IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. THOMASDINH NEWSOME BOWMAN, Appellant. No. 73069-0-1

CO

CO UNPUBLISHED OPINION '' FILED: January 23, 2017 Verellen, C.J.

— Thomasdinh Bowman appeals his conviction for first degree murder. He argues that the State's peremptory challenge ofJuror 5, an AfricanAmerican woman, violated the equal protection clause. We conclude the trial court correctly applied the existing legal standards, and the record supports the finding of no purposeful discrimination. Bowman also argues his counsel was ineffective for deferring to the clientthe final decision whether to pursue lesser offenses. But defense counsel conferred with Bowman and agreed with the tactical decision not to pursue lesser offenses. Bowman's other issues are not compelling. His constitutional challenge to the reasonable doubt instruction has recently been rejected, and the trial court did not abuse its discretion in sustaining the State's objections to Bowman's closing arguments misstating the law and referring to facts not inevidence. However, as required by a recent decision ofour Supreme Court, the trial court should have considered his ability to pay before imposing any discretionary legal financial obligations.No. 73069-0-1/2 Therefore, we affirm Bowman's conviction and remand with instructions for the 

### trial court to conduct an on-the-record inquiry consistentwith State v. Blazina.1 FACTS Around 7:30 p.m. on August 31, 2012, witnesses heard five gunshots at the intersection of 15th Avenue N.E. and N.E. 75th Street in Seattle's Roosevelt 

### neighborhood. They heard an engine accelerate and saw a silver BMWZ4 convertible with the top down speed offsouthbound. 

### Police responded to reports of multiplegunshots and a male bleeding inside a red Subaru. The male, identified as Yancy Noll, was sitting in a normal position inthe driver's seat with his hands on the steering wheel. He had four fatal gunshots to the head. The Subaru's windows were intact, but there was glass inthe street on the 

### Subaru's driver's side. Investigators concluded the glass came fromthe shooter's car window. 

### Adescription ofthe silver BMW, a still image ofthe cartaken from a nearby surveillance video, and a sketch ofthe suspect BMWdriver based on witness 

### descriptions were released to the public. As a result of a tip, police began investigating Thomasdinh Bowman, who had a silver BMW in his driveway less than 10 blocks from the scene ofthe crime. 

### On the night of the killing, Bowman turned off his cellphone and purchased a new one that he registered using a false identity, Peter Nguyen. Using that name, Bowman called a BMW store and an auto glass company the following morning to ask about 

### having awindow replaced on his 2006 silverBMWZ4. That day, Bowman and hiswife

'182 Wn.2d 827, 832, 344 P.3d 680 (2015).No. 73069-0-1/3 drove the BMW to Portland and had the passengerwindow replaced. Bowman paid the $250 bill in cash. After the window was replaced, Bowman keptthe BMW in his garage. Between 

### September 12 and September20, 2012, Bowman spray painted the silver BMW wheels black. On September20, Bowman purchased four tires for his BMW from BigO Tires in 

### Lynnwood, paying incash. Bowman did not bring the carto the store; he only brought the wheels. The sales managerwas surprised the tires were being replaced because they were like new. Police searched Bowman's workplace and found a slide from a Glock handgun 

### inside a storage container. Forensic experts concluded the cartridge casings found at the scene ofthe shooting were fired from that particular Glock slide. Bowman's 

### workplace computer contained a collection ofdocuments relating to the investigation of 

### shootings: "Forensic Gunshot Residue Analysis," "Chemical Analysis ofFirearms, Ammunition, and Gunshot Residue," "GunshotWounds—Practical Aspects ofFirearms, Ballistics, and Forensic Techniques," "Advances in FingerprintTechnology," "Automated 

### Fingerprint Identification Systems," "Forensic Interpretation ofGlass Evidence," and 'Arrest-ProofYourself." Two more documents found on the computerwere guides to committing murder. 

