No. 41960-2-II c/w No. 44158-6-II
Penoyar, J. — Jeremiah Park was convicted of first degree premeditated murder for the stabbing death of Joseph Gemar. He appeals, arguing that there is insufficient evidence to prove premeditation beyond a reasonable doubt. He also submits a statement of additional grounds (SAG) containing 19 issues. There is sufficient evidence of premeditation because Park had motive, he assaulted Gemar with a weapon that was not readily available, and he inflicted multiple wounds. Additionally, none of the issues in his SAG require reversal.
On February 19, 2010, Gemar visited Park's house seeking heroin. Gemar and Park grew up together. Gemar was intoxicated when he arrived. Rachel Samuels was staying at Park's house and was present when Gemar arrived. She had never before met Gemar. She testified that Park and Gemar appeared to be on good terms. After entering the house, Gemar "playful[ly]" grabbed Samuels's chest. Report of Proceedings (RP) (Mar. 2, 2011) at 98. Samuels asked him to stop, and Park told Gemar he could mess with Park instead. Gemar then pinned Park face down on the bed and pretended to "hump his rear end." RP (Mar. 2, 2011) at 100. Gemar stopped when Park asked. Samuels testified that Park appeared embarrassed once Gemar let him up.
Samuels is addicted to heroin. She testified that she used heroin, valium, and possibly methamphetamine on February 19 before Gemar arrived. She further testified that heroin does not affect her ability to accurately perceive events, but it may affect her ability to remember events.
Cody Wade and Ashley Jorgenson arrived after this incident, also seeking heroin. All three witnesses testified that Gemar repeatedly asked Park for drugs. Park told Gemar that he would give Gemar drugs if Gemar went to the store for him first. The two continued to banter over whether Gemar would go to the store before or after he received the drugs. The bantering was friendly until Gemar head butted Park. Wade stepped between Park and Gemar, and Park left the bedroom where the altercation occurred. Wade followed Park into the kitchen; he testified that Park appeared mad and was pacing back and forth saying, "I can't believe he'd disrespect me like that in my own house." RP (Mar. 3, 2011) at 162. Wade did not see Park take anything from the kitchen, nor did he see anything in Park's hands.
After a couple of minutes, Wade followed Park back into the bedroom. Samuels and Jorgenson had remained with Gemar in the bedroom. While Park was gone, Gemar sat down on the bed and appeared to calm down. When Park reentered the bedroom, he walked straight at Gemar and began "wrestling" him. RP (Mar. 3, 2011) at 166. Samuels testified that Park had a blank look on his face, and all three witnesses stated that Park said nothing when he walked in and that they did not see either man with a weapon. Wade and Jorgenson left the room as soon as the wrestling began. Samuels remained in the room and said that she saw Park hit Gemar in the side. Gemar asked Park to stop and asked him why he was doing this. Samuels said that Gemar sounded as though he was in pain. Park then jumped off Gemar, and Gemar limped out of the bedroom. Park followed Gemar out of the bedroom and gave Jorgenson and Wade, who were in the living room, some heroin. Wade testified that Park asked him to leave, saying that "now's not a good time." RP (Mar. 3, 2011) at 170. Samuels testified that Park asked Wade to follow Gemar. Jorgenson and Wade left with the heroin without looking for Gemar. They did not know that Gemar had been injured.
After Gemar left Park's house, a neighbor saw him stumbling along the street. He pounded on another neighbor's door and later collapsed on the porch. The neighbor called 911. The police responded to the call a minute later and found Gemar lying semi-conscious on the porch, covered with blood. The police did not find a weapon on or around Gemar. He was taken to the hospital and pronounced dead within 20 minutes of arrival. Gemar had a triangular stab wound—likely caused by the blade twisting inside him—on the right side of his chest, which severed several branches of the pulmonary artery and vein and caused his death. He also had a horizontal stab wound on the left side of his chest, two parallel incisions on the right side of his neck, and a J-shaped incision on his right cheek. The medical examiner testified that Gemar would have survived only if he had received "extremely rapid medical attention." RP (Mar. 7, 2011) at 155.
Once Gemar left Park's house, Park began frantically pacing. Samuels asked him "why he did that" and Park responded that he "shanked that mother-fucker." RP (Mar. 2, 2011) at 149. Park then cut himself with a knife, called 911, and told the operator that someone had tried to rob him and that he had been beaten and stabbed. Park told Samuels to give a false statement to police. He also broke apart the cell phone that Gemar brought to the house and cut out and threw away part of a blanket that had Gemar's blood on it.
