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

v. LOVETT JAMES CHAMBERS, Appellant. XT' No. 72093-7-1

PUBLISHED IN PART OPINION

FILED: December 19, 2016 Schindler, J. —The State charged Lovett James Chambers with murder inthe 

### second degree of Michael Travis Hood. Following a seven-weektrial, the jury convicted Chambers ofthe lesser included offense ofmanslaughter inthe first degree. Chambers contends the evidence does not supportthe decision to instructthejury on the lesser 

### included offense ofmanslaughter inthe firstdegree and the court erred in denying his motion to suppress evidence seized from his home and statements he made after his arrest. Chambers also claims he is entitled to reversal because he was denied his right 

### to counsel during the videotaped deposition of a witness and prosecutorial misconduct during closing argument denied him ofthe right to a fair trial. Viewed inthe light most favorable to the State, the evidence supports the decision to give the lesser included 

### manslaughter instruction. We concludethe court erred in denying the motion to 

### suppress evidence seized from the house. The warrantless entry and protective sweepNo. 72093-7-1/2 

### was notjustified underMaryland v. Buie, 494 U.S. 325, 110S. Ct. 1093, 108L. Ed. 2d 276 (1990), but the error was harmless beyond a reasonable doubt. Becausethe unchallenged findings supportthe conclusion thatthe police "scrupulously honored" the 

### rightto remain silent under Michigan v. Moslev. 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), and the record shows Chambers was not deprived of his right to counsel or

a fair trial, we affirm. FACTS Between 1966 and 1989, LovettJames "Cid" Chambers was convicted of several serious felonies and incarcerated inthe California State prison system and the federal 

### prison system. After his release from custody in 1989, Chambers moved to Seattle and worked inthe construction industry. Chambers laterobtained degrees incomputer science and started an IT1 business. 

### Chambers and Sara started dating in 1991 and were married in 1992.2 Chambers nevertold Sara about his felony convictions or the time he spent inprison. In 1993, Chambers and Sara purchased a house inWest Seattle. A few years later, Chambers asked Sara to buy him a Colt .45 caliber semiautomatic handgun. Sara purchased the gun for his birthday. The Colt .45 is 

### registered to Sara. Chambers routinelycarried the gun with him and would often go to the shooting range. 

### The Feedback Lounge is a bar located approximately a mile from Chambers' house inWest Seattle. Chambers went to the Feedback Lounge at leastfour to five

1Information technology. 2We refer to Sara Chambers by herfirstname forpurposes of clarity.No. 72093-7-1/3 

### times a week. Chambers would arrive between 4:00 and 4:30 p.m., sit at one end of the bar, and drink a couple of vodka martinis. 

### After a "significant snow storm", itwas cold, wet, and windy on Saturday, January 21, 2012. That afternoon, Chambers stopped at the Rocksport Bar &Grill to have a beerwith friends. Afterapproximately 45 minutes, Chambers leftand drove to the 

### Feedback Lounge. Chambers parked his blue 1998 BMW M3 facing south on California Avenue SW in front of the Beveridge Place Pub. The Feedback Lounge is located 72 feet south ofthe Beveridge Place Pub on California Avenue SW. 

### Chambers arrived at the Feedback Lounge at approximately 4:30 p.m. When the 

### bartenderarrived for her 5:00 p.m. shift,Chambers was "sitting in one of his favorite seats ... at the very end ofthe bar" drinking a vodka martini. Chambers' friend Pierre 

### Rodrick arrived at the Feedback Lounge around 8:00 p.m. Over the course ofthe next hour and a half, Chambers had two orthree more vodka martinis and a shot ofvodka. 

### Rodrick leftaround 9:30 p.m. Chambers went to the restroom before leaving the bar to drive home. 

### Forty-two-year-old Jonathan Vause and 35-year-old Michael Travis Hood were also at the Feedback Lounge that night. Vause and Hood are Caucasian males of 

### average height and weight. Vause and Hood had been good friends since 1996. Vause grew up in North Carolina and lived inTennessee and Florida. Vause moved to 

### Seattle in2010, worked as a general managerof a cafe, and lived inWest Seattle. In 2011, Hood moved to Seattle and Vause helped him find a job. Vause and Hood got togetherafterwork on Saturday, January 21. Between 5:00 and 8:30 p.m., they smoked marijuana and had a beeror two. At 8:30 p.m., they droveNo. 72093-7-1/4
to the Rocksport Bar & Grill. The barwas "packed" with "nowhere to sit." Vause and Hood leftand drove to the Feedback Lounge. Vause parked his red 1996 Ford Ranger pickup truck between a backhoe and a large van on California Avenue SW in front of Morgan Junction Park. The Rangerpointed south and the passengerdoor opened onto the sidewalk. Morgan Junction Park is a small park located 195 feet north ofthe Feedback Lounge. Vause and Hood arrived atthe Feedback Lounge at approximately 9:00 p.m. Because the barwas crowded, they went to the back area. They had a couple beers, 

### ordered some food, played PAC-MAN, and left 40 to 45 minutes later. As they were leaving, Vause noticed Chambers standing to the right ofthe front door. Chambers is a 67-year-old six-foot-three-inch-tall African American who weighed approximately 225 pounds. Vause thought Chambers worked as security for the bar. After leaving the Feedback Lounge, Vause and Hood walked north on California Avenue SWtoward the Ford Ranger. When they reached the alleyway between the Feedback Lounge and the Beverage Place Pub, Hood turned and walked down the alleyway. 

### Ilooked at Travis and told himthe truck was thatway. When he responded, kind ofwent across at an angle where he stopped and back 

### down to the cornerand back down the sidewalk, he went at an angle towards me and proceeded towards the truck as well. Because itwas cold and windy, Vause did not waitfor Hood and walked "really fast" to his truck. Vause unlocked the doors, got inthe driver's seat ofthe truck, and waited for Hood. Afull-size van parked in front ofthe truck blocked his view. Vause could see down the sidewalk "just about to the front door" ofthe Beveridge Place Pub but he did not "have a clearview allthe way down the sidewalkto the Feedback." A fewNo. 72093-7-1/5 seconds later, Vause saw Hood walking up the sidewalk and Chambers walking six to eightfeet behind Hood. When Hood reached the pickup truck, he opened the passenger-side door and then grabbed a flat-head shovel out ofthe back. Hood "pulled" the shovel "up in a batter's stance" and held it "like a baseball bat." Chambers "jumped back aboutthree steps" until he was 9 or 10 feet away from Hood. Hood yelled atVause, "[Wjatch out, he's got a gun," and immediately "spun and turned to try to get into the truck." Vause heard a shotfired and saw the flash as he got out ofthe truck and "crouched down hiding behind the bed of my truck." Chambers fired two more shots. After the gunfire stopped, Vause watched Chambers putthe gun "back inside of his jacket" and "just casually walk[ ] away" back toward the Feedback Lounge. Hood was lyingfacedown across the seat ofthe pickup truck. Vause pulled 

### Hood's legs intothe pickup, pushed the shovel handle out the door onto the sidewalk, and drove away "as quick as possible" to get medical help. Meanwhile, Chambers walked to his BMWparked in front ofthe Beveridge Place Pub and drove home. A number ofwitnesses called 911. Witnesses told Seattle Police Officer Brian 

### Koshakthe suspect "was a black male wearing bluejeans, a shiny leatherjacket, and a black beanie." An employee ofthe Feedback Lounge said "somebodythat matched 

### thatdescription [was] inthe bar" that night who "went by Cid"and drove a blue BMW M3. The employee provided Officer Koshak with a credit card receipt signed by "Lovett Chambers." Officer Koshak found three shell casings from a .45 caliber handgun, a shovel, and blood on the sidewalk near Morgan Junction Park.No. 72093-7-1/6 When paramedics responded to a nearby location, Hood was in critical condition. While medics transported Hood to Harborview Medical Center, Officer Brandon McDougald took a statementfrom Vause. Vause was "very coherent," did not smell of alcohol, and "seemed rather in shock." Hood died at Harborview from lethal gunshot wounds to his back. Seattle police arrested Chambers at his home at 10:49 p.m. OfficerAnthony 

### Belgarde read Chambers his Miranda3 rights at 10:51 p.m. Chambers smelled of alcohol. He was "swaying," had trouble balancing, slurred his words, and was argumentative. Officer Kyle Galbraith drove Chambers to the precinct. Officers obtained a warrant to search Chambers' home and seized a loaded .45 caliber handgun, a spare magazine, and the BMWkeys. The police impounded the BMW. After obtaining a blood draw from Chambers at Harborview, Detective Cloyd Steiger and Detective E. Jason Kasner advised Chambers of his Miranda rights. Chambers agreed to talk to the detectives. The recorded interview began at approximately 4:00 a.m. and lasted approximately an hour. Before the interview begins and while Chambers is alone, he shakes his head and says, "Goddamn. Fuck. Urn! Goddamn! Whatthe fuck. Goddamn!... Ah, Fuck. Whatthe fuck happened?" When the detectives enterthe room and begin the interview, Chambers says, "Tellme what happened, man." Chambers told the detectives he was at the Feedback Lounge drinking martinis from approximately 4:30 p.m. until he left at approximately 9:30 p.m. to go home. Chambers said he keeps a Colt .45 underneath the passenger seat of his BMW. He said he remembered parking the BMW in front ofthe Beveridge Place Pub that night 3Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 72093-7-1/7 

### and getting into his car to go home. ButChambers did notremember "any trouble" when he got in his car and did not know what happened. Chambers told the detectives: 

### You know, the only thing Ican think of, you know, like isthatthese guys must have or, or, whoever, whoeverwas involved, they must've, they had to have made a, a, a move ofaggression on me. 