### The State charged Bowman with firstdegree murder. Attrial, Bowman admitted to shooting Noll inself-defense. He testified that he cut Noll off in traffic; Noll became 

### angry, pursued Bowman, yelled a threat, and threw a waterbottle onto Bowman's car
as they drove onto the freeway. Bowman claimed he tried to get away from Noll, but Noll pursued him off the freeway and to the intersection where the shooting occurred.No. 73069-0-1/4
Bowman testified that Noll threw another bottle at his BMW that hit Bowman in the back ofthe head. Bowman claimed he saw Nollsearching for something inthe passenger 

### seat, and itwas then that Bowman pulled his Glock handgun out of his bag and shot
Noll. 

### Bowman admitted going out to dinnerwith his wifeafter killing Noll. Later that 

### night, he disassembled his handgun and disposed of the barrel because he thought it 

### could be used to linkthe gun to the killing.2 Bowman claimed he also disposed of the
bottles Noll threw at him. 

### The jury found Bowmanguilty as charged. Atsentencing, Bowman argued that the trial court should consider as mitigation that he acted in self-defense. The court 

### responded, "The jury rejected itas do I."3 The court observed that Noll had his hands on the steering wheel when he was shot. Itfurther observed that Bowman's actions 

### after the shooting were inconsistentwith a person who had justescaped serious injury by an enraged motorist, specificallygoing out to dinner and disposing of the only evidence thatwould support his version ofevents. The court imposed a sentence within the standard range. 

### Bowman's appeal primarily concerns the State's peremptory challenge of Juror 5, an African-American woman. The court beganjury selection by asking the entire panel 

### of prospective jurors whether they had a friend or close relativeaccused of a crime, "eitherrightly orwrongly."4 Juror 5 responded affirmatively. She said she had a
2Bowman testified that he kept the slide of the gun because he did not believe it could be used to match ballistic evidence to the gun. 

### 3Report ofProceedings (RP) (Jan. 2, 2015) at 42. 4RP(Nov. 18, 2014) at 58-59.No. 73069-0-1/5 50-year-old nephew in California who had been serving time since he was a teenager for murder. Juror 5 also replied that this situation would not impact her ability "tojudge this case on its merits."5 The court allowed the State and defense counsel two alternating 30-minute rounds ofquestioning. During its first round, the prosecutor asked Juror 5 her reaction when she heard Bowman's charge. Juror 5 said she did not have a strong reaction. Then the following exchange occurred: STATE: Do you believe [your nephew] was rightfully or wrongly accused? JUROR 5: That's hard because I don't know. STATE: JUROR 5:

STATE:

JUROR 5:

5 Id. at 60. Okay. I don't know that I'll ever know for sure, to believe, but I don't know for sure. know what I'd like
From knowledge ofthat situation, do you have an opinion about how thejustice system works? Not really. Because we were here inthe Northwest and it was—it was in California, so we didn't attend any ofthe trials, any ofthat. But hearing from relatives, of course you're going to get their side of it. But what it did for me was that at one time Ithought everything was black and white, and then Isee that there are gray areas, you know, because there has to be an assurance when you make a decision, you know, there has to be an assurance so you have to look at it. So forme, I'mnot sure whatkind of jurorI'dmake even 

### because Iwantto see, you know, let me see, and then let me experience this and go through the process, because even coming in saying, yeah, that's even like saying—you know, making a decision right there. But, yeah, Ihad that— that experience. I've talked to that family member and myNo. 73069-0-1/6 love goes outto him, and, of course, he was quite young. So—but Idon't knowJ® Bowman's counsel did not talk to Juror 5 during his first round ofquestioning. During the State's second round ofquestioning, the prosecutor asked Juror 5 about her 

### job. Juror 5 said she was in "administrative consulting" and self-employed.7 She explained, "Just Icall it bringing an orderout ofchaos..
. .The most recent [client] is a person who is very close to me and was in hospice at home, in-home, andjust putting 

### everythingtogetherfor her was a challenge. But it's something Ido."8 The prosecutor then asked about Juror 5's nephew in prison: STATE: Igot the impression, and tell me ifthis is correct, one ofthe things you said was "I know what I'd like to believe," which I assume you'dlike to believe thathe's innocent. JUROR 5: Exactly. STATE: Okay. But you're not sure? JUROR 5: One thing, and maybe Ishould have responded also to your first question, inthat one thing that impacted me quite a bit 

### yesterday was to put it in my head aboutthe defendant coming in innocent, not guilty, whicheverway you wantto phrase it, and inthat the reason Iraised my hand about process—you know, being a prosecutor is the challenge of maintaining—no, the defendant's attorney maintains his innocence. The onus is on you to provide evidence to—it's hard to put into words, but Iunderstood the challenge. STATE: Uh huh. JUROR 5: And that is what Ihaven'tseen inmynephew's case. I 