When the police arrived at Park's house to investigate the robbery, they separated Park and Samuels. Samuels agreed to make a written statement. She first wrote a false statement but after asking an officer about the perjury language at the bottom of the statement, she told the officer that the statement was a lie and declined to sign it. Samuels voluntarily went with the officer to a satellite office to write a truthful statement. She gave an additional statement three days after the incident.
Park told the officers at the scene that an intruder entered his house with a knife and said "[g]ive me all your shit." RP (Mar. 8, 2011) at 109. He stated that the intruder punched, head butted, and cut him before running off in an unknown direction. Officers interviewed Park later that evening at the police station, and he repeated his story about the robbery. He added that he may have stabbed the robber during the struggle. When the police told Park that Gemar had died and asked how he felt about it, Park replied "Unfortunate that this man had to come over and ruin my nice night." Ex 103B, line 2234.
Officers found a blood trail leading from Park's house to the neighbor's house where Gemar collapsed. Officers searched Park's house pursuant to a warrant and found a trash bag containing a blanket with blood stains on it and a piece cut out of it and a t-shirt and pants covered in Gemar's blood. They found another trash bag outside the house containing a piece of blanket also covered in Gemar's blood.
The State charged Park with first degree premeditated murder or, in the alternative, first degree murder by extreme indifference to human life; intimidating a witness; and drug possession, arising from an incident in jail.
Park requested a CrR 3.5 hearing to determine the admissibility of several of his statements, including those made during a post-Miranda interview. The trial court found that Park was lucid during the interview and capable of understanding and responding to the detectives' questions. The trial court concluded that Park's waiver of his Miranda rights was valid and the interview was admissible.
At the substantive trial, Park admitted that the story he told police on the night of the murder was a lie. He admitted to stabbing Gemar, but stated that he did so in self defense. He testified that, after the head butting, he attempted to physically remove Gemar from the house, but Gemar pulled Park onto the bed and put him in a "stranglehold." RP (Mar. 8, 2011) at 19. Park said that, after he got away from Gemar, he grabbed a paring knife from the kitchen because he was afraid of Gemar. He then went back into the bedroom and told Gemar to leave, and Gemar attacked him. Park stabbed Gemar twice as Gemar attempted to tackle him. Park said that nobody else was in the room during the stabbing.
Two of Park's prior assault convictions were briefly discussed during his cross examination. The prosecutor mentioned an incident that occurred in Pacific County and an incident involving Park's ex-girl friend's stepfather.
Park pled guilty to the possession charge. The trial court dismissed the murder by extreme indifference alternative at the close of the State's case. The jury convicted Park of first degree premeditated murder and intimidating a witness. The jury also found that Park was armed with a deadly weapon and showed an egregious lack of remorse. The judge sentenced him to a total of 404 months. Park appeals.
I. Insufficient Evidence of Premeditation
Park argues that there is insufficient evidence to prove premeditation. We disagree. Evidence is legally sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the elements of the charged crime beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). We interpret all reasonable inferences in the State's favor. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). Credibility determinations are for the trier of fact and are not subject to review. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006).
A person is guilty of first degree murder when "[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person." RCW 9A.32.030(1)(a). Premeditation involves "more than a moment in point of time." RCW 9A.32.020(1). It is the "deliberate formation of and reflection upon the intent to take a human life and involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short." State v. Hoffman, 116 Wn.2d 51, 82-83, 804 P.2d 577 (1991). Premeditation may be shown by either direct or circumstantial evidence, but the circumstantial evidence must be substantial. State v. Bingham, 105 Wn.2d 820, 824, 719 P.2d 109 (1986). Examples of circumstances supporting a finding of premeditation include "motive, prior threats, multiple wounds inflicted or multiple shots, striking the victim from behind, assault with multiple means or a weapon not readily available, and the planned presence of a weapon at the scene." State v. Ra, 144 Wn. App. 688, 703, 175 P.3d 609 (2008) (internal citations omitted).
