IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

RICHARD F. KLEPACKI,

Appellant.

ANTHONY J. TUDOR,

Defendant.

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No. 33983-1-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.C.J. — Richard F. Klepacki appeals his conviction for first 

degree murder with a firearm enhancement. He claims that numerous errors below entitle 

him to a new trial. We disagree and affirm.

FACTS

Background facts

On January 4, 2014, at approximately 9:15 p.m., Gary Wright heard a loud knock 

on the front door of his friend Ed Giesbrecht’s apartment in Deer Park, Washington. As 

Giesbrecht approached the door to open it, someone on the other side kicked it open and 

FILED

FEBRUARY 1, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 33983-1-III

State v. Klepacki

2

off its hinges. Wright witnessed one person come through the doorway and fire one shot 

at Giesbrecht, killing him. Wright later described the shooter as a young stocky male, 

wearing a dark blue hoodie, baseball cap, and a blue bandana that covered his face.

Bernhard Dedicos was at the same apartment complex that night. He heard what 

sounded like fireworks. When he went outside he saw two men run by him. The men 

headed north and then turned east down an alley between C and D Streets. One of the 

two men appeared to have a pistol in his hand. When Dedicos learned that Giesbrecht

had been shot, he called 911.

Deputy Robert Brooke responded to the call. As he was driving along C Street, he 

saw a man run into a wooded area. Deputy Brooke reported on the radio what he saw and 

pursued the man on foot. K-9 Deputy Steven Stipe assisted and found Klepacki lying 

face down in bushes near the entrance to Deer Park Middle School, one-fifth of a mile 

from Giesbrecht’s apartment. Klepacki had blood on his face. The patrol dog found a

nylon pistol holster in the bushes near Klepacki. The holster did not have snow or dew on 

it, indicating that someone had recently left it there. 

Detective James Dresback interviewed Klepacki shortly after his arrest. The 

interview was recorded. During the interview, Klepacki admitted that he ran and hid 

when he saw law enforcement, and attributed his actions to “instinct.” Clerk’s Papers 

(CP) at 51. When told that he had blood on his face, Klepacki claimed the blood had 
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been there since New Year’s Day, even though he had showered several times since then. 

He later said that he likely hurt himself when he hid from law enforcement. He denied 

that he owned a pistol and denied that the holster found near him belonged to him. He 

said he had been at his girlfriend Tracy Tudor’s house that night and decided to go for a 

long walk. He claimed he had been walking alone for several hours that night. He denied 

going into any store that night. Soon after, Detective Dresback handed a receipt found in 

Klepacki’s coat that showed he had purchased alcohol about an hour before the murder. 

Klepacki then admitted that he went to the store that night. Later, Klepacki denied being 

at the store. When reminded of the receipt, Detective Dresback asked Klepacki if he was 

at the store alone. Klepacki answered that he was alone. 

Store surveillance video showed that around 8:00 p.m., Klepacki and Tracy 

Tudor’s 23-year-old son, Anthony Tudor, were in the store. Klepacki was wearing a 

jacket, and Tudor had on a black hoodie. Klepacki had no blood on his face.

Investigation

Giesbrecht’s front door had at least one visible footprint. A spent bullet was 

recovered in the drywall in the living room. A few days later, a shell casing was found.

Law enforcement obtained a search warrant to search 306 C Street, Tracy and 

Anthony Tudor’s house. The address was approximately one block north of Giesbrecht’s 

apartment. The search found a blue bandana, several baseball caps, and a pair of tennis 
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4

shoes with a tread pattern similar to the tread prints on Giesbrecht’s front door. No pistol 

was found. 

On January 23, 2014, Hazel McGillivary contacted law enforcement. Her son had 

directed her to a gun that had earlier been found by another child between B and C Streets 

near Deer Park Middle School. Law enforcement obtained the gun from McGillivary. It 

was a .45 caliber semi-automatic pistol. 

Forensic examination of the evidence established that the .45 caliber pistol was the 

murder weapon. A forensic witness explained why deoxyribonucleic acid (DNA) and 

fingerprints would not be found on a pistol exposed to extreme cold and moisture for 

weeks. A forensic witness confirmed that the tread of the tennis shoes recovered at 

Tudor’s house was similar to the tread prints on Giesbrecht’s front door. A DNA analysis 

established that blood found on the coats of Tudor and Klepacki was Klepacki’s blood.

Procedural facts

The State charged Klepacki and Tudor with first degree murder of Giesbrecht. 

The State later amended the charge to add the alternative charge of felony murder 

committed during the commission of first degree burglary. Klepacki filed a motion to 

sever the trials based on the fact that Tudor made incriminating statements that were 

prejudicial to Klepacki. The motion was unopposed, and the trial court severed the case 

into two trials. 
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Tudor’s trial occurred first and resulted in his conviction for first degree murder. 

His sister, Cheyeanne Woods, briefly testified at his trial. She denied having any 

information about the murder.