### haven't seen enough, you know, putting aside Forensic Files that I watch or whatever.

6\± at 112-13 (emphasis added). 7Suppl. RP (Nov. 19, 2014) at 18. 8 Id.No. 73069-0-1/7
STATE:

JUROR 5: STATE: JUROR 5: STATE: JUROR 5:

STATE:

JUROR 5: Which Ihave to tell you has nothing to do with what happens in real life. I understand that. I understand that. So... But that's what Imean, is thatthe challenge is to be sure. Uh huh. And about lifeexperience, this might seem a little asinine, but what comes to my mind is that old commercial, Apple commercial, where this person, this woman comes in with this ball of some sort andjust breaks down whatever it is that's been held in, for example, my origin to that Ishould have an attitude about life, but then there's that

-- that moment that comes where itbreaks down all of those things. You know, breaks down even traditions sometimes. So you have to be optimistic about life, be open to whatever it is that comes in front of you. And that's where you have to be unbiased. 

### So do you believe thatthere's a chance that your nephew is inprison unjustly? / don'tbelieve that. Idon't. Idon't believe that.[9] 

### The prosecuting attorney also asked Juror 5 what she meantthe priorday when she said, "I'm not sure what kind ofjuror I'd make": 

### STATE: Okay. Now, yesterday when [co-counsel] was talking to you about case proof, you said "I'm not sure I'dmake a good 

### juror." And the reason was you said "I need to see." Can you expand on that a little bitmore? JUROR 5: What did Isay? STATE: You need to see is what you said. Andjust I'm not saying 

### specifically that sentence because incontext itdoesn't make a lot of sense, but were you concerned about your ability to 

### sit? What do you think about having to see things?
]d. at 19-21 (emphasis added).No. 73069-0-1/8
JUROR 5:

STATE: JUROR 5: STATE: JUROR 5:

STATE:

JUROR 5: STATE: Well, maybe it is Ihave to believe. So that's why prosecution is so—I mean, the role of a prosecutor is so important because ithas to be enough evidence and 

### collective input inorderto make a good decision. AndI'm not sure. About what? About my ability. Ithink Ibetter be honest. Uh huh, please do. 

### Okay. Because Idid think about itlast night. The defense attorney had mentioned that. And that is because—/think 

### mynephewis a goodexample of me not being able to say, well, forsure because there are times that Isay he should be where he is if all of this is right, and then my heart says that's not what Iwould wantfor his life or anyone's life. But 

### then I've been through grief. So Iunderstand the part of a person who's lost someone. So it would be-it sounds what you're saying, Idon'twantto 

### putwords in your mouth, but that it would be difficultforyou to sit injudgment? Thank you. To make that— JUROR 5: That's correct.TM 

### During the defense's second round of questioning, Bowman's counsel addressed Juror 5 about her reluctance to sit injudgment: 

### DEFENSE: [The State] asked you whetheryou'd feel uncomfortable judging a person, and you said aftersome thoughtyes, right? JUROR 5: Yes. 

### DEFENSE: Yeah. There's no—I'mjust remembering whatyou said. Right? Is itclearto you, and this is probably the most important question, from my perspective, ofcourse, that 

### you'llhear in this whole process, do you think you are here

10 Id, at 21-22 (emphasis added).

8No. 73069-0-1/9
to judge Dinh Bowman, or do you think you're here tojudge their case?
. . . JUROR 5: Ithink I'm here to judge to the best of my ability the evidence that's presented aboutthe young man and—and to determine whether Ifeel he did it or ifthere are extenuating 

### cir—I don't know. You'd have to put it alltogether.!111 During a sidebar conference afterthe defense's second round ofquestioning, the State indicated itintended to exercise a peremptory challenge to Juror 5. Bowman's counsel responded that he needed to think about whether he would raise a Batson v. 

### Kentucky12 challenge. At a subsequent sidebar, Bowman's counsel indicated he wanted to make a record as to a Batson challenge, and the court excused thejurors. Without prompting from the court, the State setforth its reasons for requesting the challenge: She has a nephew
... in prison for murder. She would like to believe that he's innocent. Inwhich case she believes she has an innocent nephew in prison for murder. Her statement yesterday was "I'm not sure Iwould make a good juror." She said today that she wasn't sure about her ability to follow things and itwill be difficult for herto sit injudgment. She—frankly, we have found it a little hard to track what she was saying in a lot ofcases. Her sentences stopped halfway, but she talked about the old Apple commercial where a woman comes in in a ball and breaks the ball and that seemed to have nothing to do with anything. She defined herselfas being an administrative consultant, but she was not— the way she described that was that she pulls things together and puts a 