In State v. Commodore, 38 Wn. App. 244, 248, 684 P.2d 1364 (1984), the court found that there was sufficient evidence of premeditation where the defendant had been arguing with the victim and then left the room to retrieve a weapon. The defendant and the victim were arguing over drugs during a party. Commodore, 38 Wn. App. at 245. After the argument ended, the victim remained on the porch—where the argument took place—and the defendant entered the house. Commodore, 38 Wn. App. at 245. The defendant stood next to the porch door for two minutes, then went into another room, returned with a gun, and shot the victim in the head. Commodore, 38 Wn. App. at 245. The court held that there was sufficient evidence of premeditation because the defendant had motive—the argument over drugs—and he engaged in planning—he stood by for two minutes before retrieving a gun from another room and returning to shoot the victim. Commodore, 38 Wn. App. at 248.
Similarly, here, there is sufficient evidence to prove premeditation. First, Park had motive. Gemar argued with Park over drugs, he embarrassed Park by pinning him down and simulating sex, and he head butted Park. Samuels said that Park appeared embarrassed after Gemar pinned him down, and Wade said that Park appeared angry after the head butting, stating that he could not "believe [Gemar would] disrespect me like that in my own house." RP (Mar. 3, 2011) at 162. Second, Park inflicted multiple wounds. Gemar had two stab wounds to his chest and two cut marks on his neck. Third, Park used a weapon that was not readily available. He left the bedroom and took a knife from the kitchen. See State v. Ortiz, 119 Wn.2d 294, 313, 831 P.2d 1060 (1992) (stating that the fact that defendant took a knife from the kitchen and murdered the victim in the bedroom was a factor in determining that the murder was premeditated). These facts are similar to the facts in Commodore: both defendants had confrontations with the victim immediately prior to the murder, and both defendants left the room after the confrontation and returned a few minutes later with a weapon.
Park argues that each Pirtle factor must be examined before sufficient evidence of premeditation can be found. While each of the factors is relevant to a finding of premeditation, the State need not prove all four. And in this case, there is evidence relevant to each factor.
The Supreme Court stated in Pirtle that there are four characteristics of the crime that are particularly relevant to establish premeditation: motive, procurement of a weapon, stealth, and method of killing. 127 Wn.2d at 644. While these factors are "particularly relevant," they are not elements of the crime, and the State need not prove all four for there to be sufficient proof of premeditation. The Pirtle court cites Ortiz for the proposition that motive, procurement of a weapon, stealth, and method of killing are particularly relevant. 127 Wn.2d at 644. Although the Ortiz court does mention the four factors, it found sufficient evidence of premeditation without discussing motive or stealth. 119 Wn.2d at 312-13. Similarly, courts after Ortiz and Pirtle have found sufficient evidence of premeditation without the presence of all four Pirtle factors. See State v. Sherrill, 145 Wn. App. 473, 485, 186 P.3d 1157 (2008) (holding that, although there was no evidence of motive, procurement of a weapon, or stealth presented, there was still sufficient evidence to establish premeditation).
Although the State does not need to prove all four Pirtle factors, it presented evidence that supports each one. Park argues that there is no evidence that he had a motive to kill Gemar and that he only acted out of fear. However, as discussed above, Park's embarrassment and anger provide motive. The jury heard Park's countervailing self-defense testimony and found it not credible.
Park also argues that, although he procured a weapon, it was not readily accessible or particularly lethal. But the fact that the knife was not readily accessible provides more evidence that Park had time to deliberate and consider his actions. Ra, 144 Wn. App. at 703; State v. Allen, 159 Wn.2d 1, 8, 147 P.3d 581 (2006) (stating that sufficient evidence of premeditation may be found where, among other things, the weapon used was not readily available). Though such evidence would be more probative of premeditation, Park does not cite to any authority stating the weapon has to be "particularly lethal."
Park next argues that the killing was not stealthy because Gemar was in the house for some time before the killing occurred, there were witnesses, and he called 911. This argument is also unpersuasive. The victim in Commodore was in the house for some time before the murder occurred, but the court still found sufficient evidence of premeditation. 38 Wn. App. at 245, 248. Although there were witnesses to Gemar's stabbing, none of them saw the knife, and the jury could infer that Park was attempting to hide it. Park did call 911, but he did not mention that anyone other than himself had been harmed. He also attempted to cover up the stabbing by lying about what happened, cutting his own arm, throwing away his bloody clothes and blanket, and asking Samuels to lie.