### Chambers did not remember having the Colt .45 in his hand that night or setting it on the kitchen table when he got home. Chambers denied ever experiencing a blackout from drinking. 

### Detective Steigertold Chambers there was "no question you shot [Hood]. The only question is why you shothim." At first, Chambers said he "never had any interaction" or saw Hood that night. But later, Chambers told the detectives, "I remember now!.
. .They were fucking with me." Chambers said that "two guys" were "trailing me, you know, to my car and talking shit,
. .. calling me names and stuff.... 

### Some of itwas racial." Because Hood and Vause were trying to get into his car and "attack[ ] him," Chambers said he "pulled the gun" out and shot Hood. Chambers said he "never seen those guys before." CHAMBERS: And Iwent to get in my car, you know, like in, you know, like they tried to, you know, like get inthe carwith me. STEIGER: They tried to get inthe passenger side or...? CHAMBERS: And, and Ithink that's, that's when ithappened. STEIGER: Okay. So what happened? CHAMBERS: That, that must've been, you know, when... STEIGER: So, you pulled the gun and shot right then? CHAMBERS: Yeah. STEIGER: Were you sitting inyour carwhen ithappened?No. 72093-7-1/8

CHAMBERS: I can't remember.^' Chambers insisted "those guys attacked me right at my car." STEIGER: But, but when you say "attacked" describe theiractivities? CHAMBERS: They were trying to get into the carwith me. STEIGER: Okay. KASNER: Didthey try to get inthe passenger side, driver side? Were you inthe driver side or the passenger side? CHAMBERS: Igot into the driver side and they tried to get into the passenger side. STEIGER: But it was locked? CHAMBERS: Yeah. STEIGER: Okay. So what happened then? CHAMBERS: And Idon't remember, you know, what, Idon't remember all the events that happened afterthat. Inever seen those guys before. Detective Steigertold Chambers that he "did not fire the gun anywhere near [the] car" because the bullet casings from his gun were found on the sidewalk nextto Morgan Junction Park. Chambers said he did not remember getting out of his car and did not rememberwhat happened afterward. But Chambers said he got out of his car before the "two guys" could get in. "They opened the door and Icame out." Chambers said he could not drive away because "they were right there in my fucking car." Chambers did not see a weapon but "thoughtthey had, you know, like a weapon or something" and

•Alterations in original.

8No. 72093-7-1/9

were "upsetwith me because ofwho Iwas." Chambers told the detectives that "from that point on, Idon't remember." CHAMBERS: And you know, between the Feedback and my car, you know, these clowns were fucking with me. STEIGER: Right. CHAMBERS: And Iopened my car up and they tried to get into the car with me. STEIGER: Okay. CHAMBERS: And that, that's it. STEIGER: You don't remember grabbing your gun? CHAMBERS: Idon't rememberthat part. Afterthe interview, the police examined the BMW. The detectives did not "see 

### any signs of a disturbance" consistentwith Chambers' claim. Detective Tim Devore looked specificallyfor "signs, indications of an attackthat occurred at the passenger side of the vehicle." Detective Devore "found no scratches or rubs, marks, or fingerprints." 

### The State charged Chambers withmurderinthe second degree of Hood while armed with a .45 caliber semiautomatic handgun in violation of RCW 9A.32.050(1 )(a) and (b) and RCW 9.94A.533(3). The State alleged, inpertinent part: Thatthe defendant LOVETT JAMES CHAMBERS, AKA CIDRICK 

### MANN inKing County, Washington on January 21, 2012, while committing and attempting to committhe crime ofAssault inthe Second Degree, and in the course ofand in furtherance ofsaid crime and in the immediate 

### flighttherefrom, and with intent to cause the death ofanotherperson, did cause the death of Michael Travis Hood, a human being, who was not a 

### participant in said crime, and who died on or aboutJanuary 22, 2012. Chambers asserted a claim ofself-defense.No. 72093-7-1/10 Before trial, Chambers filed a motion to suppress the evidence seized from his house and the statements he made to Detective Steiger and Detective Kasner. The court denied the motion to suppress the evidence seized from the house. The court concluded the police "were authorized to enterthe house to conduct a protective sweep to ensure their safety." The court denied the motion to suppress the statements Chambers made to Detective Steigerand Detective Kasner. The court concluded his "right to remain silent [was] scrupulously honored" under Michigan v. Moslev, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). The seven-weekjury trial began on February 19, 2014. The State called a number ofwitnesses including Feedback Lounge employees, Vause, the medical examiner, a Washington State Patrol firearm expert, a Washington State Patrol Toxicology Laboratory forensic toxicologist, witnesses to the shooting, and Seattle police officers and detectives. The court admitted into evidence more than 200 exhibits including photographs, maps, and the interview with Chambers. The State played the hour-long videotaped interview of Chambers for thejury. 

### Feedback Lounge bartenderAlison Hill testified that "Cid"had been a regular at the bar "foryears." "[H]e would come inaround [5:00] almostevery day" and "[h]e 

### always got a vodka martini." Feedback Lounge bartender Leslie Johnston testified Chambers was "already there when Istarted my shift" at 5:00 p.m. on January 21. The last drink Johnston served Chambers was a "chilled shot of Ketel One." Johnston testified Chambers was "drinking more than usual" that night. 

### Feedback Lounge server Rebecca Davis testified Chambers was "usually there with a martini in hand" when she arrived for the 5:00 shift and he "would usually have

10No. 72093-7-1/11 

### another before he left." But on "[t]hisparticular night [Chambers] had been there for a 

### few hours, which was unusual." Davis testified she served Vause and Hoodthat night and they were "polite
.... [T]hey weren't obnoxious." Vause testified he felt no effects from the small amount ofmarijuana he smoked 

### earlier inthe evening. Vause testified he noticed Chambers "standing bythe front door" when they leftthe Feedback Lounge. After they left, Vause and Hood started walking to his truck thatwas parked near Morgan Junction Park. Vause testified they "both paused" when they reached the alleyway between the Feedback Lounge and the Beveridge Place Pub. As Vause continued walking toward the truck, Hood veered off to the leftdown the alley. Vause turned around and said, "Trav, what the hell you doing, nigga, the truck's down here." Hood "answered me, and still puzzled by it to this day, why he like stuttered; he was like oh, oh, okay. That was his answerto me." Vause said Hood "went at an angle towards

me and proceeded towards the truck as well." Vause testified their use ofthe term "nigga" was not racist. Q Okay. And why do you say you call each other nigga and not nigger? Explain thatto us. What's the difference inyourmind between nigga and nigger? A A nigga to me is my home boy, my friend, my acquaintance, someone associated with me. You know, that's — it's no different than my dude or my home boy or saying different, same exact meaning. Q How about the word nigger? A That's not a cool word. That's a totally racially motivated word as far as I'm concerned. Q Did Travis, when he was speaking with you, did he use the same kind oflanguage? A Absolutely. We're basically from the same area, so yeah, itwas their natural way oftalking.

11No. 72093-7-1/12 Because itwas cold and windy, Vause walked quickly to the truck and did not wait for Hood to catch up or "pay[ ] any attention" to what Hood was doing. A large utilityvan was parked infront ofthe truck and a backhoe was parked at the rear ofthe truck. The driver's side ofthe truck faced the street and the passenger side faced the sidewalk infront of Morgan Junction Park. Vause saw Hood walking up the sidewalk and then Chambers "came into the view, but he was behind a littleways. He was a good six feet, maybe potentially eight feet behind" Hood. Vause said Hood was "walking his normal.
. . strolled slow style." Vause testified thatwhen Hood was about eightfeet away from the truck, he looked over his shoulder and said something to Chambers—"[Hood] looked over his left shoulder, and Isaw his mouth move, but Ididn't hear what was said." Vause testified Hood did not appear angry. 

### No negativity. Ididn't see any type oftension, or again byTravis being so nonchalanttojustcasually lookover his shoulder andjust keep proceeding to the truck, Ifigured — well, obviously Iwouldn'tturn my back to somebody Iwas talking trash to. Who does that? 

### . . . [A]s far as the body language, the fact that he was talking facing me and talking to somebody behind him and not worried aboutthat person behind him made me feel like there wasn't anything to be worried about by what he was saying. 

### Vause said Hood walked to the passenger side ofthe truck and pulled the door 

### open. Because of the recent snowstorm, Vause had a 4-foot-10-inch flathead shovel in the back of his truck. Hood grabbed the shovel from the truck and "held it in
... a righthanded batter's stance" with his left shoulderfacing Chambers. Vause testified Hood 

### said something to Chambers like, "[W]hatare you trying to do now?" or "back up off me,

12No. 72093-7-1/13 motherfucker." But Hood did not advance or swing the shovel at Chambers. Chambersjumped back 9 to 10 feet away from Hood. Hood then yelled atVause, "[NJigga, watch out, he's got a gun," and Hood "pretty muchjust spun and turned to try to get into the truck." Vause "sawthe first flash from the first gun fire." When [Hood] said, watch out, nigga, he's got a gun, as fast as that sentence was finished, the firstflash rang out, and Iwas in motions of going out. Ijust saw out of my right peripheral the flash from the first gun fire. 

