IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, ] No. 71304-3-1

C=3 Respondent, ] DIVISION ONE V- ] UNPUBLISHED OPINION 1 CO 

## DENNIS RICHARDWAITERS, JR., j X* Appellant. FILED: June 8, 2015 up CO 

### Appelwick, J. —Watters appeals his conviction for firstdegree murderbyextreme 

### indifference. Heargues that the trial courterred infailing to instruct the jury on the lesser included offense of firstdegree manslaughter. In the alternative, he argues he received ineffective assistance of counsel at trial because his attorney failed to request the instruction. Watters does not establish that he was entitled to a lesser included 

### instruction. His statement of additional grounds lacks merit. We affirm Watters' 

### conviction. However, we remand to the trial court to vacate a separate sentencing order conditionallyvacating Watters's conviction for firstdegree manslaughter.
FACTS 

### On July 14, 2012, Ethan Mathers and RyanMumm consumed heroin and Xanax and drove to alocal Safewayparking lot, a popular hangout, in Mathers's redBMWsedan. 

### At the Safeway, Zachary Smoots offered to sell Mathers and Mumm some marijuana. Mathers took the marijuana without paying forit, and he and Mumm drove away. 

### Mathers and Mumm drove to BlueStilly Park inArlington where they smoked the 

### marijuana. Smoots and severalfriends, including Brittany Glass and Bo Schemenauer, 

### drove around looking for Mathers and Mumm. Smoots caught up with Mathers and71304-3-1/2



### Mumm after they leftthe park, and the two groups got out of their cars and fought for a short period. The windowof Mathers' car broke during the fight and Mathers cut his hand whilethrowing the pieces at Smoots' car. According to Mathers, Brittany1 kicked a dent in his car and threatened him with a metal pipe, so Mathers kicked her. Mathers and 

### Mumm got back intoMathers's carand drove away. Mathers was upset about his hand and his car, and he and Mumm discussed 

### meeting up with Smoots again to "get somewhat of a fairfight." Mathers called Smoots and thetwo groups agreed to meetback at the park later that day. Mathers and Mummdrove to the homewhere Mummwas temporarily staying with friends, where they used more heroin and gathered weapons, including a croquet mallet and a black metal bar. Mumm also took a Springfield Armory XD9 9mm handgun from the home. Mathers and Mumm recruited three other friends who accompanied them to the park in a separate car. Brittany called her father, James Glass, and told him she had been assaulted by Mathers. James planned to go to the parkand beatup Mathers and Mumm forassaulting Brittany. However, James admitted he was armed with a .357 Taurus revolver that he planned to shoot at a bonfire later that evening. James also called a friend, Dennis Watters, whom he knew had a concealed weapons permit and always carried a gun. Watters, James, Brittany, Smoots, Schemenauer, and several other friends and family members ofthe group met up at a Tesoro gas station near the park and waited.

1 Several witnesses in this case share a last name with other witnesses. For the purposes ofclarity we referto those witnesses by theirfirst name. -2-71304-3-1/3



### When the group saw Mathers' BMWenterthe park, they followed it. The record reflects that approximately 18 people in at least eight separate cars were at the park for the purpose ofthe fight. Mathers testified that he grew impatientwaiting for Smoots and had turned around to prepare to leave when the group entered the park. Mumm got out ofthe passenger seat, fired a warning shot into the air, and got back into the car. As Mumm got into the car, a gold Honda Accord driven by Schemenauer's father Ron "gunned it" into the park and slammed into the front of his BMW. Atthe same time, Watters pulled up in his Ford Ranger truck so that its passenger side was level with the passenger side ofthe BMW. Mathers testified that the area that the three vehicles occupied was approximately 30 or 40 feet wide and would have accommodated only two or possibly three vehicles passing at a time. Mathers backed up and "squeezed" between the Honda and the Ranger in order to exit the park. As Mumm leaned forward to put the gun down underneath the 

### seat, Watters pointed a gun directly at the BMW's open passengerside window and fired "two or three times." Mumm was hit in the temple. Mathers drove out of the park and 

### towards an AM/PM gas station. Watters followed Mathers and shot at the BMW as Mathers turned into the AM/PM parking lot. Watters did not testify. However, Watters gave a recorded statement to law enforcement which was admitted at trial. Watters stated that he owned a 9mm Llama 