Finally, Park argues that the method of killing does not support a finding of premeditation because the incident was not prolonged, Gemar was not attacked from behind, and Gemar did not have any defensive wounds. Park is correct that courts consider whether the murder took place over a prolonged time, whether the victim was attacked from behind, and whether the victim had defensive wounds. See State v. Ollens, 107 Wn.2d 848, 853, 733 P.2d 984 (1987) (stating that striking victim from behind is evidence of premeditation); Sherrill, 145 Wn. App. at 485-86 (stating that a struggle over a period of time and defensive wounds on a victim will support an inference of premeditation). However, in considering the method of the murder, courts also consider whether the defendant inflicted multiple wounds. See Pirtle, 127 Wn.2d at 645 (discussing the method of killing and detailing the number of wounds each victim sustained). There were multiple wounds in this case: two stab wounds on the chest and two cuts on the neck. There is sufficient evidence to prove that Park acted with premeditation. II. Statement of Additional Grounds
Park submitted a lengthy SAG containing 19 issues. He also filed a personal restraint petition (PRP) that included the same issues. The PRP was consolidated with this appeal, and we consider the issues relevant to both below. None of these issues require reversal.
A. Miranda Waiver
Park first argues that his statements on the night of the murder should be suppressed because he could not validly waive his Miranda rights because he was intoxicated. The trial court properly concluded that Park's waiver was valid.
Park testified at the CrR 3.5 hearing that he took six valium pills before the police arrived on the night of the stabbing. He said that he felt "dreamy" and could not remember much after calling 911. RP (Sept. 2, 2010) at 71.
Detectives Davis and Hallowell interviewed Park at the police station. Before beginning the interview, Davis read Park his Miranda rights. Park told Davis that he understood his rights and signed a form acknowledging the same. Park agreed to speak with the detectives and signed a waiver. Both officers testified that Park never invoked his right to remain silent or his right to an attorney during the interview and that no one threatened or coerced Park into speaking with them. Davis testified that Park did not appear to be under the influence of anything and that he seemed to understand the conversation. Hallowell testified that Park appeared to be tired or lethargic but that he answered the questions appropriately and was able to follow the conversation. Officer Reece, who transported Park to the police station and waited with him until the interview, stated that Park was very sleepy and lethargic and appeared to be under the influence of either alcohol or drugs. However, he also said that Park was able to carry on a conversation. The officers gave Park a breathalyzer during the interview, and the results were negative for the presence of alcohol.
The trial court found that Park was lucid during the interview and capable of understanding and responding to the detectives' questions. The trial court concluded that Park's waiver of his Miranda rights was valid and the interview was admissible.
We review the validity of a Miranda waiver de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). A defendant may waive his Miranda rights if the waiver is knowing, voluntary, and intelligent. 384 U.S. at 444; State v. Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999). We examine the totality of the circumstances to determine if the waiver was made voluntarily and with "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Bradford, 95 Wn. App. at 944 (quoting Moran v. Burbaine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)). Intoxication alone does not render a defendant's custodial statements involuntary and thus inadmissible. State v. Turner, 31 Wn. App. 843, 845-46, 644 P.2d 1224 (1982).
In State v. Aten, the defendant took anti-anxiety medication before she waived her rights and spoke with officers. 130 Wn.2d 640, 664, 927 P.2d 210 (1996). The court concluded that her Miranda waiver was valid. Aten, 130 Wn.2d at 665. She was not coerced into speaking with the officers and the officers advised her of her rights prior to the interview. Aten, 130 Wn.2d at 665. There was no evidence that the medication affected her decision making, and she had no difficulty expressing herself. Aten, 130 Wn.2d at 664. Similarly, here, Park was not coerced into giving the interview, and Davis read him his rights before the interview began. All three officers testified that Park was able to follow the conversation and answer questions appropriately. Although Park stated that he does not remember the interview because he ingested valium, the truthfulness of this statement is a credibility determination left to the trier of fact. Cantu, 156 Wn.2d at 831. Park's waiver of his Miranda rights was valid.
B. Prosecutorial Misconduct
Park argues that the prosecutor committed misconduct by (1) misstating the law during closing argument, (2) improperly referencing a juvenile conviction, (3) meeting with a witness, and (4) not arresting a witness with an outstanding warrant. The prosecutor did not commit misconduct in these instances.
1. Standard of Review
To establish prosecutorial misconduct, the defendant must prove both improper conduct and resulting prejudice. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). Misconduct is considered prejudicial only where there is a substantial likelihood that it affected the jury's verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
2. Closing Argument
Park argues that the prosecutor misstated the law regarding premeditation and self defense during closing argument. Because the prosecutor did not misstate the law, we disagree.