Klepacki’s trial

1. Lack of hearsay objection to McGillivary’s testimony

Klepacki’s trial began October 26, 2015. During its case in chief, the State called 

McGillivary. The State asked McGillivary what she did once the gun was brought to her. 

McGillivary answered, 

Well, Logan, the eight—I think he was about ten at the time—a little boy 

found the gun and he brought it to the bus stop. Then my son run across the 

street and said, Mom, it’s a real gun. So I took a bag and went over there

. . . . And it was in the alley—in the gutter after Logan had dropped it there.

3 Report of Proceedings (RP) (Nov. 2, 2015) at 387. McGillivary then used a diagram 

and showed the jury the alleyway and bus stop where she retrieved the gun. Klepacki did 

not object during this testimony. 

2. Hearsay objection to Detective Dresback’s testimony

The State also called Detective Dresback. The State asked the detective if he had 

done any research about the holster, and he answered that he had. The State began to ask 

Detective Dresback if he had consulted a firearms expert about the holster, and Klepacki 

objected. However, Klepacki withdrew his objection and said he would wait until the
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State v. Klepacki

6

State finished its question. The State restated the question and asked Detective Dresback 

about his own research. Detective Dresback replied the holster, “[a]n Uncle Mike’s 

holster No. 5 was designed to hold a firearm that is a large frame semi-automatic with a 

four-and-a-half to five-inch barrel, which was the kind of gun that was the murder 

weapon.” 5 RP (Nov. 4, 2015) at 801.

The State then asked if Detective Dresback discussed that research with a firearms 

expert, and Detective Dresback responded that he had. The State asked the detective to 

relate that conversation, and Klepacki objected on the basis of hearsay. The State 

represented that the firearms expert had already testified about the holster and had been 

subject to cross-examination on the issue. The trial court agreed with the State and, 

believing that any confrontation clause issue was satisfied by the expert’s earlier 

examination, overruled the objection. However, the record shows that neither party 

questioned the firearms expert about the holster. 

3. Lack of hearsay objection to Detective Dresback’s demonstration

During Detective Dresback’s redirect, the following colloquy occurred:

[The State:] Detective, with respect to your interview with Mr.

Wright, [did] Mr. Wright during that interview demonstrate for you how the 

shooter was holding the gun? 

[Detective Dresback:] Yes, he did. 

[The State:] And how that demonstration—I mean, what was the 

demonstration? 
No. 33983-1-III

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[Detective Dresback:] He held his finger up like a gun in a fashion 

that he recalls seeing the shooter, he believed the shooter held the gun. 

[The State:] How did he demonstrate; what was it that you saw? 

Left hand, right hand? 

[Detective Dresback:] It was the right hand up over his shoulder, 

like this (indicating). 

5 RP (Nov. 5, 2015) at 845-46. Klepacki did not object during this colloquy. Although 

Wright had earlier testified at trial, neither attorney asked him how the shooter had held 

the gun. 

4. Alleged prosecutorial misconduct

Three days before Klepacki’s trial began, the State notified Klepacki that Tudor’s 

sister, Cheyeanne Woods, would testify against Klepacki. According to the State, Woods 

would testify that her brother called her about 15 minutes after the murder, was very 

emotional, and told her that Klepacki had just shot someone.

The State filed a motion seeking to have Woods’s testimony deemed admissible. 

Klepacki objected. The trial court ruled that Woods could testify what her brother said, 

subject to the State laying a proper foundation for an excited utterance. 

Defense counsel interviewed Woods on October 29, prior to her testifying. After 

this interview, and once the jury was excused, defense counsel voiced a concern. Counsel

said he thought the State was committing prosecutorial misconduct in offering Woods’s

testimony to the jury. The court noted that defense counsel had not provided any 
No. 33983-1-III

State v. Klepacki

8

authority, briefing, or motion on the subject. Defense counsel said he would bring a 

CrR 8.3(b) motion to dismiss for misconduct. No such motion was brought.

Woods testified as anticipated. During her examination, Woods admitted that her 

new testimony was inconsistent with the testimony she gave in her brother’s trial, that she 

told the State very recently she did not know anything about the murder, and that she 

spoke with her brother after that discussion with the State. Woods explained that she had 

withheld the substance of her brother’s January 4 phone calls because her brother’s claim

at trial and in the pending appeal was that he was not present during the murder. She 

acknowledged that her present testimony hurt her brother’s pending appeal.

The State presented call logs that verified Woods received calls from her brother 

the night of the murder, including a call around 9:30 p.m. 

5. State’s theory explained

The State explained its theory of the case during closing. The State argued that 

Tudor had kicked Giesbrecht’s front door open and that Klepacki, standing behind and 

reaching over Tudor, fired the .45 caliber pistol. The State’s theory therefore accounted 

for Tudor’s shoe prints on the door, Wright’s testimony that the shooter was a younger 

person wearing a dark hoodie and holding the pistol above his shoulder, and the fact that 

the gun’s holster was found near Klepacki in the bushes.
No. 33983-1-III

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6. Verdict and posttrial motions

The jury found Klepacki guilty of first degree murder and entered a special 

finding that Klepacki had possessed a firearm at the time of the crime. Klepacki filed a 

CrR 7.4(a)(3) motion for arrest of judgment, challenging the sufficiency of the evidence. 