### Vause "jumped out the driver's door and dove behind the

— Istayed down below 

### the bed of my truck hiding." Vause said he was "[d]irectly inthe path ofthe bullets" and

as he dove behind the truck, he heard Chambers fire two more shots. 

### After "the gun fire stopped," Vause "st[u]ck [his] head back up" and saw Chambers putthe gun inside hisjacketand "casuallywalk[ ] away" backtoward the Feedback Lounge. Hood was facedown on the passenger seatofthe truck and "[t]here was blood all
over." 

### When Istood up, [Hood] had fell inside ofthe truck, kind of like he got his left leg on the seat and the hind cheekwas landed on the seat, and then he kind of fell across the seat, where basically his face is where my behind 

### would be sitting on the driver's side.
. . .There was blood allover inside my truck. There was blood spattereverywhere. 

### Vause lifted Hood up. Hood was stillconscious. Vause asked Hood what 

### happened. "I lifted him up and Isaid — the first thing out of my mouth was likewhat the 

### fuckjusthappened, what the fuck was that?" Hood said, "I don't know." Hood said, "I

13No. 72093-7-1/14 

### don'tthink I'm going to make it." Vause pulled Hood's legs into the truck and pushed the shovel out ofthe truck so he could close the door and get medical help. Ipulled his legs into the truck, both ofthem. One leg was still out. One was in. One was out, and he was laying face down. Ipushed him back up where he was facing forward and tried to grab the door, didn't realize I 

### was trying to close his leg inthe door, Ithought, so Igetthe other leg brought in, and then I'm still trying to shutthis door, and itwon't close on me, and I'mkind of trippin', why is this not closing? Ilooked. The handle ofthe shovel had fell inside there. Icouldn't get it to close, so Ipushed the shovel; Ipushed the shovel handle out andjust shutthe door and made a U-turn. Ithought Iwas taking him to the hospital. Vause did notwant to delay by calling 911. A The decision [not to call 911] was my friend Ifelt sure was fixing to die, but Ididn't want to die too. Q What do you mean by that? 

### A The way the man glared at me in my eyes when Irose up from behind that truck put a fear in me that Iwas ready to go. Q Did you believe that you might be shottoo? A Absolutely. Q So what did you do? A Ihauled

— Imade a U-turn in my truck and got away from there as 

### quick as possible and went straightto what Ithoughtwas the hospital, and but laterfound out itwasn't a hospital. Vause testified he did not know what happened between Hood and Chambers 

### before Hoodgrabbed the shovel from the back of the truck and confronted Chambers. 

### King County Medical Examiner Dr. Micheline Lubin testified that Hood died of "[mjultiple gunshotwounds." There was a gunshotto his chest, one in his upper back, and one in his lower back. Dr. Lubin could not determine the orderofthe gunshots fired 

### at Hood. But the gunshotwound to the chestwas at such a "shallow angle" that it"did 

### notenterthe cavity of the bodywhatsoever." Dr. Lubin testified that when the gunshot to the chestoccurred, Hoodwas at an "angle position" and "not facing the shooter." 

### The bullet "basicallytunneled underneath the skin and rightabove the ribcage" until it

14No. 72093-7-1/15 exited the leftside of his chest and passed through his upper leftarm. Dr. Lubin testified the gunshotto Hood's upper left arm was "not a lethal wound" but "would hurt a 

### lot, and you basically wouldn't have any powerto that arm because you've injured your triceps muscle." According to Dr. Lubin, itwould have been "difficult" for Hood to hold anything "because you've effectively injured a muscle that allows you to lift and move your arm." Dr. Lubin testified the two shots thatwere "straight on from the back" and exited through the front of Hood's body were lethal. The shotto his lower back "lacerated the liver and caused bleeding on the capsule." The shotto his upper backwas a "grave wound" that "lacerated" a major heart vessel. Washington State Patrol firearm expert Kathy Geil testified the .45 caliberColt
was a semiautomatic handgun and "[y]ou need to pull the trigger" to fire each shot. Each trigger pull required four pounds of pressure. Washington State Patrol toxicologistAsa Louis analyzed the blood sample drawn from Chambers at approximately 3:30 a.m. on January 22. Louis testified Chambers' blood alcohol concentration (BAC) was approximately .20 grams per 100 milliliters, or the equivalent of "8.7 drinks in [his] system" at the time ofthe blood draw. Louis estimated Chambers' BAC would have peaked around midnight at approximately .25, or the equivalent of"10.8 drinks inthe system." Louis testified that alcohol is a "central


### nervous system depressant[ ]" that "slows down the functionality ofthe brain." The State presented the testimony ofeyewitness Brian Knight through a videotaped deposition. Knight testified that he and several friends arrived atthe 

### Beverage Place Pub between 8:30 and 9:00 p.m. The group sat at a table

15No. 72093-7-1/16 

### approximately 10feet from the front door of the pub. Thirty minutes later, Knightwent outside to smoke a cigarette and walked about 20 feet north to the side of the building facing Morgan Junction Park. Knighttestified that he noticed "a red Ford Ranger.
.. pointed towards me withthe dooropen ... [on the] [p]assenger's side." Knight could
not see the driver's side ofthe truck because a van blocked his view. Knight "heard a commotion" and voices but he "couldn't make outwhat was 

### said." Knightsaid he saw a black male wearing a beanie and a darkjacket standing on the sidewalk parallel to the truck "pointed towards the door." The man "whip[ped] out a pistol" and fired "a bunch of shots . . . into the truck." The man then turned and walked 

### toward the Beveridge Place Pub. Knighttestified the man was "pretty relaxed for a person [who]just shot someone." Knighttestified that he did not see or hear anything unusual happening on the sidewalk nearthe BMWbefore the shooting. Knight signaled his friend Alex Rivet to come outside. Rivet saw a black male put a gun into his jacket and walkto a blue BMWparked infront ofthe Beveridge Place Pub. Knight and Rivet sawthe man get into the BMW, look at his cell phone, and then drive away. Knight walked to the location ofthe shooting and saw bullet casings and blood on the sidewalk. Rivet called 911 to report the shooting and the license plate number ofthe BMW. Rivettestified thatwhile he was inthe Beveridge Place Pub, he heard "loud clapping" noises that sounded likegunfire. Rivet said there were quick "pauses" between the clapping noises. Joel Vandenbrink was driving north on California Avenue SW between 9:30 and 9:45 p.m. Vandenbrinktestified he heard a "noise that got [his] attention" on the west

16No. 72093-7-1/17 

### side ofCaliforniaAvenue SW. Vandenbrink testified that he saw a "fairlytall" individual wearing "dark clothes" fire several gunshots into a pickup truck. Feedback Lounge General Manager Gianatta Griffitstestified that while she was 

### smoking a cigarette inthe alley between the Feedback Lounge and the Beverage Place Pub, she heard what she thoughtwere gunshots. Griffitsstated she did not see anything "out ofthe ordinary" before the gunshots. A number ofwitnesses testified on behalfofthe defense including Chambers, his friend Pierre Rodrick, and forensic psychologist Dr. Mark Cunningham. Chambers admitted he shot Hood "outside the Morgan Junction Park." Chambers testified Hood "told me he was going to kill me." Chambers said Hood had a shovel and "I thought he was going to kill me." Chambers testified that he shot Hood to "save my life." Chambers did not remember "exactly how many martinis" he drank at the Feedback Lounge on January 21, 2012. But Chambers admitted he "consumed way past my limit" and "was feeling it." Chambers said he did not see eitherVause or Hood while he was atthe Feedback Lounge. Chambers said he had never seen Hood before
and did not know his name. Chambers testified that after he left the bar, he walked north to his car. As he passed the alleyway between the Feedback Lounge and the Beverage Place Pub, Chambers heard two men talking behind him. Chambers said the two men had Southern accents and made racial slurs such as "look at that niggerthere, look atthe 

### way he's walking. His mammy must have taught him how to walk like that." Chambers

17No. 72093-7-1/18 

### testified he was not angry and "assumed thatthey were drunk." Chambers said he walked out onto California Avenue SWto get in his car. 

### Chambers testified that after he got into his car, one ofthe men "yanked open" the passenger-side door and "looked as though he was poised to come into the car." 