### system together, and the example she gave was helping someone who is in hospice.
. . . We are not exactly sure what she does. We have concerns about her ability to track in a whole. But the two main reasons, Your Honor, are the relationship to someone in herfamily who is in prison for murder, which is what this crime is, that she would like to believe that he's innocent. She thinks he 

### 11 Id. at 44-45 (emphasis added). 12 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).No. 73069-0-1/10 

### probably isn't, but she would like to believe that. And that means that she believes that there are innocent people in prison for murder in herfamily. The second thing is that she would find it difficult to sit injudgment, and in talking to her itwas clear, itseemed clearto us that she would be 

### probably unable to reach a verdict at all. Certainly a verdict of guilty because thatwould be sitting injudgment. And it would be sitting in 

### judgmenton someone who is charged withthe same thing her nephew is in prison for. Ithink that's far and away enough to validate the fact thatwe are not excusing her based on her race inany way, that's the bottom line question, and Iwould note that there are numerous minorities on this panel. There are one or two inthe box itself. Therefl [are] several who are 

### going to be coming up. This has nothing to do withJuror 5's race. I actually think she's a pleasant and intelligentwoman, but given her perspective on the world and criminal justice system, we cannot keep her.TM Neither defense counsel nor the trialjudge disputed the State's observation that there were other potentialjurors who were minority members; one or two were inthe 

### box already and several were in position to jointhe panel when peremptory challenges
were exercised. Defense counsel's argumentwas brief. Counsel criticized the State for 

### saying Juror 5 was not intelligent, and the trial court clarifiedthatthe State had said she
was intelligent. Defense counsel noted the Apple computer commercial Juror 5 

### referenced "wasbasically about how yourworld changes when you learnthings."14 Because Juror 5 "could be only an African-American woman even close to being seated 

### in this case has a relative who is in prison perhaps wrongfully," Bowman's counsel questioned the prosecutor's motive.

13 Suppl. RP (Nov. 19, 2014) at 66-68. 14 Id. at 69.

10No. 73069-0-1/11 The trial court noted the seriousness ofexcludingjurors based on race: 

### [l]t'sbeen particularly disturbing because
. . .there's a highpercentage of minority people that are charged with crimes and yet predominantly we have nonminorities sitting onjuries. So the Court is certainly sensitive to the issue.1151 The court also noted the distinction between whetherthe court agrees withthe State's 

### doubts about Juror 5 versus whether "the grounds that are being given are a pretext for 

### what is essentially a challenge based on race."16 The court concluded that "thereasons that have been provided bythe State
... are not racially-based and . . . they're not a 

### pretext forrace."17 It identified as the most important factor Juror 5's statementthat she would have trouble sitting injudgment ofsomebody . . . And itseems 

### to me that a completely race neutral reaction to that statementwould be 

### this is a person who mighthave difficulty finding ajudgmentof guilt against Mr. Bowman regardless of the evidence. That is a legitimate concern.[18] 

### As to the juror's feelings about her nephew, the court noted Juror 5 "never said that she 

### thoughther nephewwas innocent. She said she would like tothink he's innocent."19 The court observed that itprobably would not be as bothered by that, but "it's not a 

### pretext for racialchallenge
. . . reasonable people could differaboutwhat inferences 

### they drewfrom that statement."20 Juror 5 was excused from the jury panel.

15 JU at 70. 16 JU 17JU 18 id. at 70-71. 19 id at 71. 20 Id.

11No. 73069-0-1/12
ANALYSIS /. Batson Challenge Bowman assigns errorto the trial court's determination that the State did not engage inpurposeful discrimination. Bowman fails to demonstrate reversible error. We review Batson challenges "forclearerror, deferring to the trial court to the 

### extentthat its rulings are factual."21 "Clear error exists when the court is leftwith a definite and firm conviction that a mistake has been committed."22 The United States Supreme Court in Batson established the testto determine 

### whether a juror was peremptorily challenged pursuantto discriminatory criteria. First, 

### the defendantmust establish a prima facie case of purposefuldiscrimination;23 second, the burden shifts to the State to articulate a race-neutral explanation for challenging the 

### juror;24 and third, the trial court mustdecide whetherthe defendant has demonstrated 

### purposeful discrimination.25 The ultimate burden ofpersuasion that there has been 

### purposefuldiscrimination rests with the defendant.26 In State v. Saintcalle, our Supreme Court recognized a need to change the 