We review a prosecutor's remarks during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal, 150 Wn.2d at 578. If a defendant fails to object to an improper remark, he waives his right to assert prosecutorial misconduct unless the remark was so flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). In determining whether the misconduct warrants reversal, we consider its prejudicial nature and cumulative effect. State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005).
During closing argument, the prosecutor stated that Park's indifference to Gemar's death "is just another action of his that shows his intent to kill Joseph Gemar. It shows he committed premeditated murder, shows that he is guilty of that crime." RP (Mar. 9, 2011) at 138. The prosecutor also said, "Defense counsel argued if this was really a premeditated murder, why not give him enough heroin to overdose. Again, that goes back to that conventional idea of premeditation, . . . you know, all the intricate steps to make—to bring that plan to fruition, but again that's not what premeditated murder is." RP (Mar. 9, 2011) at 140. Regarding self defense, the prosecutor stated that "[d]eadly force can only be used if it's an imminent threat and if it's an imminent threat of great bodily injury or an imminent threat of death. . . . Severe pain and suffering or death." RP (Mar. 9, 2011) at 142. Park did not object to any of these statements at trial.
Park also argues that the prosecutor misstated the law during voir dire. However, voir dire was not included in the record, so we do not consider that part of Park's arguments. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Park argues that the prosecutor's comments regarding premeditation directed the jury to find him guilty of first degree murder without intent or premeditation. He is incorrect. The first statement merely discusses evidence produced at trial and tells the jury that it may be used to prove intent. The second statement correctly states that premeditation does not require "intricate steps." Premeditation requires the "deliberate formation of and reflection upon the intent to take a human life." Hoffman, 116 Wn.2d at 82. Further, if any confusion resulted from the statements, it was cured by the jury instructions. The jury was properly instructed that the lawyers' remarks are not evidence and that the law is contained in the jury instructions. The jury was also properly instructed on the definition of first degree murder and premeditation. We presume that the jury follows the court's instructions. State v. Swan, 114 Wn.2d 613, 662, 790 P.2d 610 (1990).
Park also argues that the prosecutor misstated the law regarding self defense because her statement did not mention that the threat need not be actual. However, immediately before making the statement Park objects to, the prosecutor addressed the subjective component of self defense when she said, "What would a reasonable person in Mr. Park's situation, knowing what he knows, do?" RP (Mar. 9, 2011) at 142. She also referred the jurors to their jury instructions for the definition of self defense. In the context of the total argument, the prosecutor's statements were not a misstatement of the law.
3. Prior Convictions
Park argues that the State violated ER 609(b) and (d) when it introduced evidence of a juvenile conviction that was over ten years old. In light of other evidence produced at trial, this remark was not prejudicial.
In response to questions regarding his actions after the stabbing, Park said that he was scared and "on autopilot" because he had "used a weapon for the first time against another human being." RP (Mar. 8, 2011) at 58. The prosecutor responded by asking Park if he had used a weapon against his ex-girl friend's stepfather. Park denied that he used a weapon in that instance. The prosecutor then asked if there was an incident in Pacific County involving a knife. Park replied that he took a knife from someone else and that he never used it to inflict injury. At that point, the court called a recess to discuss the convictions. After reviewing both convictions, the trial court concluded that the prosecutor could not further mention the Pacific County conviction, which was a juvenile conviction from 2000, and that the prosecutor should apologize to Park in front of the jury for incorrectly stating that he used a weapon against his ex-girl friend's stepfather. When the jury returned, the prosecutor stated that she was under the wrong impression regarding the incident with the stepfather and the allegations were that the stepfather had used a weapon, not Park. She then apologized and resumed her questioning.
Under ER 609(b) and (d), both convictions over ten years old and juvenile convictions are generally inadmissible. Here, the trial court concluded that Park's 2000 Pacific County juvenile conviction was inadmissible. However, before the court so ruled, the prosecutor mentioned the conviction by asking Park if there was an incident in Pacific County involving a knife. Park's immediate reply was that he took a knife from someone else, but did not use one himself. Park failed to show that prejudice resulted from this comment. The prosecutor only briefly mentioned the conviction and Park immediately stated that he did not have a knife. The jury did not hear any more of the facts surrounding that conviction. Further, Park admitted to the jury that he stabbed Gemar and that he attempted to cover it up. Given these admissions, it is unlikely that a brief mention of a possible assault conviction would alter the jury's verdict.