### Chambers said the man "made a motion to go to his waistband, and itappeared as though he had what Ithought was a knife." Chambers said he reached over and pulled the door shut, then reached underthe passenger seatto retrieve his .45 caliberColt. Chambers testified the other man "came up and was banging on the back ofthe trunk lid." Chambers said he tried to "get away" but he panicked and "twisted the ignition too hard," causing the antitheft system to preventthe doors from locking and the carfrom starting. Chambers decided to "get out ofthe car and try to move further down California Avenue where itwas more light." Chambers testified thatwhen he got out of his car, he could not see the man he thought had a knife. "The only person Icould see was the person that had been banging on the rear deck ofthe trunk," who "had moved away to the curb" and was making "racist comments." Chambers testified he did not go into the Beveridge Place Pub or backto the Feedback Lounge for help because "that's the last place Isaw the guy, you know, withthe knife was there on the passenger side of my car." Chambers said he "easfed] down the driver's side towards the rear" ofthe BMW and walked toward Morgan Junction Park "to get into a better litarea." Chambers testified he walked on the west side ofthe sidewalk "up nearthe park" so he could "see all around me." Chambers said the man was "parallel" to him walking up the curb-side ofthe sidewalk. Chambers testified that every time he looked around for the man he

18No. 72093-7-1/19 

### thought had a knife,the man on the curb would "start hollering"racist comments to "get my attention and distract me." Chambertestified thatthe man on the curb "suddenly sprinted forward" to a red truck and pulled out a shovel. Chambers said the man "spun around at me and he had the shovel up, you know, like a batter," and "came towards" him and said, "[N]ow I'm going to knock your nigger head off." Chambers "believed that he was going to kill me." Chambers testified that he did not remember pulling out or firing his gun and did not remember how many times he shot Hood. The next thing Chambers remembered was being home when the police arrived. Chambers testified he did not tell Detective Steiger and Detective Kasnerthe truth because he did not to trustthe police. Chambers described the abuse he suffered while he was in custody at the Indiana Boys' School and his exposure to violence while in prison from 1966 until 1989. Clinical and forensic psychologist Dr. Mark Cunningham testified on behalfofthe defense. Based on his interview with Chambers, Dr. Cunningham described the "traumatic experiences" Chambers had with police and law enforcementofficials during his youth and exposure to violence during his incarceration atthe Los Angeles County Jail, the California Department ofCorrections, and the Federal Bureau ofPrisons. 

### Dr. Cunningham testified these "experiences and exposures resulted in posttraumatic stress disorder... in Cid, as well as deep-seated distrust of law enforcement and the correctional system." Dr. Cunningham testified that "it is not 

### surprising, given his priorexposures to lawenforcementand correctional officers, Cid would respond evasively when interrogated."

19No. 72093-7-1/20 Dr. Cunningham testified that "ifthe shooting occurred as Cid Chambers described," Chambers would have believed he was in imminentdanger ofdeath when he shot Hood, and "[t]histendency would be increased by thejudgment impairments associated with intoxication." Ibelieve, to a reasonable psychological certainty, that Cid's posttraumatic stress disorder and the actions of Michael Travis Hood and Jonathan Vause could have caused Cid to believe he was in imminent danger of death or great personal injury when he shot Mr. Hood. Dr. Cunningham conceded his opinion was contingent on the accuracy ofwhat Chambers told him. Dr. Cunningham testified posttraumatic stress disorderdid not
excuse the shooting or mean Chambers did not know what he was doing that night. "I 

### believe thatto the bestof my knowledge he knew what he was doing." Dr. Cunningham testified that Chambers' "ability to think quickly and clearly that night was affected by alcohol." Dr. Cunningham testified Chambers was not delusional but "certainly paranoid" and "exhibits the symptoms ofparanoia." Atthe conclusion ofthe evidence, the State requested the court instructthejury


### on the lesser included offense ofmanslaughter inthe firstdegree. The defense objected to giving a manslaughter instruction. The defense argued there was no 

### evidence Chambers acted recklessly when he shot and killed Hood inself-defense. The court ruled the evidence supported giving the lesser included manslaughter 

### instruction. "[A]jury could find that he acted inself-defense, but because he firedthree shots thatwas more force than is necessary and he acted recklessly." 

### The court instructed thejury to considerthe lesser included offense of 

### manslaughter in the firstdegree ifthey did not find beyond a reasonable doubt that

20No. 72093-7-1/21 Chambers committed murder inthe second degree. Jury instruction 14 states: The defendant is charged with Murder inthe Second Degree. If, afterfull and careful deliberation on this charge, you are not satisfied 

### beyond a reasonable doubtthatthe defendant is guilty, then you will considerwhetherthe defendant is guilty ofthe lesser crime of 

### Manslaughter inthe First Degree. When a crime has been proved against a person, and there exists a reasonable doubt as to which of two or more 

### degrees thatperson isguilty, he or she shall be convicted only of the lowest degree. 

### The jury found Chambers guilty ofmanslaughter in the firstdegree. Byspecial 

### verdict, the jury found Chambers was armed with a firearm at the time he committed the crime. The court imposed the low-endstandard range sentence of 78 months plus the mandatory consecutive 60-month firearm enhancement. ANALYSIS Instruction on Lesser Included Offense of Manslaughter 

### Chambers contends the evidence does not supportthe decision to instruct the 

### jury on the lesserincluded offense ofmanslaughterin the first degree. Under RCW 10.61.006, a defendant "may be found guilty of an offense the 

### commission of which is necessarily includedwithin that with which he orshe ischarged inthe indictment or information." Eitherthe prosecutoror the defense can request a lesser included offense instruction. State v. Tamalini, 134 Wn.2d 725, 728, 953 P.2d 450 (1998). 

### Aparty isentitled to ajury instruction on a lesser offenseif(1) the elements of the lesser included offense are a necessary elementof the charged offense and (2) the 

### evidence supports an inference that the lesseroffense was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).

21No. 72093-7-1/22 

### Here, the legal prong ofthe Workman test is met. The elements ofmanslaughter inthe firstdegree are a necessary element ofintentional murder inthe second degree. State v. Berlin, 133 Wn.2d 541, 550-51, 947 P.2d 700 (1997); see ajso State v. Condon, 182 Wn.2d 307, 317-18, 343 P.3d 357 (2015). We review the trial court's decision regarding the factual prong ofthe Workman rule for abuse of discretion. State v. Henderson, 182 Wn.2d 734, 743, 344 P.3d 1207 

### (2015). Under the factual prong, "the courtasks whetherthe evidence presented in the
case supports an inference that only the lesser offense was committed, to the exclusion 

### of the greater, charged offense." Condon, 182 Wn.2d at 316.5 The evidence must "affirmatively establish" the commission of the lesser offense; "it is notenough that the 

### jury mightdisbelieve the evidence pointing toguilt." Statev. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000). "Ifa jury could rationally find a defendantguilty of the lesseroffense and notthe greateroffense, thejurymustbe instructed on the lesser offense." Henderson. 182Wn.2d at 736. Indetermining whetherthe evidence supports

an inference that the lesser crime was committed, we review the evidence inthe light 

### most favorable to the party requesting the instruction. Fernandez-Medina, 141 Wn.2d

at 455-56. 

### Murder in the second degree requires proof that Chambers acted with the intent to cause the death of Hood. RCW 9A.32.050(1)(a). "Aperson acts with intentor 

### intentionallywhen he or she acts with the objective or purpose toaccomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). Manslaughterinthe firstdegree

5Emphasis in original.

22No. 72093-7-1/23 

### requires proofthat Chambers recklessly caused the death of Hood. RCW 9A.32.060(1)(a). Aperson is reckless or acts recklessly when he or she knows ofand 

### disregards a substantial riskthat a wrongful act may occurand his or her disregard ofsuch substantial risk is a gross deviation from conductthat a reasonable person would exercise in the same situation. RCW9A.08.010(1)(c). Unlike in State v. Perez-Cervantes. 141 Wn.2d 468, 481-82, 6 P.3d 1160 (2000), affirmative evidence establishes commission ofthe lesser included offense. Viewed in the light most favorable to the State, the evidence shows Chambers committed the lesser included offense ofmanslaughter inthe first degree. As in State v. Schaffer, 135 Wn.2d 355, 357-58, 957 P.2d 214 (1998), the evidence supports the reasonable inference that Chambers believed he was in imminentdanger and acted in self-defense but did so recklessly or negligently by using more force than necessary. In Schaffer, Schaffer and the victim argued. Schaffer. 135 Wn.2d at 357. During the argument, the victim threatened to kill Schaffer. Schaffer. 135 Wn.2d at 357. When the victim "moved his arm toward his back, Schafferthought he was reaching for a gun." Schaffer. 135 Wn.2d at 357. Schaffer shotthe victim five times, two times in the back 

### and three times inthe legs. Schaffer. 135 Wn.2d at 357. The State charged Schaffer with premeditated murder. The trial court instructed thejury on self-defense but refused 

### to instructthejury on the lesser included offense ofmanslaughter inthe firstdegree. Schaffer, 135 Wn.2d at 357. The Supreme Court reversed and remanded for a new trial. Schaffer, 135 Wn.2d at 359. The court held the trial courterred in refusing to 

### instruct thejury on the lesser included offense ofmanslaughter inthe firstdegree. Schaffer, 135 Wn.2d at 359. The court concluded the evidence showed Schaffer acted

23No. 72093-7-1/24 

### in self-defense, butshooting thevictim "fivetimesincluding twice in the back" showed herecklessly ornegligently used excessive force to repel the danger he perceived. Schaffer, 135 Wn.2d at 358. 

### [A] defendant who reasonably believes he isin imminentdanger and needs to act in self-defense, "but recklessly or negligentlyused more force than was necessary to repel the attack," is entitled to an instruction on manslaughter. 