### existing Batson procedures in Washington but declined to do so on the briefing before

21 State v. Saintcalle, 178 Wn.2d 34, 41, 309 P.3d 326 (2013); accord State v. 

### Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995); Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 114 L Ed. 2d 395 (1991)). 22 Saintcalle, 178 Wn.2d at 41; accord Ass'n of Rural Residents v. Kitsap County, 141 Wn.2d 185, 196, 4 P.3d 115 (2000). 23 Batson, 476 U.S. at 93-96. 24 Id, at 97-98. 25 JU at 98. 26 Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (citing idj.

12No. 73069-0-1/13 

### it.27 The court found that "Batson
... isfailing us" because modern day racism is not 

### overt but rather is embodied in"stereotypes that are ingrained and often unconscious."28 "Unconscious stereotyping upends the Batson framework," which is "equipped to root 

### out only'purposeful discrimination, which manytrial courts probably understand to

mean conscious discrimination."29 Nonetheless, the lead opinion applied Batson, leaving itas the controlling 

### authority we mustfollow. The lead opinion confirmed the deference a reviewing court 

### must give to the trial court underthe existing Batson "purposeful discrimination" standard: A trial court's decision that a challenge is race-neutral is a factual determination based in part on the answers provided by thejuror, as well as an assessment ofthe demeanor and credibility ofthejuror and the 

### attorney. Batson, 476 U.S. at 98 n.21. The defendant carries the burden of proving purposeful discrimination, id, at 93. The trialjudge's findings are "accorded great deference on appeal" and will be upheld unless proved clearly erroneous. Hernandez [v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)]. Deference to trial court 

### findings is criticallyimportant inBatson cases because the trial court is much better positioned than an appellate courtto examine the 

### circumstances surrounding the challenge. Further, deference is important because trialjudges must have some assurance thatthe rest ofthe trial will not be an exercise infutility if itturns out an appellate court would 

### have ruled on a Batson challenge differently.1301 Underthe existing Batson standard, where the State articulates a race-neutral 

### explanation for its challenge, the trial court is not required to analyze the firststep

27 178 Wn.2d 34, 52-55, 309 P.3d 326 (2013). 28 id, at 46. 29 Id, at 48. 30 Id. at 55-56.

13No. 73069-0-1/14 

### whether the defendant established a primafaciecase ofpurposeful discrimination.31 Here, the State mentioned four grounds forchallenging Juror 5: she would not be able 

### to sit injudgmentof others; she wouldlike to believe her nephew in prison for murder is innocent and therefore believes he is innocent; itwas a "little hard to track what she was 

### saying," noting her reference to the Apple computercommercial; and the State did "not 

### feellike she was beingcompletelyforthcoming" about herjob.32 The State believed Juror 5 was "a pleasant and intelligent woman," but was concerned about "her 

### perspective on the world and criminaljusticesystem."33 The second step ofthe process does not demand an explanation that is persuasive or plausible: 

### "Atthis [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."!341 

### Bowman's argumentthat the State's proffered reasons were pretextual and mere 

### proxies for race concerns the third step, which requires the trial court to considerthe State's explanations and determine whetherthe defendant has demonstrated 

### purposeful discrimination.35 TheState's explanations "must be viewed in the totality of

31 State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (citing Hernandez, 500 U.S. at 359). 32 Suppl. RP (Nov. 19, 2014) at 66-68. 33 Id, at 68. 34 Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) 

### (alteration in original) (quoting Hernandez, 500 U.S. at 360). 35 Batson, 476 U.S. at 98; see also Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir. 

### 2009); Purkett, 514U.S. at 768 ("implausible or fantasticjustifications may (andprobably will) be found to be pretexts for purposeful discrimination").

14No. 73069-0-1/15 

### the prosecutor's comments."36 The reviewing courtconsiders the overall circumstances, including any red flags of a discriminatorymotive.37 If a State's proffered reason for striking a minority panelist appliesjust as well to
an otherwise similar nonminority panelistwho is permitted to serve, "that is evidence 

### tending toprove purposeful discrimination to be considered at Batson'sthird step."38 Here, however, there is no meaningful record ofthe makeup ofthejury panel or the 

### ultimate juryotherthan the prosecutor's mention that several members of the panel
were minorities, including "one or two in the boxitself."39 Therefore, on this record, it is not possible to conduct any comparability analysis. 