4. State's Access to Witnesses
Park next argues that it was improper for the prosecutor to meet with Samuels to "rehearse and direct" her testimony. SAG at 20. He contends that her testimony was rehearsed because her testimony at trial differed somewhat from her earlier statements and she often answered "I don't recall." SAG at 20. The prosecutor's actions were not improper. First, prosecutors have a duty to prepare witnesses for trial. State v. Montgomery, 163 Wn.2d 577, 592, 183 P.3d 267 (2008). It was not improper for the prosecutor to meet with Samuels, who was a witness for the State. Second, to the extent that Samuels's trial testimony differed from her prior statements, Park had the opportunity to impeach her regarding these inconsistencies.
5. Failure to Arrest Samuels
Park argues that it was improper for the State to allow Samuels to "curry favor" by giving statements to the police while there was a warrant for her arrest. SAG at 21. The State did not act improperly. First, there is no evidence that the State entered an agreement with Samuels to obtain her statements or testimony. In fact, Samuels testified that she was not offered anything to testify, that no promises were made to her, and that she did not make any deals with the State or prosecution. Second, even if Samuels had entered into a deal with the State, the prosecutor has discretion to determine
which persons should be targets of investigation, what methods of investigation should be used, what information will be sought as evidence, which persons should be charged with what offenses, which persons should be utilized as witnesses, whether to enter into plea bargains and the terms on which they will be established, and whether any individuals should be granted immunity.Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987).
Park also argues that it was improper for the interviewing detective to "direct" Samuels on what to include in her written statement. SAG at 21. Park mischaracterizes what actually occurred. The detective testified that he asked Samuels for both an oral and a written statement. She recorded the oral statement before writing her written statement. The detective stated that it is standard procedure to remind witnesses of salient points to keep in mind when writing statements and that he did so here. He also testified that he did not direct Samuels to put anything in her written statement that she did not say in her previously recorded oral statement. His actions were not improper.
C. Ineffective Assistance of Counsel
Park argues ineffective assistance because counsel did not object to the prosecutor's "misstatements of the law" during closing argument, did not request fingerprinting on certain items of evidence, and did not research case law regarding the murder by extreme indifference to human life alternative. Under the Strickland test, Park must show that counsel's performance was deficient and that this deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Performance is deficient only if it falls "below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Performance is not deficient if counsel's conduct can be characterized as a legitimate trial strategy. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
Counsel's performance was not deficient. First, defense counsel did not object to the prosecutor's statements during closing argument because, as discussed above, they were not misstatements of the law. Second, counsel's failure to request fingerprinting was a legitimate trial tactic. Park asked his counsel to fingerprint the phone Gemar left at his house and the bags containing his bloody clothes and blanket. It was a legitimate trial tactic for counsel to avoid doing so because the results could have been prejudicial to Park. Finally, without deciding whether counsel actually did fail to research prior to trial and whether that would be deficient performance, no prejudice arose because the trial court granted Park's motion to dismiss the murder by extreme indifference alternative at the close of the State's evidence.
D. Admission of Evidence
Park argues that the trial court erred by (1) granting the State's motion to exclude evidence that Samuels was in custody; (2) overruling his objection to evidence that Gemar's family was distraught; (3) allowing Gemar's brother, a witness for the State, to remain in the courtroom during opening statements; and (4) allowing officers to read from Samuels's police statements in violation of the hearsay rules. His arguments fail.
1. Standard of Review
We review a trial court's admission of evidence to determine if the court exercised its discretion in a manifestly unreasonable manner, or exercised it on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971); State v. Scott, 151 Wn. App. 520, 527, 213 P.3d 71 (2009).
2. Impeachment Evidence
Park argues that the trial court improperly granted the State's motion to exclude evidence that Samuels was in custody for an unrelated probation violation at the time of the trial. However, when the trial court asked Park if he had any problem with this exclusion, counsel said no. Because Park failed to object at the time, he has waived this issue on appeal. RAP 2.5(a); State v. Stein, 140 Wn. App. 43, 68, 165 P.3d 16 (2007).