### Schaffer. 135 Wn.2d at 358 (quoting State v. Jones. 95 Wn.2d 616, 623, 628 P.2d 472 (1981)). 

### Here, a jury could reasonably findChambers recklessly or negligently used more force than necessary. Chambers was standing 6 to 8 feet away from Hood when Hood reached the pickup truck, grabbed the 4-foot-10-inch shovel from the back ofthe truck, 

### and held it in a "batter's stance." Chambers testified that he believed Hoodwas "going

to kill me." Vause testified that after Hood grabbed the shovel, Chambersjumped back and

was standing approximately 9 to 10 feet away from Hood. Vause testified that Hood did not advance or swing the shovel at Chambers. When Chambers pulled out a gun and pointed itat Hood, Hood yelled atVause, "[W]atch out, he's got a gun." Vause testified that as Hood "spun and turned to try to get into the truck," Vause saw the flash from the first shot. The testimony ofthe medical examinerestablished the gunshot wound to Hood's chest occurred when Hood was standing at an "angle position" and "notfacing the shooter." The medical examiner testified the bullet to the chest exited the left side of his chest, passed through his upper left arm, and was notfatal. After that shot, Hood "wouldn't have any powerto that arm" and it would have been "difficult" for Hood to hold

24No. 72093-7-1/25 

### anything. Yet, afterfiringthe first shotthatwentthrough Hood's arm, Chambers fired two lethal shots directly into Hood's back. Each shot required a separate pull ofthe trigger.A jury could reasonably find Chambers acted recklessly or negligently by firing the two fatal shots directly into Hood's back after he turned away and could no longer hold the shovel. The court did not abuse its discretion indeciding to instructthejury on the lesser included offense ofmanslaughter inthe first degree. Motion to Suppress Evidence Seized from the House Chambers contends the court erred in denying his motion to suppress the evidence the police seized from his house: the Colt .45, a magazine clip with .45 caliber bullets, and the keys to the BMW. The Fourth Amendment to the United States Constitution and article I, section 7 ofthe Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates that one ofthe narrow exceptions to the warrant requirement applies. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Garvin, 166Wn.2d 242, 249, 207 P.3d 1266 (2009); State v. Hendrickson, 129 Wn.2d 61, 70-71, 917 P.2d 563 (1996). 

### One recognized exception to the warrant requirement is a "protective sweep" of the home. Maryland v. Buie, 494 U.S. 325, 327, 334, 110 S. Ct. 1093, 108 L. Ed. 2d 

### 276 (1990).6 The Supreme Court describes a "protective sweep" as a limitedcursory

6Because Chambers does not argue a different analysis applies underthe state constitution, we address only the federal constitutional analysis. See State v. Reichenbach, 153Wn.2d 126, 131 n.1, 101 P.3d 80 (2004).

25No. 72093-7-1/26 search incidentto arrest and conducted to protectthe safety ofpolice officers or others. Buie, 494 U.S. at 327. A "protective sweep" is a quick and limited search ofpremises, incidentto an arrest and conducted to protectthe safety ofpolice officers or others. It is narrowly confined to a cursory visual inspection ofthose places in which a person might be hiding. Buie, 494 U.S. at 327. The Court identifies two different circumstances thatjustify a protective sweep. The Court held incidentto the arrest of a suspect in his home, "as a precautionary matter and without probable cause or reasonable suspicion," the police could "look in 

### closets and other spaces immediately adjoining the place ofarrestfrom which an attack could be immediately launched." Buie, 494 U.S. at 330, 334. Butthe Court cautions 

### the protective sweep does not amountto "afull search of the premises." Buie, 494 U.S. at 335. The second type ofprotective sweep requires "articulable facts" to supportthe 

### presence ofanother person who mightpose a threatto the police. Buie, 494 U.S. at
334. 

### Beyond that, however, we holdthatthere must be articulablefacts which, taken togetherwiththe rational inferences from those facts, would warrant 

### a reasonably prudent officer in believing thatthe area to be swept harbors an individual posing a dangerto those on the arrest scene. Buie, 494 U.S. at 334. 

### We review denial of a motion to suppress to determine whether substantial 

### evidence supports the findings of fact and whetherthe findings supportthe conclusions of law. Garvin, 166Wn.2d at 249. Where, as here, findings offact are not challenged,


### we treatthe findings as verities on appeal. State v. Lew, 156 Wn.2d 709, 733, 132 

### P.3d 1076 (2006). We review the conclusions of law de novo. Lew, 156Wn.2d at 733.

26No. 72093-7-1/27 

### The unchallenged findings establish that approximately an hour afterthe shooting, the police arrested Chambers at his home inWest Seattle at 10:49 p.m. The front door ofthe small one-story house "opens onto a small uncovered front porch." When the police officer knocked, Chambers "opened the door and stepped out onto the porch." The police immediately took Chambers "into custody, handcuffed [him], and patted [him] down for weapons." The police escorted Chambers "down the porch stairs and seated [him] on the front bumper of a police car." After his arrest, the front door remained open and the police could see a woman, later identified as Sara Chambers, inthe living room. "The front door ofthe house opens directly into the living room ofthe house.
. .. The entry to the kitchen is approximately 20 feet from the front door." At leastfour police officers entered the house to perform "a cursory sweep for other suspects." Inthe kitchen, Officer Marie Gochnour saw "a .45 caliber handgun, car keys, [and] a bullet magazine" on a table. After obtaining a search warrant, the police seized the gun, the magazine clip, and the keys to the BMW. The court denied the motion to suppress. The court relied on a footnote in State

v. Hopkins, 113 Wn. App. 954, 959 n.3, 55 P.3d 691 (2002), to conclude Buie allowed the police to conduct a protective sweep incidentto arrest "when a suspect is arrested just outside his home." The Buie rule has been extended to include protective sweeps within a suspect's home when a suspect is arrestedjust outside his home. While there is no Washington authority specifically adopting this extension in 

### Washington, inState v. Hopkins the courttwice cited U.S. v. Henry, 48 F.3rd 1282, 310 U.S. App D.C. (C.A.D.C, 1995) which extended the Buie rule to allow protective sweeps of a defendant's residence when the arrest is madejust outside the suspect[']s residence.

27No. 72093-7-1/28 

### The footnote in Hopkins states, inpertinent part: Buie specifically addressed an arrest inside a person's home, but other courts have expanded its rationale to areasjust outside a residence. See United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995). Hopkins, 113 Wn. App. at 959 n.3. The court erred in concluding the police had the authority to conduct a protective sweep ofthe house incidentto arrestfor two reasons. First, a warrantless search of 

### "spaces immediately adjoining the place of arrest"7 withoutprobable cause or reasonable suspicion does not apply when the police arrest an individual outside his home. See United States v. White. 748 F.3d 507, 511-12 (3d Cir. 2014) (holding the Buie "prong 1 exception is not available where the arrest took place 'just outside the home'"); United States v. Archibald. 589 F.3d 289, 296-97 (6th Cir. 2009) (arrestjust outside threshold of front door does not meetfirst prong of Buie). Ifan individual is 

### arrestedjustoutside his home, a protective sweep " 'mustbe analyzed underthe second prong ofthe Buie analysis.'" White. 748 F.3d at 512 (quoting Sharrarv. Felsing, 128 F.3d 810, 824 (3d Cir. 1997)): see also United States v. Paopao, 469 F.3d 

### 760, 765-66 (9th Cir. 2006); United States v. Qguns, 921 F.2d 442, 446 (2d Cir. 1990). Second, the footnote in Hopkins does not supportthe court's conclusion that a 

### protective sweep incident to arrestapplies. The case cited inthe footnote in Hopkins, United States v. Henry, did not rely on the Buie exception for a protective sweep incidentto arrest. In Henry, the court relied on the exception for a protective sweep 

### where police have articulable facts that an individual poses " 'a dangertothose on the arrest scene.'" Henry, 48 F.3d at 1284 (quoting Buie, 494 U.S. at 334). In Henry, the 

### "[u]ncontroverted testimony at the suppression hearing . . . established an objective
7Buie, 494 U.S. at 334.

28No. 72093-7-1/29 

### basis forthe officers to fearfortheir safety afterthe arrest... justoutside the open 

### door" and to conduct a protective sweep ofthe apartment. Henry. 48 F.3d at 1284. Inthe alternative, the trial court concluded the police werejustified inconducting 

### a protective sweep of the kitchen becausethey had "areasonable suspicion" that "the
area to be searched may harbor an individual posing a danger." Buie also allows the police to make a search ofareas not directly adjoining 

### the place ofarrestwhen the police have a reasonable belief, based on articulable facts, which warrant a reasonably prudent officer in believing thatthe area to be searched may harbor an individual posing a dangerto those on the arrest scene.



### .... Alternatively, the officers were authorized to conductthe sweep of the kitchenbecause they had a reasonable suspicion at the time of the arrest, that Chambers or anotherperson in the house could have access 

### to the yet undiscovered weapon and pose a dangerto them. These articulable facts were a) the officers at the time of the sweep knew thatthe 

### defendantwas a suspectin a serious shooting incidentinvolving a gun; b) the officers did not know where the gun was; and c) the officers knew there was someone else in the house. 

### Tojustify a protective sweep when a suspectis arrested outside his home, there must be articulablefacts thatwarrant a police officer in believing "the area to be swept 

### harbors an individual posing a danger to those on the arrest scene." Buie. 494 U.S. at 334.8 To establish the second type of a protectivesweep isjustified, more than a 

### general suspicion ofthepossibility ofdanger isrequired. See Buie. 494U.S. at 334n.2 ("Even in high crime areas, wherethepossibilitythat anygiven individual isarmed is 

### significant,
. . .reasonable, individualized suspicion [is required] before a [protective 

### sweep] can beconducted."); United Statesv. MoranVargas. 376 F.3d 112, 116 (2d Cir. 2004) (general suspicion, "withoutmore", thatotherarmed individuals mightbein hotel room insufficienttojustifyprotective sweep); United Statesv. Taylor. 248 F.3d 506, 514

8Emphasis added.

