Alefosio and Maile threw a few punches at one another. Clarke, who was also standing a short distance away, pulled a semiautomatic handgun from his waistband and shot Alefosio. The crowd of 20 or more people encircling the fighters then scattered in all directions. Within a matter of minutes, a number of gunshots were fired, apparently to clear the area of partygoers.

After Soane testified but before Semi testified, the court addressed whether the defense would be permitted to cross examine Semi about the gun found in the fire pit. The court also revisited the admissibility of the facts underlying Semi's stolen firearm conviction. The court rejected Clarke's argument that the discovery of the gun was evidence of his fear that Alefosio and Semi had guns. The court ruled that Clarke's reasonable apprehension was limited to what he knew at the time of the incident, not later. The court also ruled that Clarke's examination of Semi about the stolen firearm conviction was limited to eliciting the facts of the conviction under ER 609.

When Semi testified, he admitted throwing a punch at Maile and calling Alefosio for "back up." Semi also admitted that he had prior convictions for robbery, delivery of cocaine and possession of a stolen gun, and that he had not been entirely truthful during his interview with police. But Semi denied ever kicking Maile during their brief altercation or seeing anyone hovering over Maile with a bottle.

Another witness testified that after the shooting he and Clarke left together. The witness said that Clarke was concerned about whether someone might recognize him as the shooter and that Clarke told him that he planned to get rid of the firearm. Clarke also told the witness that he shot Alefosio because he did not think anyone else would stand up for Maile.

Clarke testified at trial. He admitted shooting Alefosio, but claimed he did so in defense of Maile. Clarke said that he came to the party with Maile and he shot Alefosio only after seeing Maile being kicked by Semi and repeatedly hit by Alefosio. Clarke also claimed that a third person was involved and that this person was poised to hit Maile with a bottle. Clarke admitted that he had not told the truth when he was first contacted by police. When asked whether the Hefas had threatened him since his arrest, Clarke replied, "yes." But when defense counsel attempted to inquire further, the court sustained the State's objection to the inquiry. Outside the presence of the jury, defense counsel stated that as Semi left the witness stand, he looked at Clarke and mouthed the words, "you're dead." Defense counsel argued the threat showed Clarke's fear was reasonable and his actions were justified. The court ruled the evidence was inadmissible.

The jury found Clarke guilty of second-degree felony murder of Alefosio but not guilty of second-degree assault of Tupou. The court imposed a standard range sentence.


Clarke contends three of the court's evidentiary rulings violated his constitutional right to present a defense and confront witnesses. Under the federal and state constitutions, a criminal defendant has the right to present evidence in his or her defense and the right to confront and cross examine adverse witnesses. U.S. Const. amend. VI; Wash. Const. art. 1, § 22 (amend. X); Davis v. Alaska, 415 U. S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right to confront adverse witnesses); State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996). There is no constitutional right, however, to introduce irrelevant evidence. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).

Evidence is relevant if it has a tendency to make the existence of any fact of consequence more probative or less probative than it would be without the evidence. ER 401. We review the trial court's determination of relevancy for manifest abuse of discretion. State v. Russell, 125 Wn.2d 24, 73, 882 P.2d 747 (1984). "An abuse of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007).

Justifiable homicide is defined as homicide in the lawful defense of the "slayer, or . . . of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished." RCW 9A.16.050(1). A homicide is therefore justified only where the slayer has used such force as is reasonably necessary under the circumstances. State v. Griffith, 91 Wn.2d 572, 576, 589 P.2d 799 (1979).

First, Clarke contends the trial court deprived him of his right to present a defense when it excluded evidence that a gun was found in an outdoor fire pit during a search of Semi and Soane's residence. Specifically, Clarke argues that because "Semi acted together with Alefosio in attacking Maile," there is "circumstantial evidence connecting the gun to the individuals Clarke feared intended to inflict serious injury on Maile." Thus, Clarke argues the trial court's decision significantly impaired his right to present evidence in his own defense.

Reply Br. of Appellant at 1.

Clarke's argument blurs the distinction between circumstantial evidence and speculation. Evidence that a gun was found in the fire pit of a residence Semi shared with Soane the day after the shooting does not make it more likely that Semi was armed on the night of the party. And while one witness testified that Soane was armed when he came to the party, it is undisputed that Soane left the party before the shooting occurred. Nor was the fire pit gun one of the four or more firearms that were fired at the scene of the homicide. According to forensic testing, none of the shell casings found at the party could have been fired from the gun found in the fire pit. On this record, any claim that either Alefosio or Semi was armed at the time of the shooting is speculative. Furthermore, Clarke bases his argument on the belief that "[p]roof that Alefosio and/or his associates were armed on the night in question was integral to establishing that Clarke's fear was reasonable and his actions justified." But given Clarke's theory of the case, the reasonableness of Clarke's actions or beliefs did not turn on whether Soane's group was actually armed. It was enough that people said they were and that Clarke believed those rumors. It is also undisputed that Clarke did not see Semi, Soane, or Alefosio in possession of a firearm before he aimed and fired at Alefosio. The trial court's decision to exclude the fire pit gun evidence did not preclude Clarke from arguing his theory of the case and was not an abuse of discretion.