### handgun and that he brought it to the park at James's request. When Watters entered the park, the BMW headed towards him until the two cars were "bumper to bumper." Mumm, still inside the car, pulled out a gun and pointed itdirectly at Watters. Watters71304-3-1/4

stated thatMumm fired the gun outofthewindow and a round hit his side mirror. Mathers 

### backed the BMW up and the BMWpassed Watters' truck"rolling byreally slow." At that point, Watters stated: 

### Igrabbed my weapon out, Iloaded it, and as they drove by I shot three rounds I believe into his vehicle. Ithought Iwas still hearing shots so I backed up and Iturned around and Igot onthem and stuff and everything. And Jimwas in front of me and Iwas upsetthat they shot my truck and that 

### they were trying to shoot at me and stuff and everything. And Iwas trying to getaround them so Icould stop them. And Idon'tknowwhat Iwas going to do but Itried to stopthem. Anyways, theywouldn'tstop, so Igot on them and stuff and I think I rammed the car. And I rammed it into the AM/PM. And I drove off. 

### Watters reiterated that he firedthree shots intothe passengerside ofthe BMW "as quick
as Icould pullthetrigger." When a detective asked, "Where did you thinkthebullets were going?" Watters responded, "To the passenger." Watters claimed, "I thought I got [Mumm] inthe shoulder" and that he had "seen fragments of a body part flying" but did not realize that Mumm had been fatally shot until later. Watters also admitted that he might have shothis own side mirror. He denied shooting atthe BMWas itturned intothe AM/PM parking lot. Mumm died as a result of a gunshot wound to the head. A firearms expert from the Washington State Patrol Crime Lab testified that the bullet in Mumm's skull and a bullet recovered from the tire ofthe BMWcame from Watters's gun. The StatechargedWatters with first degree murderbyextreme indifference (Count I) or, in the alternative, second degree intentional murder (Count II) for the shooting of Mumm in the park. The State also charged Watters with first degree assault of Mathers

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### (Count III) and firstdegree assault ofMumm (Count IV) for shooting at the BMW as it entered the AM/PM. The State sought a firearm enhancement on each count. 

### At trial, Watters sought and received an instruction on justifiable homicide as to 

### Counts Iand II. The State and Watters also agreed that the trial court would give lesser included instructions on first degree manslaughter and second degree manslaughterfor 

### Count II. Watters did not request, and the trial court did not give, any lesser included instructions for Count I. The jury convicted Watters as charged on counts I, III and IVand of the lesser included offense of first degree manslaughter on count II. Thejury also returned special verdicts that Watters was armed with a firearm on all four counts. The trial court entered
a separate order dismissing count II "without prejudice and subject to reinstatement.
. . shouldthe Murderinthe First Degree conviction beoverturned." Thetrialcourtsentenced Watters to consecutive standard range sentences totaling 520 months as well as 180 months for the firearm enhancements. DECISION Watters argues that the trial court erred when it failed to instruct thejury on the lesser included offense of first degree manslaughter on Count I. However, the record is 

### clearthat Watters did not request a lesser included instruction on Count I.2 Atrial court

2Watters relies on a discussion betweenthetrial courtandtheprosecutorfollowing the State's motion to amend the information to chargethe alternative offenses of first and second degree murder as separate counts, count Iand count II: THE COURT: Interms ofthejury being confused, itappears to me thejury is highly likely to be more confused if it's charged inthe alternative than ifthey're charged separately. -5-71304-3-1/6

is not obligated to give a lesser included instruction sua sponte. State v. Hoffman. 116 

### Wn.2d 51, 111-12, 804 P.2d 577 (1991). To do so would constitute "an unjustified intrusion into the defense prerogative to determine strategy." State v. Grier. 171 Wn.2d 17,45, 246 P.3d 1260(2011). In the alternative, Watters contends, trial counsel was ineffective for failing to request a lesser included instruction. To establish ineffective assistance of counsel, a defendantmustshowboth thatcounsel's performancewas deficientand the performance prejudiced the defendant's case.3 Strickland v. Washington. 466 U.S. 668, 694, 104 S.
The jury instructions will be far more complex, frankly, in the alternative than they will be if it's charged separately. Is manslaughtereven a possibility as itrelates to Count Ias a lesser included? [PROSECUTOR]: Idon't believe so. THE COURT: But it is as it relates to Count II, isn't it? [PROSECUTOR]: Yes, Ithink it is. THE COURT: At least legally it is. Whether factually it is or not, I don't know. But Idon't believe, correctme ifyou think I'mwrong, but Idon't believe that as a legal matter, a lesser included offense ofmanslaughter is even available for count one, reckless indifference to human life - or not reckless indifference, but extreme indifference to human life. Whereas it is in count two. Watters argues that inconcluding that a lesser included instruction would not have been available on Count I, the trial courtwas relying on State v. Pettus. 89 Wn. App. 688, 951 P.2d 284 (1998) and State v. Pastrana. 94 Wn. App. 463, 972 P.2d 557 (1999). As our Supreme Court has recently clarified, the analyses in Pettus and Pastrana are no longer valid. State v. Henderson. 182 Wn.2d 734, 743-44, 344 P.3d 1207 (2015). But, Watters did not request a lesser included instruction, and we decline to speculate as to whether the trial courtwould have refused to give such an instruction ifrequested. 