### Bowmanargues the trial court erred by accepting the prosecutor's challenge of Juror 5 based on her inability to sit injudgmentofothers. He emphasizes that Juror 5 

### repeatedly said she was capable of being ajuror, describing herselfas "analytical," not in a "rush," and that she "wouldbe as fair as Iknow how to be," and that she had no


### concern over her nephew's conviction.40 But Juror 5's exact statements about her ability to sit as a juror provided a raceneutral basis for the State a to exercise a peremptory challenge: "I'm not sure
.... 

### [ajboutmyability. IthinkIbetter be honest."41 Using her nephew as an example,
36 State v. Cook, 175 Wn. App. 36, 43, 312 P.3d 653 (2013). 

### 37 See id, at 43-44 (prosecutor's peremptory challenge based in part on defense counsel's use ofthe term "brother" when speaking to an African-Americanjuror and 

### prosecutor's purportedly "confusing" one African-Americanjurorwith another "raises a red flag thatthere is some discriminatory intent"). 38 Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005). 

### 39 Suppl. RP (Nov. 19, 2014) at 68. 40 Suppl. RP (Nov. 18, 2014) at 115. 

### 41 Suppl. RP (Nov. 19, 2014) at 21-22 (emphasis added).

15No. 73069-0-1/16 Juror 5 noted, "he should be where he is," but on the other hand, "my heart says that's 

### not what Iwould want for his life oranyone's life."42 She agreed it would be difficultfor herto sit injudgment. Therefore, the record does not support Bowman's argument. 

### Bowman also argues the State distorted Juror 5's statements about her nephew into a conclusion that she did believe her nephew was innocent. Butthe trial court 

### clearly recognized that Juror 5 had merely stated she wanted to believe her nephew

was innocent. 

### The State's other concerns relating to the ability to communicate withJuror 5 

### here do not appearto be race-based. While Juror 5's statements aboutthe Apple commercial ultimately led to a conclusion aboutthe importance of not being biased, the path to that conclusion was meandering. Thus, the State's difficulty in being able to track her responses was not a remark on her intelligence but rather her communication skills. And while the State's concern that Juror 5 was not being forthcoming about her 

### job is perhaps strained, italso suggests the State was concerned about communicating well with Juror 5. We conclude the State's concerns were not on theirface raciallymotivated observations. 

### Bowmanargues the amount of time spentquestioning Juror 5 reveals the State
was on a fishing expedition forpretextual reasons to exercise a peremptory challenge. 

### Although Saintcalle recognized that prosecutors cannot go fishing forrace-neutral

42 Id. at 22.

16No. 73069-0-1/17

reasons for using a peremptory strike and then hide behind the legitimate reasons they 

### do find,43 thatdoes not mean that merely asking follow up questions is a red flag for purposeful discrimination. Although implicit bias in jury selection of minorityjurors inthe criminal setting is problematic, Bowman does not establish thatthe trial court applied the wrong standard
or should not be entitled to deference when analyzing whetherthe State purposefully discriminated. The trial court had the opportunity to observe the prosecutors' demeanor, and there were no red flags suggesting racial motives as were present in 

### State v. Cook.44 The record supports the trial court's determination thatthe reasons offered by the State for exercising a peremptory challenge ofJuror 5 were race-neutral. //. New Standard Bowman alternatively proposes an entirely new limitation on peremptory challenges exercised by the State, to be applied retroactively to his case. Although our Supreme Court in Saintcalle advocated a change to the existing Batson procedures in 

### Washington, ithas not made any such change.45 The lead Saintcalle opinion applied 

### Batson, leaving itas the controlling authority we mustfollow.46

43Saintcalle, 178 Wn.2d at 43. 

### 44 175 Wn. App. 36, 43, 312 P.3d 653. 45 Efforts are pending to dramatically alterthe standard applied to the exercise ofperemptory challenges of minoritypanel members. We note the proposed rule would preclude the type ofopening questioning made by the court here. See 

### Proposed adoption of GR 36 cmt. 4(c), Wash. St. Reg. 16-23-014 (Nov. 2, 2016), http://lawfilesext.leg.wa.gov/law/wsr/2016/23/16-23MISC.pdf. 46 State v. Pedro, 148 Wn. App. 932, 950, 201 P.3d 398 (2009) ("It is errorforthe 

### Court ofAppeals not to follow directly controlling authority bythe Supreme Court.").

17No. 73069-0-1/18
///. Lesser Included Offenses Bowman next argues his counsel was ineffective for deferring to the clientthe decision whetherto pursue lesser offenses. We disagree. 