Reply Br. of Appellant at 5-6.

Next, Clarke contends his right to confront witnesses was violated when the trial court excluded evidence concerning the facts underlying Semi's federal conviction for possession of a stolen firearm. Specifically, Clarke argues that because Semi initially told police that the weapon did not belong to him, yet Semi later pleaded guilty to possession, the underlying facts of the conviction were admissible under ER 608(b) as a specific instance of conduct bearing on Semi's credibility as a witness.

ER 608 provides that: "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."

While a criminal defendant has the right to confront and cross examine adverse witnesses, this right is also not without limitations. State v. Ahlfinger, 50 Wn. App. 466, 474, 749 P.2d 190 (1988) ("The Sixth Amendment right to cross-examine witnesses is not absolute but must be applied to advance the accuracy of the truth determining process in criminal trials."). The trial court's ruling on the scope of cross examination should not be disturbed absent a manifest abuse of discretion. State v. Dickenson, 48 Wn. App. 457, 466, 740 P.2d 312 (1987). "Failing to allow cross-examination of a state's witness under ER 608(b) is an abuse of discretion if the witness is crucial and the alleged misconduct constitutes the only available impeachment." State v. Clark, 143 Wn.2d 731, 766, 24 P.3d 1006 (2001). "Where a case stands or falls on the jury's belief or disbelief of essentially one witness, that witness' credibility or motive must be subject to close scrutiny." State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980). Whether a defendant's confrontation right has been denied is determined on a case by case basis after examination of all the surrounding circumstances and the evidence admitted at trial. Ahlfinger, 50 Wn. App. at 474.

A claim similar to the one raised by Clarke was addressed in Clark. In that case, Clark was denied an opportunity to impeach a witness under ER 608(b) with specific instances of conduct underlying his 1983 convictions for theft and forgery. On appeal, Clark argued those instances of conduct were probative of the witness's truthfulness and would have assisted the jury in assessing his credibility. The Supreme Court held that the trial court did not abuse its discretion in excluding the impeachment evidence since the witness already had been impeached with many other criminal convictions. Clark, 143 Wn.2d at 767.

Here, as in Clark, the trial court's ruling did not deprive Clarke of his ability to attack or undermine Semi's credibility. To begin with, Semi was not the only witness to testify about the circumstances surrounding the fatal shooting. A number of other eyewitnesses testified regarding the events in question. More importantly, even in the absence of the facts underlying the federal conviction, Clarke had ample means to impeach Semi. Clarke established that Semi had a number of prior criminal convictions, was currently in custody, and lied to police because he wanted to "do some street justice" to whoever killed Alefosio. Because "[o]nce impeached, there is less need for further impeachment on cross-examination," the trial court did not abuse its discretion by limiting cross examination on Semi's federal conviction for possession of a stolen firearm. Clark, 143 Wn.2d at 766.

Clarke next contends the trial court should have allowed him to testify that when Semi was leaving the courtroom, he mouthed the words "you're dead." Citing State v. Jones, 25 Wn. App. 746, 610 P.2d 934 (1980), Clarke argues for the first time on appeal that it was error to exclude this testimony because it was admissible to show that Semi was biased.

In Jones, the court held that where a police officer was the State's only witness to the defendant's crime, extrinsic evidence that the officer threatened to testify in a manner that would "fry" the defendant should have been admitted to show the officer's bias against the defendant. Jones, 25 Wn. App. at 750.

A defendant has a right to impeach a prosecution witness with evidence of bias. Davis v. Alaska, 415 U. S. at 316-18; State v. Dickenson, 48 Wn. App. 457, 469, 1 740 P.2d 312 (1987). But a party may not argue on appeal different grounds for the admissibility of evidence than the grounds raised at trial. State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983). Anticipating this result, Clarke contends that trial counsel was ineffective for failing to argue that the evidence established bias and to cite to Jones and other cases to establish the admissibility of the alleged courtroom threat.

In order to establish ineffective assistance of counsel, a defendant bears the burden of showing both that counsel's performance was deficient and that the deficiency prejudiced the defense. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987); Strickland v. Washington, 466 U. S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established where the defendant shows that the outcome of the proceedings would likely have been different but for counsel's deficient representation. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995). "If the prejudice prong is not proved by the defendant, then the court need not proceed to an examination of the performance prong." In re Pers. Restraint of Riley, 122 Wn.2d 772, 780, 863 P.2d 554 (1993).