3. Evidence That Gemar's Family Was Distraught
Park argues that the trial court improperly overruled his objection to the testimony that Gemar's family was distraught. The prosecutor asked an investigating officer if he was able to get any information relevant to the investigation from the victim's family. The officer testified that he attempted to interview the family, but they were "very distraught." RP (Mar. 3, 2011) at 74. Defense counsel objected to the statement's relevance and the trial court overruled the objection. Here, the fact that the family was distraught was relevant to whether they were able to provide information to the officer. Given the high degree of deference owed the trial court, Park has not shown that the trial court's ruling was erroneous.
4. Failure to Exclude a Witness
Park argues that the trial court erred when it failed to exclude Gemar's brother, who testified for the State, from the courtroom during opening statements. Gemar's brother was only allowed in the courtroom for opening statements. At that point, he had not yet testified and the jury would not have known his identity. He was excluded from the courtroom during the rest of the trial, as were all other witnesses. The trial court did not err by allowing him to listen to opening statements.
Park argues that the trial court erred by allowing police officers to read from Samuels's police statements. The trial court allowed the officers, who were present when Samuels gave her statements, to read portions of her statements that were inconsistent with her in-court testimony. The trial court did not err because these statements were not hearsay.
Under ER 801(d)(1), prior inconsistent statements of a testifying witness, given under oath subject to the penalty of perjury, are not hearsay. Courts have held that affidavits are admissible under ER 801(d)(1). State v. Smith, 97 Wn.2d 856, 863, 651 P.2d 207 (1982); State v. Nelson, 74 Wn. App. 380, 387, 391, 874 P.2d 170 (1994). Whether a declaration under penalty of perjury, which is what is at issue here, is similarly admissible depends on (1) whether the witness voluntarily gave the statement, (2) whether there were minimal guarantees of truthfulness, (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and (4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement. Nelson, 74 Wn. App. at 387.
Here, the trial court did not err by admitting portions of Samuels's prior inconsistent statements into evidence. First, Samuels voluntarily wrote the statements. Second, her statements had minimal guarantees of truthfulness. While writing her first statement, she asked one of the officers what the perjury language at the bottom of her statement meant, and he explained that if she intentionally wrote something that was untrue, she could be charged with perjury. Samuels responded by telling the officer that her statement was false and that she wanted to make another statement. It is clear from her actions that she understood that her statements needed to be truthful. Additionally, she gave two statements to the police and both were consistent with each other. Third, her statements were taken as standard procedure to establish probable cause for charging Park. Finally, Samuels was subject to cross examination when she gave the subsequent inconsistent statements.
E. Failure to Dismiss a Juror
Park argues that the trial court erred by failing to dismiss a juror who, on the last day of the trial, said that he might have had brief contact with a witness 13 years ago. SAG at 24. "It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias . . . ." RCW 2.36.110. We review the trial court's decision on whether a juror should be dismissed to determine if it exercised its discretion in a manifestly unreasonable manner, or exercised it on untenable grounds or for untenable reasons. Junker, 79 Wn.2d at 26; State v. Grenning, 142 Wn. App. 518, 540, 174 P.3d 706 (2008). Here, the juror thought that he may have met the first witness—Gemar's brother, who only testified as to Gemar's age and identified a recent picture of him—once, briefly, at a camp site 13 years ago. The juror was not sure that this was the same person, and he testified that whether it was the same person or not, it would not impact his ability to be fair. Given these facts, the trial court did not err by failing to dismiss the juror.
F. Jury Instructions
Park argues that the trial court erroneously failed to give two jury instructions. Because the subjects of the requested instructions were adequately covered elsewhere in the instructions, we disagree.
We review a trial court's refusal to give a particular jury instruction to determine if it exercised its discretion in a manner that was manifestly unreasonable, or exercised it on untenable grounds or for untenable reasons. Junker, 79 Wn.2d at 26; State v. Knutz, 161 Wn. App. 395, 403, 253 P.3d 437 (2011). Jury instructions are sufficient if they allow the parties to argue their theory of the case, do not mislead the jury, and properly state the applicable law. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999). A requested instruction need not be given if the subject of that instruction is adequately covered elsewhere in the instructions. State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988).
Park first argues that the trial court erred when it failed to give his proposed instruction regarding necessary use of force: "Necessary means that, under the circumstances as they reasonably appeared to the actor at the time (1) no reasonably effective alternative to the use of force appeared to exist and (2) the amount of force used was reasonable to effect the lawful purpose intended."