### We review ineffective assistance ofcounsel claims de novo.47 To prevail, a defendant must show that his counsel's performance fell below an objective standard of 

### reasonableness and thatthe deficient performance prejudiced his trial.48 The decision not to request a lesser included offense instruction is a tactical one. "Although risky, an all or nothing approach was at least conceivably a legitimate 

### strategyto secure an acquittal."49 Here, Bowman's counsel consulted with Bowman on this issue "many times indepth," advised Bowman the defense could offerthejury lesser included offense options, and acknowledged the decision not to seek lesser 

### included offenses "could be characterized easily as a tactical decision" and "I agree with it."50 Defense counsel's approach is appropriate under State v. Grier: Even where the risk is enormous and the chance ofacquittal is minimal, it is the defendant'sprerogative to take this gamble, providedherattorney 

### believes there is support for the decision.... [A] criminal defendantwho 

### genuinely believes she is innocent may prefer to avoid a compromise verdict, even when the odds are stacked against her. Thus, assuming that defense counselhas consulted with the clientinpursuing an all or nothing 

### approach, acourtshouldnotsecond-guessthatcourse ofaction.[51]

47 State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). 48 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

### (1984); State v. Nichols. 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). 49 State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260(2011). 

### 50RP(Dec. 9, 2014) at 5. 51 Grier, 171 Wn.2d at 39 (emphasis added).

18No. 73069-0-1/19 

### There is nothing in the record to suggestthat defense counsel believed Bowman's decision was unreasonable inthis case. And the fact that the strategy proved 

### unsuccessful is irrelevant because "hindsight has no place in an ineffective assistance 

### analysis."52 Defense counsel's performance here was not deficient. IV. Reasonable Doubt Instruction 

### Bowman claims the jury instruction defining"reasonable doubt" used at histrial is 

### constitutionallydefective.53 Butin Statev. Lizarraga,54 Statev. Bennett,55 and Statev. Kalebaugh,56 the use ofthe instruction has been affirmed. Because controlling authority 

### approves the use of this standard instruction, we reject Bowman's claim. V. Objections toDefense Closing Argument Bowman next claims the trial court erred in sustaining an objection to the 

### defense's closing argument that "[t]he State has theburden ofprovingbeyond a reasonable doubt that the homicide was notjustifiable. Ifyou find, and keep in mindthis 

### isallsubjective, becauseyou havetoviewthings from Mr. Bowman's standpoint."57 But

52 id, at 43. 53 See 11 Washington Practice: Pattern Jury Instructions: Criminal4.01, at 93 (4th ed. 2016). 

### 54 191 Wn. App. 530, 567, 364 P.3d810 (2015), review denied, 185Wn.2d 1022 (2016).55 161 Wn.2d 303, 318, 165 P.3d 1241 (2007). 56 183 Wn.2d 578, 585-86, 355 P.3d 253 (2015). 

### 57 RP (Dec. 9, 2014) at 104 (emphasis added).

19No. 73069-0-1/20 

### thejustifiable homicidestandard is not allsubjective.58 Becausethe defense's statementwas misleading,59 we conclude the trial court did notabuse its discretion. We also conclude the trial court did not abuse its discretion in sustaining an objection to defense counsel's closing argument about Bowman's books: So I'm going to somehow arrange for Mr. Noll to have this road rage incidentwith me. And then he's going to go on . . . and do whatthe State believes he did as a student ofmurder. The thrill kill concept makes no sense in light ofthe facts. And Idon't mean to be condescending because I'm not at all. . . . But ifwe can—ifyou can focus on the facts. The thrillkill thing makes no sense at all. If Dinh Bowman was a student of murder because he possessed this manual, and this book, he certainly did not follow the lessons, all the lessonsprescribedinthose booksJ6°i Don't do anything in broad daylight. Two, don't do anything inheavy traffic. Three, don't do anything in a 

### flashyca/".[61] Because the portions ofthose books admitted into evidence did not include the lessons defense counsel listed as "prescribed inthose books," the defense's argument 

### improperly relied on information outside the record.62 VI. DiscretionaryLegalFinancial Obligations Bowman argues that the trial court imposed $665 in discretionary legal financial 

### obligations without considering his present orfuture ability to pay. Based on our Supreme Court's recent decision inBlazina, which held that "RCW 10.01.160(3)
58 See State v. Walden. 131 Wn.2d 469, 474, 932 P.2d 1237 (1997) (the defense of 

### justifiable homicide includes both objective and subjective elements). 59 See State v. Perez-Cervantes, 141 Wn.2d 468, 474, 6 P.3d 1160 (2000) (closing 

### argument by counsel "must be restricted to the facts inevidence and the applicable law, lest thejury be confused or misled"). 60 The "books" defense counsel referenced were the two guides to committing murder found on Bowman's work computer. 