29No. 72093-7-1/30 

### (6th Cir. 2001) (generalized suspicion thatdefendant is a drug dealer, standing alone, inadequate to justify protective sweep). The record does not supportthe conclusion that there were "articulable facts" thatthe kitchen harbored "an individual posing a danger." The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual inthe house when police arrested Chambers was his spouse Sara. "[T]he front doorwas open" afterthe arrest and "[t]he police could see" Sara was sitting on the living room couch watching television and remained inthe living

room. We conclude the undisputed facts do not supportthe warrantless entry and protective sweep ofthe kitchen under Buie and the court erred in denying the motion to
suppress. The State argues even iferror, admission ofthe gun, the magazine clip, and the BMWkeys was harmless beyond a reasonable doubt. Constitutional error is presumed prejudicial and the State bears the burden ofshowing the errorwas harmless beyond a reasonable doubt. State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990); State v. Gulov, 104Wn.2d412, 425, 705 P.2d 1182(1985). Indetermining whetherthe error 

### is harmless, "we must 'conclude beyond a reasonable doubtthatthejury verdictwould have been the same absent the error.'" State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 

### 889 (2002) (quoting Nederv. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L Ed. 2d 35 (1999)). We conclude that absent the evidence seized from the house, the overwhelming 

### untainted evidence leads to a finding of guiltbeyond a reasonable doubt and thejury

30No. 72093-7-1/31

verdict would have been the same absent the error. Chambers testified he acted in self-defense when he shot Hood with the Colt .45. Chambers admitted that he parked his BMW in front ofthe Beveridge Place Pub on January 21, that he kept a .45 caliber gun underthe passenger seat ofthe BMW, and that he used the Colt .45 to shoot Hood

near Morgan Junction Park. Motion to Suppress Interview with the Detectives Chambers contends the court erred indenying his motion to suppress the statements he made inthe interview with Detective Steiger and Detective Kasner. Chambers asserts the detectives did not "scrupulously honor" his FifthAmendment right

to remain silent. U.S. Const, amend. V. The Fifth Amendment provides, in pertinent part, "No person shall be
. .. 

### compelled inany criminal case to be a witness against himself." U.S. Const, amend. V. In Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

### (1966), the Supreme Court adopted "[procedural safeguards" to protectthe privilege and held that before questioning an individual incustody, the police must clearly inform the suspect: 

### [T]hat he has the right to remain silent, that anything he says can be used against him in a court of law,that he has the right to the presence of an 

### attorney, and that ifhe cannot afford an attorney one will be appointed for him prior to any questioning ifhe so desires. Miranda, 384 U.S. at 478-79. 

### The Court held that afterwarnings have been given, "the individual may 

### knowingly and intelligentlywaivethese rights and agree to answerquestions or make a statement." Miranda, 384 U.S. at 479. However, if a suspect incustody invokes his 

### rightto remain silent, lawenforcementofficers must cease interrogation. At that point,

31No. 72093-7-1/32 

### the suspect "has shown that he intends to exercise hisFifthAmendmentprivilege." Miranda, 384 U.S. at 473-74. "Withoutthe right to cut offquestioning, the setting of incustody interrogation operates on the individual to overcomefree choice in producing a statement afterthe privilege has been once invoked." Miranda, 384 U.S. at474. 

### InMichigan v. Moslev. 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), the 

### Courtaddressed whetherthe decision in Mirandabars police fromquestioning a suspect after invocation ofthe right to remain silent. The Court held it did not. The Miranda opinion can[not] sensibly be read to create a per se proscription ofindefinite duration upon any further questioning by any police officer on any subject, once the person incustody has indicated a desire to remain silent. Moslev, 423 U.S. at 102-03. The Courtconcludes a per se prohibition on further interrogation "would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments oftheir interests." Moslev, 423 U.S. at 102. The Court states thatthe intent of Miranda was to adopt a " 'fullyeffective means ... to notifythe person of his right ofsilence and to assure that the exercise ofthe right will be scrupulously 

### honored.'" Moslev, 423 U.S. at 1039(quoting Miranda, 384 U.S. at 479). The Court reiterates the "critical safeguard" ofMiranda is "a person's 'right to cut offquestioning.'" Moslev, 423 U.S. 103 (quoting Miranda, 384 U.S. at 474). Through the exercise of his option to terminate questioning [the suspect] can control the time atwhich questioning occurs, the subjects discussed, and the duration ofthe interrogation. The requirementthat law

9Alteration in original.

32No. 72093-7-1/33 

### enforcement authorities must respect a person's exercise ofthat option counteracts the coercive pressures ofthe custodial setting. Moslev, 423 U.S. at 103-04. Therefore, the Court holds that "the admissibility ofstatements obtained afterthe person incustody has decided to remain silent depends under Miranda on whether his 'right to cut offquestioning' was 'scrupulously honored.'" Moslev. 423 U.S. at 104 (quoting Miranda, 384 U.S. at474, 478-79). After reviewing "the circumstances leading to Mosley's confession," the Court concluded the police " 'scrupulously honored'" his " 'rightto cut offquestioning.'" Moslev, 423 U.S. at 104 (quoting Miranda, 384 U.S. at478-79, 474). The police gave Mosley "full 'Miranda warnings'... atthe very outset ofeach interrogation" and 

### "subjected him to only a briefperiod ofinitial questioning." Moslev. 423 U.S. at 106-07. After Mosley exercised his right to remain silent, the police "immediately ceased the 

### interrogation." Moslev, 423 U.S. at 104. The police resumed questioning only after "the passage of a significant period of time and the provision of a fresh set ofwarnings, and restricted the second interrogation to a crime that had notbeen a subject ofthe earlier interrogation." Moslev, 423 U.S. at 106. Bycontrast, the Courtemphasized: This is not a case . . . where the police failed to honor a decision of a person incustody to cut offquestioning, either by refusing to discontinue 

### the interrogation upon request or by persisting inrepeated efforts to wear

33No. 72093-7-1/34 

### down his resistance and make him change his mind. Moslev, 423 U.S. at 105-06.10 

### We review a trialcourt's findings of fact following a CrR 3.5 hearing for substantial evidence and review de novo whetherthe findings supportthe conclusions of law. State v. Radcliffe. 164 Wn.2d 900, 907, 194 P.3d 250 (2008); State v. Broadawav. 133Wn.2d 118, 131. 942 P.2d 363 (1997): State v. Duncan. 146Wn.2d 166, 171, 43 P.3d 513 (2002). Here, following the CrR 3.5 hearing and review ofthe videotaped interview, the trial court concluded the detectives scrupulously honored Chambers' rightto remain silent; and Chambers "knowingly, voluntarily, and intelligently waived his rights" and agreed to talk to the detectives. The conclusions of law state, in pertinent part:

.... Pursuantto Michigan v. Moslev.
. . . after a suspect asserts the right to remain silent, police may re-contact the suspectto see ifhe wants to talk ifthe original assertion ofthe right to remain silent is scrupulously honored. "Scrupulously honored" means the police must honor the request atthe time it is made and must not persist in repeated efforts to get the defendantto talk. Here, at the time the detectives initiated conversation after leaving Harborview, defendant had twice been read his Miranda rights.
. . . The defendant's statements made in the interview room are admissible because they were made voluntarily.

Based on all the circumstances, the courtfinds that the defendant's statements to detectives are admissible because his assertions of

10 Likewise, in State v. Wheeler. 108 Wn.2d 230, 238, 737 P.2d 1005 (1987), ourSupreme Court held that indetermining the validity of a waiver of a previously asserted right to remain silent, the court may consideras relevant factors: (1) [W]hetherthe right to cut offquestioning was scrupulously honored; (2) whetherthe policeengaged in further words or actions amounting to interrogation before obtaining a waiver; (3) whetherthe police engaged intactics tending to coerce the suspectto change his mind; and (4) whether the subsequentwaiverwas knowing and voluntary.

34No. 72093-7-1/35 

### his right to remain silentwere scrupulously honored and ample time 

### passed between his assertion and the police contacting him.[11] Chambers contends that contrary to Moslev. the court erred in concluding that "ample time passed" between the assertion of his FifthAmendmentright to remain silent and the questioning by detectives. Chambers asserts the time between when he made the unsolicited statement on the way to Harborview that" 'I don'twant to talk about this'" at approximately 3:07 a.m. and when Detective Steigerread Miranda rights to him and said he wanted to "hear [Chambers'] side ofthe story" at approximately 3:50 a.m. is not a significant period oftime under Mosley. Chambers also notes that unlike in 

### Moslev, police questioned himaboutthe same crime.12 But Moslev does not prescribe a bright line testto determine whetherthe right to cut offquestioning was scrupulously honored. Although the Court in Moslev states two hours was a "significant period oftime", the Court does not suggest a durational limit. Moslev, 423 U.S. at 106.13 And the federal courts do not treat the nonexclusive factors

11 The conclusions of law also state, inpertinent part:

... After reviewing the video ofthe defendant's statementto detectives inthe interview room, it is clearthatthe defendant was not coerced into speaking with detectives; there were no threats, promises, or actions on behalfofthe police to coerce the defendantto waive his rights.... The defendant's responses were controlled. He did not tell detectives anything that he did not wantto tellthem.