Here, Clarke cannot establish prejudice. Semi admitted on cross examination that he purposely withheld material information regarding his cousin Alefosio's death from police because he wanted to find the killer and "do some street justice." When a defendant is allowed to expose an individual's particular motive to lie, "`it is of peripheral concern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point down to the jury.'" United States v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995) (quoting, United States v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994)). Moreover, the record shows that Clarke's trial counsel appeared thoroughly familiar with the facts of the case, made timely objections, proposed and obtained jury instructions, and fully and skillfully argued Clarke's case to the jury. Even if defense counsel's failure to seek admission of the alleged courtroom threat on the ground that it showed Semi's bias was a mistake, this isolated incident did not deprive Clarke of his right to a fair trial. Because the outcome of the trial would not have been any different had defense counsel argued the alleged courtroom threat evidence was admissible under Jones, Clarke has not established he was denied his right to effective assistance of counsel.

Report of Proceedings (RP) 12/5/06 at 142-43.

Clarke also raises several claims in an "Appellant's Pro se Brief/Statement of Additional Grounds." Clarke contends the State was improperly allowed to malign his character and portray him as a person with prior contacts with the criminal justice system, and who idolizes violent people and fired the gun in the "gangster style." Specifically, he argues the court erred in admitting (1) the testimony of Detective Broggi that "booking photos of people" were used to generate the photomontages reviewed by certain witnesses; (2) a black T-shirt which allegedly had a depiction of rapper 2PAC on the front of it; and (3) the testimony of the State's firearms expert that a gun fired sideways is "referred to as the gangster style." As to the first and third evidentiary issues, no objection was made to the evidence at trial. Any evidentiary error has therefore not been preserved for appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). With regard to the remaining claim of evidential error, Clarke argues the depiction of 2PAC on his shirt improperly 3 allowed the jury to associate Clarke with a recording artist linked to gang violence and music derogatory to women. But Clarke does not deny that the T-shirt belongs to him. As far as the record before this court reveals, the exhibit does not have any distinguishing features. Therefore, this issue also has not been adequately preserved for purposes of our review.

The T-shirt has not been included as part of the record on appeal.

Clarke also contends that certain exculpatory evidence was impermissibly withheld by the prosecution in violation of his rights under Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He argues the State failed to disclose the fact that complaints had surfaced regarding the work preformed by the ballistic expert who testified at his trial. Clarke attaches an article from a local newspaper in support of his argument. Since Clarke relies on matters outside the record, he must raise the issue in a properly supported personal restraint petition. State v. McFarland, 127 Wn.2d at 338 n. 5.

In addition, Clarke claims the prosecutor committed misconduct during rebuttal argument when she asked the jurors to reject his defense "`because it becomes an escape hatch for every person that when they see their buddy getting beat up, getting involved in a punching match, to just pull out a 9 millimeter and shoot to kill.'" Clarke contends these remarks so prejudiced him that he was denied his right to a fair trial. It is undisputed that the trial court rejected this exact argument in Clarke's unsuccessful motion for a new trial. Generally, the trial court is in the best position to decide whether prejudice results in the context of trial. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996)rev. denied, 4 156 Wn.2d 1014, 132 P.3d 147 (2006). A court's decision to grant or deny a new trial is reviewed for a manifest abuse of discretion. State v. Dawkins, 71 Wn. App. 902, 906, 863 P.2d 124 (1993).

A prosecutor engages in misconduct if he makes improper comments and a substantial likelihood exists of the improper comments affecting the verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). To establish prosecutorial misconduct, the defendant bears the burden of showing an impropriety as well as its prejudicial effect. State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995). Alleged misconduct must be viewed "in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given." State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998). Reversal is required only if "`there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.'" State v. Gerdts, 136 Wn. App. 720, 730, 150 P.3d 627 (2007) (quoting Bryant, 89 Wn. App. at 874).

Here, in denying Clarke's motion for a new trial, the court ruled:

THE COURT: I'll deny the motion for a couple of reasons. One, I am satisfied it was not objected to at the time.

Secondly, the context in which that argument was made, I am satisfied that in the context of the self-defense argument that was raised in this particular case and even in the response is clearly limited to the facts that were present in this particular case.

And basically the prosecutor asked the jury to reject the defense in this case.

So I am satisfied it is not akin, under the facts and circumstances of this particular argument, to the let's-send-a- message-type of argument you're referring to.

The motion is denied.

We agree with the trial court's determination that no reversible misconduct was committed.

Clarke also contends the trial court erred when it failed to allow the defense to introduce the gun found by police in the fire pit. This issue appears to be virtually the same argument Clarke's appointed counsel makes on appeal.


Summaries of

State v. Clarke

The Court of Appeals of Washington, Division One
May 19, 2008
144 Wn. App. 1037 (Wash. Ct. App. 2008)
Case details for

State v. Clarke

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. MARCUS DANE CLARKE, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: May 19, 2008


144 Wn. App. 1037 (Wash. Ct. App. 2008)
144 Wash. App. 1037