### 61 RP (Dec. 9, 2014) at 117 (emphasis added). 62See Perez-Cervantes, 141 Wn.2d at 474.

20No. 73069-0-1/21 requires the recordto reflectthat the sentencingjudge made an individualized inquiry into the defendant's current and future ability to pay before the court imposes [legal 

### financial obligations]," we agree.63 We remand for a hearing limited to this issue. VII. Cumulative Error Finally, Bowman asserts that cumulative error deprived him of a fair trial. But the cumulative error doctrine applies only when there have been several errors that standing alone, may notjustify reversal, but in combination, have the effect ofdenying the defendant a fair trial.64 Here, because Bowman has not shown several errors, the cumulative error doctrine does not apply. VIII. Statement ofAdditional Grounds Bowman filed a 41-page single-spaced pro se statementofadditional grounds. 

### Many of his challenges are to the sufficiency of the evidence and credibility claims. He ignores thatthis court reviews a sufficiency challenge viewingthe record in the light mostfavorable to the State and that credibility determinations are forthe trier offact and 

### not subjectto review.65 And when viewed in the lightmostfavorable to the State, there
was sufficient evidence to support his conviction. 

### Bowman raises several challenges to the admissibility ofevidence. Bowman 

### ignores that "[decisions involving evidentiary issues lie largelywithin the sound discretion ofthe trial court."66 He also raises several other issues related to the court's
63182 Wn.2d 827, 839, 344 P.3d 690 (2015) (emphasis added). 64 State v. Davis, 175 Wn.2d 287, 345, 290 P.3d 43 (2012). 65 State v. Green, 94 Wn.2d 216. 221. 616 P.2d 628 (1980): State v. Thomas, 150 

### Wn.2d 821, 874-75, 83 P.3d 970 (2004) (the panel defers "tothe trier of fact on issues of 

### conflicting testimony, credibility ofwitnesses, and the persuasiveness of the evidence"). 66 State v. Nava, 177 Wn. App. 272, 311 P.3d 83 (2013).

21No. 73069-0-1/22 discretionary rulings, including impeachment, lack ofproperfoundation, and relevance. But he fails to establish that any ofthe challenged rulings were unreasonable or based


### on untenable grounds.67 Bowman makes several prosecutorial misconduct claims. Prosecutorial misconduct allegations are reviewed for an abuse of discretion.68 Where a defendant 

### fails to objectto the challenged conduct, he must show thatthe conductwas so flagrant 

### and ill-intentioned that a jury instruction could not have cured any resulting prejudice.69 Bowman fails to make such a showing here. Finally, Bowman argues ineffective assistance ofcounsel, but only as a general 

### proposition.70 He thus fails to informthe court of the nature and occurrence ofcounsel's alleged errors.71 Further, he ignores that ineffective assistance claims do not relate to counsel's tactical decisions, and that this court strongly presumes counsel's conduct 

### constituted sound trial strategy.72 Further, if Bowman "wishes to raise issues on appeal that require evidence orfacts not inthe existing trial record, the appropriate means of 

### doing so is through a personal restraint petition."73

67 See Falkv.KeeneCorp.. 53 Wn. App. 238, 247, 767 P.2d 576 (1989). 68 State v. Thorqerson. 172 Wn.2d 438, 460, 258 P.3d 43 (2011). 69 State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). 70 Statement of Additional Grounds at 4 (arguing that "an [ineffective [assistance of [c]ounsel claim will be held for all issues of this case as the record should have been protected"). 

### 71 RAP 10.10(c). 72 Grier, 171 Wn.2d at 33 (quoting State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). 73 State v. McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

22No. 73069-0-1/23 Accordingly, we affirm and remand to the trial court to make an individualized finding on Bowman's ability to pay the discretionary legal financial obligations.

WE CONCUR: 

# ^Y>\M*j A^J

23