No. 55571-5-I.The Court of Appeals of Washington, Division One.
May 1, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-04490-0, Paris K. Kallas, J., entered January 7, 2006.
Affirmed by unpublished per curiam opinion.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Thomas Keita Hill (info Only) (Appearing Pro Se), 1140 18 Av 304, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
PER CURIAM.
Thomas Hill appeals his conviction of murder in the second degree, arguing that the trial court improperly instructed the jury on second degree murder, as well as on the charged crime of first degree murder. We disagree. We also reject the other contentions raised by either Hill or his attorney on appeal. Accordingly, we affirm.
FACTS
On the afternoon of February 20, 2003, Ronald Preston died after being shot seven times outside a store in Seattle. A number of individuals were in the immediate area at the time of the shooting. During the subsequent investigation, police linked Hill to the homicide. Several eyewitnesses identified Hill as the person who shot and killed Mr. Preston. Other individuals stated that they witnessed the shooter leave the scene in a vehicle similar to one owned by Hill’s brother, Carlos Hill.
Two days after Mr. Preston was killed, police attempted without success to take Hill into custody at his place of residence. Authorities later learned that Carlos Hill had taken an emergency two-week family leave from Costco where he was employed.
In November 2003, Hill was arrested in the state of Mississippi. He was eventually extradited to Washington to stand trial on charges of first degree murder and unlawful possession of a firearm in the second degree. The jury trial was held in December 2004. Nell Cole positively identified Hill as the person who shot and killed Mr. Preston. Ms. Cole testified that she was standing outside the store when she heard the first gunshot and turned to see Hill fire a gun four or more times at Mr. Preston, who had fallen to the ground. According to Ms. Cole, she was selling pants with a friend in front of the store when the shooting took place.
Andrea Robinson described a heated exchange between Mr. Preston and Hill shortly before the shooting. After Mr. Preston threatened to assault or kill him, Hill told Mr. Preston that he had “protection.” Mr. Preston said that he did not care and that Hill was a punk. Ms. Robinson and Hill then walked to a nearby store where they stayed for several minutes. Hill left the store first while Ms. Robinson remained inside for two or three additional minutes. At some point, Ms. Robinson heard numerous gunshots and returned to the store where she saw Mr. Preston lying on the ground and in serious condition. Other eyewitnesses testified about what they saw and heard. Detective Steiger testified about the efforts police undertook to find Hill, including contacting Carlos Hill’s employer. The medical examiner testified that Mr. Preston suffered seven gunshot wounds to the head, neck, trunk, and right upper extremity.
The State proposed instructing the jury on second degree murder, as well as on the charged crime of first degree murder. Hill objected to the instruction on the inferior degree offense. The trial court overruled his objection and submitted the instruction to the jury.
The jury could not reach a unanimous verdict on first degree murder. It concluded, however, that Hill was guilty of the lesser degree offense of second degree murder. The jury also found Hill guilty of unlawful possession of a firearm as charged in the second amended information. At sentencing, the trial court imposed a standard range sentence of 254 months on the murder conviction based on an offender score of two. This appeal followed.
ANALYSIS
Hill first contends that the trial court erred by instructing the jury on murder in the second degree when there was no affirmative evidence supporting an inference that he committed only that lesser degree offense. We disagree.
An instruction on a lesser degree offense is proper where: (1) the statutes for both the charged offense and the proposed lesser degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the lesser degree crime.[1] We review for abuse of discretion.[2] Hill and the State both agree that the legal prong of the test is satisfied. Second degree murder is a lesser degree offense of first degree murder and both proscribe but one offense.[3]
The issue is whether the record supports the factual prong. When determining if the evidence was sufficient to support the giving of an instruction, we view the evidence in the light most favorable to the party that requested the instruction.[4] The party requesting the instruction must point to evidence that affirmatively supports the instruction, and may not rely on the possibility that the jury would disbelieve the opposing party’s evidence.[5] An inference that only the lesser offense was committed is justified “`[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.'”[6]
The State charged Hill with first degree murder, the elements of which include (1) causing the dearth of another; (2) premeditation; and (3) intent to cause death.[7] The elements of second degree intentional murder include (1) causing the death of another; and (2) intent to cause death.[8]
Hill argues that the State did not present any evidence to support the conclusion that he shot and killed Mr. Preston but did not do so with premeditated intent to cause death. We disagree.