### 3 In support of his claim that he was prejudiced by defense counsel's failure to request a lesser included instruction, Watters relies on Keeble v. United States. 412 U.S.71304-3-1/7


### Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficientperformance is shown ifcounsel's conduct 

### fell below an objective standard ofreasonableness. State v. Stenson. 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). To satisfy the prejudice prong, a defendantmust show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Statev. McFarland. 127Wn.2d 322, 334-35, 899 

### P.2d 1251 (1995). "Where the claim of ineffective assistance is based upon counsel's failure to request a particularjury instruction, the defendant must show he was entitled to 

### the instruction, counsel's performancewas deficientin failing to requestit,and thefailure to requestthe instruction caused prejudice." State v. Thompson. 169Wn. App. 436, 495, 

### 290 P.3d 996 (2012). There is a strong presumption that counsel provided effective assistance. State v. Tilton. 149Wn.2d 775, 784, 72 P.3d 735 (2003). Whether a defendant is entitled to a lesser included instruction is analyzed under the two-pronged test outlined in State v. Workman. 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). First, each ofthe elements ofthe lesseroffense must be a necessary elementof the charged offense (the "legal prong"). Statev. Berlin. 133Wn.2d 541, 545-46, 947 P.2d 700 (1997). Second, the evidence must raise an inference that only the lesser offense

was committed to the exclusion of the charged offense (the "factual prong"). State v. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973), in which the Supreme Court held that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, thejury is likely to resolve its doubts in favor ofconviction." However, Keeble "is inapposite in the context of ineffective assistance of counsel." Grier. 171 Wn.2d at 41. This is because "'[i]n making the determination as to whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to thejudgment on grounds of evidentiary insufficiency, that thejudge or jury acted according to law.'" ]d. (alteration in original) (quoting Strickland. 466 U.S. at 694). -7-71304-3-1/8


### Fernandez-Medina. 141 Wn.2d 448, 455, 6 P.3d 1150 (2000). When analyzing the factual prong, weviewthe evidenceinthelightmost favorableto the partywho requested the instruction attrial. Id. at 455-56. However, "the evidence mustaffirmativelyestablish the defendant's theory of the case—it is not enough that the jury might disbelieve the evidence pointing to guilt." Id. at 456. 

### A person is guilty of first degree murder by extreme indifference if he or she, 

### "[u]ndercircumstances manifesting an extreme indifference to human life
. .. engages in conductwhich creates a grave risk ofdeath to any person, and thereby causes the death 

### of a person." RCW 9A.32.030(1 )(b). Aperson is guiltyof firstdegree manslaughterwhen he or she "recklessly causes the death of another person." RCW 9A.32.060(1)(a). A person "acts recklessly when he or she knows ofand disregards a substantial riskthat a 

### wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise inthe same situation." RCW 9A.08.010(1)(c). In the context of manslaughter, the "wrongful act" is homicide. State v. Gamble. 154 Wn.2d 457, 467, 114 P.3d 646 (2005). "Although the boundary is not exact . . . RCW 9A.32.030(1 )(b) [requires] an aggravated or extreme form of recklessness which sets the crime apart from first degree manslaughter." State v. Dunbar. 117 Wn.2d 587, 594, 817 P.2d 1360(1991). Here, parties concede that the legal prong is met, because the elements of first degree manslaughter are necessary elements of first degree murder by extreme indifference. Thus, the only issue is whetherthe factual prong was met. Inotherwords, Watters must demonstrate that a rational juror could find that his conduct constituted a

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knowing disregard of a substantial riskthat a homicide could occur, but did not constitute 