.... Additional indicators thatthe defendant was not coerced into speaking with detectives include: the defendant did not talk with detectives about many ofthe topics they wanted to discuss, his body language was relaxed (feet up on the table, sitting inthe chairthat he wanted). 12 Chambers cites State v. Brown, 158 Wn. App. 49, 240 P.3d 1175 (2010), to argue the detectives violated Mosley byquestioning him on the same crime. InBrown, the court relied on State v. Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177 (1991), to assert questioning on the same crime established the police did not scrupulously honorthe right to remain silent. Brown. 158 Wn. App. at 59. But inReuben, the court held thatwhere the police did not provide fresh Miranda warnings, resumed "interrogation after a very short respite", and questioned the suspecton the same crime, the court erred in finding waiverof the right to remain silent. Reuben, 62 Wn. App. at 626. 13 The cases Chambers cites do not establish a bright line rule aboutthe amountof time officers must wait before questioning a suspectafter invoking the right to silence. See State v. Elkins, 188 Wn. App. 386, 401-02, 353 P.3d 648 (2015); Brown. 158 Wn. App. at 60; Statev. Cornethan. 38 Wn. App. 231, 235, 684 P.2d 1355 (1984); State v. Vannov. 25 Wn. App. 464, 469, 610 P.2d 380 (1980).

35No. 72093-7-1/36 

### the Court considered in Moslev as dispositive. See, e.g., United States v. Schwensow, 151 F.3d 650, 659 (7th Cir. 1998); United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998); Hatlev v. Lockhart, 990 F.2d 1070, 1074 (8th Cir. 1993); United States v. Hsu, 852 F.2d 407, 410 (9th Cir.1988); Jackson v. Dugger, 837 F.2d 1469, 1471-72 (11th Cir. 1988): United States v. Smith, 608 F.2d 1011, 1014-15 (4th Cir. 1979); Wilson

v. Henderson. 584 F.2d 1185, 1188-89 (2d Cir. 1978). For example, in Hsu, the Ninth Circuit adopted an approach that considers all of the relevantfactors with no one factor dispositive. Hsu, 852 F.2d at410. Moslev envisioned an inquiry into all ofthe relevantfacts to determine whetherthe suspect's rights have been respected. Among the factors to which the Court looked in that case were the amount oftime that elapsed 

### between interrogations, the provision offresh warnings, the scope ofthe second interrogation, and the zealousness ofofficers in pursuing 

### questioning afterthe suspecthas asserted the right to silence. See Moslev. 423 U.S. at 104-06 At no time, however, did the Court 

### suggestthatthese factors were exhaustive, nor did it implythat a finding as to one ofthe enumerated factors—such as, for example, a finding that 

### only a short period of time had elapsed—would forestall the more general 

### inquiry intowhether, in view of allrelevant circumstances, the police "scrupulously honored" the right to cut offquestioning. Hsu.852F.2dat410. 

### The touchstone ofthe analysis under Moslev iswhethera "review ofthe 

### circumstances" leading up to the statements made to police showthe " 'right to cut off 

### questioning' was fully respected." Moslev. 423 U.S. at 104 (quoting Miranda. 384 U.S. at 474). 

### Here, the undisputed findings supportthe conclusion thatthe right to cut off 

### questioning was scrupulously honored. Chambers was arrested at 10:49 p.m. and advised of his Miranda rights at 10:51 p.m. Chambers stated that he understood his 

### rights. When Officer Belgarde asked Chambers ifhe wanted to speakto police,

36No. 72093-7-1/37 

### Chambers said, "[N]o." OfficerKyle Galbraith drove Chambers to the Southwest Precinct and then to Seattle Police Headquarters. "Noquestions were asked ofthe 

### defendant during the trip from his home to the precinct, from the precinct to headquarters." The police placed Chambers in an interview room at Seattle Police 

### Headquarters at approximately 12:28 a.m. "Upon entry intothe room," Chambers was "taken out ofhandcuffs" and "accepted the officer's offer of a glass ofwater." He was 

### "leftalone inthe interview room forabouttwo-and-a-halfhours." The police did notask Chambers any questions while at police headquarters. 

### Afterobtaining a warrantto draw blood, Detective Steigerand Detective Kasner drove Chambers to Harborviewfor a blood draw at 3:07 a.m. Detective Steigerand Detective Kasnerdid not ask Chambers any questions during the trip to Harborview. But on the way, Chambers made the unsolicited statementthat" 'I don't want to talk about this.'" After the blood draw, Chambers "appeared to have substantially sobered up." When they "reached the detective's car at about 3:50 a.m.", Detective Steigerread Chambers his Miranda rights again. Chambers said he understood the rights and did not invoke his right to remain silent. While driving to thejail, Detective Steigertold Chambers that he "wanted to hear [Chambers'] side ofthe story." Chambers said,

" 'Man, Idon't even rememberwhat happened. Iwasjust -1 don't know what's going

on. Idon't remember anything that happened tonight.'" When they arrived at the King Countyjail, Detective Steiger asked Chambers if he remembered what had happened that night. Chambers said he was trying to remember. Chambers then said," 'I don't know who this dude is. Do you have a

37No. 72093-7-1/38 

### picture of the dude? Ineed to see a picture of the guy.'" Detective Steigersaid that he had a picture and "asked ifthey should go backto his office and have a talk." 

### Chambers replied," 'Yeah, let's go.'" They left the jail and Detective Steigerand Detective Kasnerdrove Chambers to Seattle Police Headquarters. Beforethe recorded interview, the detectives read Chambers his Miranda rights. Chambers stated he understood his rights and agreed to talk to the detectives. Because the circumstances leading up to the interview show the police scrupulously honored Chambers' right to cut offquestioning, the court did not err in denying the motion to suppress the statements Chambers made to Detective Steiger and Detective Kasner. The record shows the police advised Chambers of his Miranda rights at 10:51 p.m. when he was arrested on January 21. Chambers stated he understood his rights and unequivocally said he did notwantto talk to the police. The record establishes the police did not "ask the defendant any questions or persist in repeated efforts to wear him down or change his mind after he invoked his rights." After he invoked his right to remain silent at 10:51 p.m. on January 21, the police did not question Chambers while at police headquarters. And while driving to Harborview to obtain a blood draw at 3:07
a.m. on January 22, the detectives did not ask Chambers any questions. Nonetheless,


### on the way to Harborview, Chambers said he did not wantto talk aboutwhat happened. While at Harborview, Chambers seemed to have "sobered up." When they left Harborview approximately 45 minutes later, Detective Steigeradvised Chambers of his 

### Miranda rights again. Chambers stated he understood his rights and did not invoke the

38No. 72093-7-1/39 

### right to remain silent. We conclude the undisputed facts supportthe conclusion thatthe right to cut offquestioning was scrupulously honored under Moslev. Because the remainder ofthis opinion has no precedential value, the panel has determined itshould not be published in accordance with RCW 2.06.040. Motion to Exclude Deposition Testimony Chambers contends he is entitled to reversal because the courterred indenying his motion to exclude the deposition testimony ofeyewitness Brian Knight on the grounds he was denied his constitutional right to counsel. The parties agreed to videotape the deposition of Knight and play the video at 

### trial. The attorney representing the King County jailobjected to removing Chambers' shackles during the deposition. The attorney argued that as a general rule, the jaildoes not remove shackles when a defendant is "outside the presence ofthejudge when it's not the actual trial." And because Chambers "is not the deponent", thejury would not 

### know he was present. The attorney pointed out Chambers was charged withmurderin 

### the second degree and booking records showed he "has a history ofescape by force and a history of kidnapping." 

### Defense counsel argued that ifChambers was "in restraints he can't review the 

### impeachment materials . . . because he is not able to move his hands more than several 

### inches awayfrom hisbody", and "[h]e's not able to take notes in a meaningfulway." But thejail sergeantconfirmedChambers would be wearing "[w]aste chains." The court ruled that Chambers could be restrained during the deposition as long

as he could take notes and consult with counsel. 

### He may be restrained ifas long as he's not restrained behind his back you can restrain him comfortably, give him a notepad, set him up so that he

39No. 72093-7-1/40 

### can take notes. But, I'm not here to overrule the safety policies of thejail. Uh, and so long as he has his Constitutional Rights, and Isuggest he does, as long as he's presentpersonally urn,then Iwill abide bythejail policies. 

### Before trial, Chambers filed a motion to exclude the deposition testimony because the restraints "impeded consultation" with his attorney and violated his constitutional right to counsel. The State filed a response to the motion to exclude. 