“Premeditation” involves a deliberate formation of and reflection upon the intent to take a human life and includes the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.[9] Factors relevant to establish premeditation include motive, procurement of a weapon, stealth, and the method of killing.[10] While there may have been a brief pause between the first and second gunshots, the gunshots all occurred in fairly rapid succession. The “mere opportunity to deliberate is not sufficient to support a finding of premeditation.”[11] No testimony was presented regarding what Hill and Mr. Preston were doing immediately before Hill shot Mr. Preston. And, while there was eyewitness testimony that Hill was standing directly over Mr. Preston when he discharged the firearm six more times, the firearm expert opined that the shooter was approximately ten feet way from Mr. Preston when he fired the fatal shots. Given these uncertainties, there was evidence from which the jury could reasonably conclude that Hill intended to kill Mr. Preston “but without premeditation” as required under the second degree murder statute.[12]
The trial court properly granted the State’s request for an instruction on second degree murder.
Hill next contends the inclusion of juvenile adjudications in his offender score violated his constitutional rights to due process and a jury trial. That contention is controlled by our decision in State v. Weber,[13] that juvenile adjudications do fall within the Apprendi[14]
and Blakely[15] prior conviction exception. Hill’s juvenile adjudications were properly included in his offender score.
Hill, pro se, also has filed a “Statement of Additional Grounds,” raising several other issues. Hill argues that his conviction should be reversed because: (1) the trial court erred by allowing Detective Steiger to testify that someone at Costco told him that Carlos Hill had taken an emergency family leave from work a few days after the shooting; (2) the trial court erred by allowing Samuel Zena to testify about a 911 call he made; (3) the prosecutor committed misconduct during closing argument; (4) a man who could not read or speak English was improperly allowed to participate in the jury pool; (5) there were no African-American or Hispanic jurors in the jury pool; and (6) he was denied his right to effective assistance of counsel. Because Hills’ last three arguments are all based on matters outside the record, we refuse to consider them.[16]
Hill also argues that he was prejudiced by the introduction of the testimony of both Detective Steiger and Samuel Zena. But Hill failed to object to the admission of their testimony at trial. Therefore, he has waived any claim that the evidence was admitted in error.[17] To the extent Hill is also challenging the admission of the 911 tape, we find no manifest abuse of discretion.[18]
Hill next challenges the following remarks the prosecutor made during closing argument:
Yes, your job is to judge the credibility of the witnesses. There is probably not one of us in this courtroom who really thinks that Nell Cole was out there selling pants to whoever was driving that car. Not probably any one of us believes that. I will ask you rhetorically does it matter? Answer no.
He contends these remarks so prejudiced him that he was denied his right to a fair trial. We disagree.
“A defendant’s right to a fair trial is denied when the prosecutor makes improper comments and there is a substantial likelihood that the comments affected the jury’s decision.”[19] Where improper argument is alleged, the defendant bears the burden of showing the impropriety of the argument as well as its prejudicial effect.[20] Alleged misconduct must be viewed “in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.”[21]
It is clear from the context of the entire argument that the prosecutor was merely attempting to focus the attention of the jury on the essential elements of the crimes charged, and was not impermissibly vouching for the credibility of Ms. Cole. As defense counsel made clear in his closing remarks, the jury was entitled to consider the false statement’s made by Ms. Cole in assessing her credibility. “When counsel does no more than argue facts in evidence and suggest reasonable inferences from that evidence, there is no misconduct.”[22] Considering the closing argument as a whole, the evidence presented at trial, and the instructions given, there was no misconduct.[23]
Hill also assets that the prosecutor misstated the facts when she argued in closing the bullets were fired from the same gun. He is wrong. The firearms expert testified that the bullets were all fired from the same gun.
AFFIRMED.
BAKER, AGID and ELLINGTON, JJ.
(1985) (`The trial court has broad discretion in administering this rule and its judgment in the balancing process will be overturned only for manifest abuse.’).
(1994).
(1978).