### an "extreme indifference" that created a "grave risk" of death. RCW9A.32.030(1 )(b). Watters does not make this showing. The testimony, even in the light most 

### favorable to Watters, showed that Watters fired three shotsfrom a 9mm handgun directly into the passenger window of the BMW, striking and killing Mumm. The passenger window ofWatters' truck was lined up withthe passengerwindow of the BMW, and the two vehicles were so close that Mathers had to drive slowly and "squeeze" by. The 

### likelihoodthat one of the shotswouldkill one of the occupants of the BMWwas extremely high. This was more than mere reckless conduct. Because Watters does not demonstrate that he would have been entitled to a lesser included instruction, he fails to 

### demonstrate thatdefense counsel's failure to request one was deficient performance. Watters's reliance on State v. Henderson. 182 Wn.2d 734, 344 P.3d 1207 (2015) is misplaced. InHenderson, the defendantfired shotsfrom the sidewalktowards a house where a party was being held, killing an individual hired to act as security for the party who was standing near the front ofthe house. Id. at 739. Police found two bullet holes in the side of the house and others in the sides of cars in the street, but none inside the house, where the majority of the partygoers were, id. Our Supreme Court concluded that, viewing the evidence inthe lightmostfavorable to the defendant, a jury could have rationally concluded that he acted with disregard for a substantial risk ofhomicide rather than an extreme indifference that caused a grave risk of death because he shot from a substantialdistance into a relatively unpopulated area and appearedto be erraticallyfiring his gun ratherthan aiming to kill. Id. at 746.71304-3-1/10


### Henderson isdistinguishable. Here, there is noevidence thatWatters wasfiring indiscriminately. On the contrary, it is uncontroverted thatWatters was aiming at the BMWin order to"stopthem." Moreover, Watters shotfrom extremely closerange, not a substantial distance like the defendant in Henderson. 

### Watters further claims the trial courtviolated double jeopardy when it entered the separate order conditionally vacating Count II. "Doublejeopardy prohibits courts from explicitly holding vacated lesser convictions alive for reinstatement should the more 

### serious conviction for the same criminal conduct fail on appeal." State v. Turner. 169 Wn.2d 448, 465, 238 P.3d 461 (2010). The State concedes this was error. We remand
to the trial court with instructions to vacate the order. 

### Watters raises numerous issues in his statement of additional grounds, none of which establish a basis for review. 

### Watters claims the trial court erred in permitting Mumm's motherto testify and to observevoir dire beforetestifying. Mumm's mothertestified only to the dates of Mumm's birth and death and identified him from a photograph. Given the limited nature of the testimony, Watters does not demonstrate any prejudice. Watters contends that he was prejudicedwhen Mathers used theterm "murdered" and "executed" and when other witnesses referred to Mathers and Mumm as "kids." BecauseWatters did not object below and has not established a manifesterror affecting

a constitutional right, he has waived these claims. RAP 2.5(a).

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### Watters challenges the credibility of several witnesses. However, credibility determinations are the sole province of the jury and not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Watters claims that members of the jurywere passing through the courtroom at the time he was being handcuffed and this compromised his presumption ofinnocence. However, there is no evidence in the record that any jurors saw Watters in handcuffs. Moreover, "[a] jury's brief or inadvertent glimpse of a defendant in restraints inside or outside the courtroom does not necessarily constitute reversible error. Such 

### circumstances are not inherently or presumptively prejudicial and do not rise to the level of a due process violationabsent a showing ofactual prejudice." Inre Pers. Restraintof Davis. 152 Wn.2d 647, 697-98, 101 P.3d 1 (2004). Watters does not demonstrate prejudice. Watters argues thatdefense counsel was ineffective for failing to objectto various statements as hearsay or speculation and failing to adequately highlight another statement during closing argument. Because statements identified by Watters were of extremely limited relevance, Watters fails to demonstrate deficient performance or resulting prejudice. Watters claims thata letterwritten by his fatherforthe purposes ofsentencing was disregarded by the trial court. But, thejudge stated on the record he had read the letter and Watters' father spoke on Watters' behalfatthe sentencing hearing. Finally, Watters claims that he was denied his constitutional right to counsel atthe time of his arrest and that the State improperly edited the statement he made to law

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enforcement. These claims appear to rely on facts outside the record and cannot be considered on direct appeal. McFarland. 127 Wn.2d at 337-38. We affirm Watters' conviction. We remand for the vacation of the order conditionally vacating Count II.

WE CONCUR: 

# S'e^e,

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