### Atthe hearing, defense counsel and the prosecutordisagreed aboutwhether Chambers could write and communicate with his attorney during the deposition. The defense argued the restraints prevented Chambers from writing and prevented him from speaking with his attorney without being recorded by the microphone located nearby. The prosecutordisagreed. The prosecutor stated the restraints did not prevent Chambers from writing and there were a number ofactions the defense could have taken to resolve any issue with the microphone. The only evidence presented at the hearing was a copy ofthe videotaped deposition. Chambers is not visible inthe video. The court ruled that "on this record", itcould not resolve the factual dispute about Chambers' ability to write. There is a factual dispute as to whether or not Mr. Chambers was able to write. [Defense counsel] proffers that [Chambers] could notwrite and [the prosecutor] says that itappeared that at least he could hold a tablet and I'mgoing to setthis forward but frankly that's not a factual dispute that Ican resolve on this record. The court ruled the microphone on counsel table was "inthe defense control." [The microphone] is something that is inthe defense control, the issue of the microphone and so Iconclude that when the microphone

—thatthe parties could have discussed itand they could have fixed the microphone issue atthe beginning. It's nowhere discussed on the record, and it 

### seems to me thatthey could have taken steps such as putting their hands

40No. 72093-7-1/41

overthe microphone or done any number ofthings, and thatwould have effectuated communication between Mr. Chambers and his counsel. The court denied the motion to exclude the videotaped deposition of Knight. The trial court has broad discretion regarding the admission or exclusion of evidence. State v. Swan. 114 Wn.2d 613, 658, 790 P.2d 610 (1990). Atrial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). A court abuses its discretion only when no reasonable person would take the view adopted by the trial court. State v. Atsbeha, 142Wn.2d 904, 913-14, 16 P.3d 626 (2001). The court did not abuse its discretion in ruling the record was inadequate to determine whetherthe restraints interfered with Chambers' ability to consultwith his 

### attorney during the deposition. Chambers made no offer of proof and presented no evidence to supportthe assertion that he was unable to write or communicate with his 

### attorneys. See State v. Mee Hui Kim, 134Wn. App. 27, 42-43, 139 P.3d 354 (2006) (concluding court did not abuse its discretion inruling on motion in liminewhere defendant presented no evidence to supportthe motion to exclude). And the courtdid not abuse its discretion by concluding defense counsel could 

### have resolved any concerns about the microphone located near defense counsel. See State v. Gonzates-Morales. 138 Wn.2d 374, 386, 979 P.2d 826 (1999) (no abuse of discretion where defendant controlled the ability to communicate with his attorney). 

### Chambers also claims the court erred in allowingthejail to use restraints. The trial court has broad discretion to determine what security measures are necessary. 

### State v. Damon, 144 Wn.2d 686, 691, 25 P.3d 418 (2001). Indetermining whetherthe

41No. 72093-7-1/42

use ofrestraints isjustified, the court considers a number offactors including the seriousness ofthe charge, the defendant's temperament and character, his age and physical attributes, his past record, and past attempted escapes. Damon. 144Wn.2d at 691. The record shows the court's decision to allow restraints that allowed Chambers to take notes and consultwith his attorney was not manifestly unreasonable or based on untenable grounds. Prosecutorial Misconduct Chambers contends prosecutorial misconduct during closing argument deprived him ofthe right to a fair trial. To prevail on a claim ofprosecutorial misconduct, a defendant must show the 

### prosecutor's argumentwas both improper and prejudicial. State v. Warren. 165 Wn.2d 17, 26, 195 P.3d 940 (2008). An abuse ofdiscretion standard applies to allegations of 

### prosecutorial misconduct. State v. Lindsay. 180 Wn.2d 423, 430, 326 P.3d 125 (2014). Itis improperto disparage defense counsel's role or to impugn his integrity. State v. Thorgerson. 172 Wn.2d 438, 451, 258 P.3d 43 (2011). Improper statements must 

### "fundamentally undermine defense counsel's role or integrity." Lindsay. 180Wn.2d at
433. 

### We review allegedly impropercomments inthe context ofthe entire closing 

### argument, the issues presented, the evidence addressed, and the instructions given to thejury. State v. Russell. 125Wn.2d 24, 85-86, 882 P.2d 747 (1994). The defendant must show the prosecutor's misconduct resulted in prejudice that had a substantial likelihood of affecting the jury's verdict. State v. Emery. 174Wn.2d 741, 760, 278 P.3d 

### 653 (2012). Butifthe defendantdoes not object attrial, any error is waived unless the

42No. 72093-7-1/43 prosecutorial misconduct is so flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice. Emery. 174 Wn.2d at 760-61. 

### The prosecutor "isentitled to make a fair response to the arguments ofdefense counsel" during rebuttal argument. State v. Gauthier. 189 Wn. App. 30, 37-38, 354 P.3d 900 (2015); State v. Gregory. 158 Wn.2d 759, 842, 147 P.3d 1201 (2006); Russell. 125 Wn.2d at 87. Even ifthe remarks made during rebuttal are improper, they are not grounds for reversal" 'ifthey were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or

are so prejudicial that a curative instruction would be ineffective.'" State v. Weber, 159 Wn.2d 252, 276-77, 149 P.3d 646 (2006) (quoting Russell. 125 Wn.2d at 86); Gauthier. 189 Wn. App. at 38. Chambers asserts that during rebuttal argument, the prosecutordisparaged his 

### attorney by stating the defense was "trying to panderto your prejudices" and "make it so thatyour prejudice against racism clouds yourjudgment." The remarks were a fair response to the closing argument ofdefense counsel. 

### Duringthe defense closing argument, the attorney focused on the topic of racism. The defense attorney argued Vause and Hood were racists "trying to commit a hate crime against" Chambers. Make no mistake about it. What happened outthere that night, that Mr. 

### Vause and Mr. Hood following Mr. Chambers to his car, that was a hate 

### crime. Theywere trying to commit a hate crime against him, and ifMr. Chambers hadn't defended himself, that hate crime would have been 

### completed eitheras a homicide or as a vicious beating. Andthe State 

### brought you the word of a racist to try to prove beyond a reasonable doubt that this wasn't a hate crime.

43No. 72093-7-1/44 

### The defense attorney argued use ofthe word "nigger" undermined Vause's claim that he was not a racist. Iwas certainly raised thatthe word nigger is a word with history, it's a word ofviolence, and that maybe within the African American community there's some people who think maybe the word can be used in some contexts, maybe itshouldn't; it is 2014. There is no reason any white person should be using that word, and Mr. Vause is up here protesting he's not a racist. The attorney pointed to the testimony ofanotherwitness to argue Hood "is even worse" than Vause and "every otherword out of his mouth is the N word." We also hearfrom Tara Marler; ifanything, Mr. Hood is even worse. We heard from Ms. Marler about these two occasions shortly before this incident, how Mr. Hood is loud, he's hyped up, every otherword out of his mouth is the Nword, as Ms. Marler says it. He's talking about, you know, assaults, fights he's been in, all these kinds ofthings. In rebuttal, the prosecutor argued the defense "has clearly tried to make this case about race" and "panderto your prejudices." The defense in this case has clearly tried to make this case about 

### race. They have portrayed Jonathan Vause and Travis Hood as racists, and yet strangely the defense has argued all along, has told you thatthe defendantwas not troubled by the racist slurs that he claims those two men told him. That didn't bother him. He told the police, itwas like water off a duck's back. Itdidn't bother him. So the question you need to ask is why then has the defense made this a case about race. 

### The reason they have made it a case about race is because they're trying to panderto your prejudices. The court overruled the defense objection. 

### The prosecutor argued the defense is "trying to make it so thatyour prejudice 

### against racism clouds your judgment." The prosecutorsaid the State "is asking you to refuse to let yourabhorrence of racism getin the way of a rational view of the evidence

44No. 72093-7-1/45

in this case." They're trying to make you not use your rational thought processes. They're trying to make itso that your prejudice against racism clouds your judgment. The State inthis case is not asking you
— asking you to tolerate racism. The State is asking you to refuse to let your abhorrence ofracism get inthe way of a rational view ofthe evidence in this case. 

### Incontext, the challenged remarks were a fair response to the defense closing argument and did not impugn the integrity ofdefense counsel. 

### Chambers also argues the prosecutor's reference during rebuttal argumentto an "equity defense" and use ofthe word "fooled" were improper 

### "accusations that [defense] counsel was using improper deception on Chambers'
behalf." 

### In rebuttal, the prosecutorargued Dr. Cunningham's testimony about Chambers' 

### "rough life" and the defense argument that "the man that was killed was a racist" was an attempt to presentan "equity defense" and urged jurors not to "befooled." Regarding Dr. Cunningham, youknow, large parts of what Dr. Cunningham testified to really went to they were trying to make it into an 

### equitydefense. The defendant's had a roughlife.
... Dr. Cunningham testified that itwas terrible things that happened to the defendant and his 

### years in prison. He suffersfrom [posttraumatic stress disorder], and then you heard that the man that was killed was a racist. Don't be fooled. The court overruled the defense objection. 

### The prosecutor then said, "Lookat the evidence thatyou actually havein frontof 

### you, . . . whatdoes the defendant's past" and Vause andHood's use of"the Nword
. . . really have to do withwhat happened?" 

### Don't be fooled. Look at the evidence thatyou actually have in front of 

### you, and what does the defendant's past, the defendant's hardlife, and even ifJonathan and Jamie did use the N word among themselves, what

45No. 72093-7-1/46 

### does that reallyhave to do with what happened on the 21stofJanuary, 2012? What does it really have to do? Defense counsel did not object. 

### InThorgerson. the court concluded the prosecutor impugned the integrity of defense counsel by "referring to his presentation of his case as 'bogus' and involving 'sleight of hand.'" Thorgerson. 172 Wn.2d at451-52. The court concluded use ofthe phrase "sleight of hand" implied "wrongful deception oreven dishonesty." Thorgerson. 172 Wn.2d at452. But the court concluded the misconductwas not likely to alterthe outcome ofthe trial. Thorgerson, 172 Wn.2d at451-52. Here, the prosecutor's reference to an "equity defense" did not "fundamentally undermine defense counsel's role or integrity." Lindsay. 180Wn.2d at433. While urging thejury not to "be fooled" arguably implied deception, the argumentwas in pertinent reply to the defense closing argument, and the remark was not likely to alter the outcome ofthe trial. Thorgerson. 172 Wn.2d at 452. We affirm thejury verdict. 

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WE CONCUR:



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