Here, the trial court gave four self-defense instructions. Instruction 23 stated, in part,
[h]omicide is justifiable when committed in the lawful defense of the defendant when . . . the defendant employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the defendant, taking into consideration all the facts and circumstances as they appeared to him at the time of and prior to the incident.Clerk's Papers (CP) at 110. This instruction adequately covers the subject of Park's proposed necessary force instruction. It directs the jury to consider the amount of force used and any alternatives, and it includes a subjective component. The trial court did not err by failing to give the necessary force instruction.
Park also argues that it was error to exclude his proposed premeditation instruction: "Premeditation is distinct from intent. It is possible to form an intent that is not premeditated." SAG at 26. The trial court declined to give this instruction, stating that it was repetitive because the second degree murder instruction effectively described an act that requires intent but not premeditation. Because the difference between premeditation and intent was adequately addressed elsewhere in the instructions, the trial court did not err by failing to give Park's requested instruction.
The second degree murder instruction stated, "A person commits the crime of murder in the second degree when with intent to cause the death of another person but without premeditation, he causes the death of such person unless the killing is justifiable." CP at 101.
Park argues that there is insufficient evidence to prove intent and the absence of self defense beyond a reasonable doubt. We disagree.
Park first argues that there is insufficient evidence to prove that he acted with intent. His argument fails. A person is guilty of first degree murder when "[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person." RCW 9A.32.030(1)(a). A person acts with intent when he acts with the objective or purpose to accomplish a result that constitutes a crime. RCW 9A.08.010(1)(a). Specific criminal intent may be inferred from the defendant's conduct where it is plainly indicated as a matter of logical probability. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
There is sufficient evidence to prove that Park acted with intent. He retrieved a knife from another room and stabbed Gemar multiple times while he was sitting quietly on the bed. Although he did call the police, he did not report that Gemar had been injured, and he attempted to cover up the stabbing. Park contends that he would have used a large knife if he had wanted to kill Gemar, not the small paring knife he says that he used. However, the weapon was never found, and the medical examiner testified that he could not say for certain what type of knife caused the wounds. The only evidence that Park used a small knife is his own testimony. Park also contends that he told Wade and Jorgenson to follow Gemar, and that this evidences his concern for Gemar's safety, but Wade testified that Park told him to leave and did not mention Gemar.
Park also argues that the jury should have been instructed that "some time must elapse sufficient to form intent" and that there was not sufficient time for him to form intent here. SAG at 27. His argument fails because time did elapse in this case—Wade testified that he and Park were in the kitchen for a couple of minutes before Park returned to the bedroom.
Park next argues that there is insufficient evidence to prove the absence of self defense. This argument also fails. Homicide is justifiable when committed in the lawful defense of the defendant if the defendant reasonably believes that he is in imminent danger of great personal injury or he is resisting an attempt to commit a felony. RCW 9A.16.050.
Park argues that his use of force was justified because Gemar committed robbery and burglary. A person commits robbery if he unlawfully takes personal property from the person of another or in that person's presence and against his will by the use or threatened use of force. RCW 9A.56.190. Gemar did not commit robbery. Although he repeatedly asked Park for drugs, there is no testimony that he attempted to forcefully take the drugs, or any other property, from Park. Additionally, Gemar did not commit burglary. In order to commit burglary, a person must enter or remain unlawfully in a building. RCW 9A.52.020, .030. Gemar did not enter or remain unlawfully in Park's house. Samuels testified that Gemar called before he arrived at Park's house. She said that Park and Gemar appeared to be on good terms when Gemar arrived. None of the witnesses testified that Park asked Gemar to leave at any point. Gemar did not commit a felony justifying Park's use of force.
Further, a reasonable person in Park's situation would not reasonably believe that it was necessary to stab Gemar. Although Gemar had pinned Park down and head butted him earlier in the evening, Gemar was sitting quietly on the bed, unarmed, at the time of the stabbing. At that point, he was not threatening imminent personal injury. Even considering Gemar's earlier physical contact with Park, Park's use of force in response went beyond what a reasonable person would believe was necessary in that situation. There is sufficient evidence to prove the absence of self defense.
H. Cumulative Error
Finally, Park argues that, even if the individual errors assigned above do not require a new trial, the cumulative effect of the errors does. We may reverse a defendant's conviction when the combined effect of errors during trial effectively denied the defendant his right to a fair trial, even if each error standing alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Since we hold that no error occurred, the cumulative error doctrine does not apply.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
Penoyar, J. We concur:
Van Deren, J.