The trial court denied that motion.

Klepacki also filed a CrR 7.5(a)(2) motion for a new trial, claiming prosecutorial 

misconduct. Klepacki asserted that the prosecutor improperly offered leniency in 

exchange for Woods’s testimony. Klepacki’s motion was based on defense counsel’s 

affidavit. Paraphrasing for brevity, the affidavit explained: 

After his conviction and sentencing, Tudor’s attorney contacted the 

State and asked, “What will you give Tudor for coming forward and saying 

what happened?” The State said it would listen to Tudor only if it could be 

corroborated. 

The State scheduled an interview with Tudor’s sister and mom. The 

interview occurred on October 15 and was videotaped. The State asked 

both women how they felt about Tudor serving time for murdering 

Giesbrecht while the person who actually shot Giesbrecht, Klepacki, would 

probably go free. The State also told them about the call it received from 

Tudor’s attorney, and its response that it needed corroboration. Both 

women adamantly insisted throughout the videotaped interview that they

knew nothing. 

After the interview, Woods called her brother in prison. After this 

call, she contacted the State and offered new information. The State 

scheduled a second interview, although not recorded. Woods told the State 

that her brother had called her shortly after the murder, sounded freaked out 

and scared, and told her that Klepacki had just shot and killed someone. 
No. 33983-1-III

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See CP at 163. The trial court considered defense counsel’s affidavit and reviewed 

Woods’s October 15 videotaped interview. The trial court concluded that Klepacki had 

not established prosecutorial misconduct and denied his CrR 7.5(a)(2) motion for a new 

trial. 

Klepacki appealed. 

ANALYSIS

Klepacki raises four arguments in his direct appeal: (1) the trial court abused its 

discretion when it denied his CrR 8.3(b) motion to dismiss for prosecutorial misconduct,

(2) the trial court erred in admitting Detective Dresback’s hearsay testimony that the 

murder weapon could fit in the holster found near Klepacki, (3) he was denied effective 

assistance of counsel when defense counsel failed to object to McGillivary’s hearsay 

statement about how the gun was found, and (4) he was denied effective assistance of 

counsel when defense counsel failed to object to Detective Dresback’s demonstration of

Wright’s reenactment of how the shooter held the gun. 

A. PROCURING WOODS’S TESTIMONY WAS NOT PROSECUTORIAL MISCONDUCT

Klepacki argues the trial court abused its discretion when it denied his CrR 8.3(b) 

motion to dismiss for prosecutorial misconduct. We note that Klepacki never brought a 

CrR 8.3(b) motion to dismiss. Rather, Klepacki brought a motion for a new trial under 

CrR 7.5(a)(2). The State does not raise this discrepancy as an issue. We treat Klepacki’s 
No. 33983-1-III

State v. Klepacki

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claim of error as pertaining to the trial court’s denial of his motion for a new trial under 

CrR 7.5(a)(2).

CrR 7.5(a)(2) authorizes a trial court to grant a defense motion for a new trial if it 

appears that a substantial right of the defendant was materially affected by prosecutorial 

misconduct. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). The decision to 

grant or deny a new trial is within the discretion of the trial court, and this court will not 

disturb that decision unless there is a clear abuse of discretion. Id. at 51. A trial court 

abuses its discretion when no reasonable judge would have reached the same conclusion. 

Id. at 52. 

To show prosecutorial misconduct, the defendant has the burden of establishing 

that (1) the State acted improperly, and (2) the State’s improper act prejudiced the 

defendant. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). Misconduct is 

prejudicial if there is a substantial likelihood it affected the verdict. Id. at 760-61. 

Klepacki argues that the State acted improperly because it procured Woods’s

testimony by offering leniency to someone else, her brother. Klepacki cites United States 

v. Singleton, 165 F.3d 1297, 1301-02 (10th Cir. 1999) to support his argument. We do 

not read Singleton as supporting his argument.

In Singleton, the government had promised a co-conspirator leniency in exchange 

for the co-conspirator’s testimony. Id. at 1298. The defendant appealed the lower court’s 
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refusal to suppress the testimony. Id. at 1297. The defendant argued that the 

government’s offer to the witness violated the federal anti-gratuity statute.

1 Id. at 1299. 

In rejecting the argument, the Singleton court stated:

[T]he defendant implies Congress must have intended to subject the United 

States to the provisions of section 201(c)(2), and, consequently, like any 

other violator, to criminal prosecution. Reduced to this logical conclusion, 

the basic argument of the defendant is patently absurd.

Id. at 1300. 

The Singleton court held that the longstanding practice of exchanging leniency for 

truthful testimony was not prohibited under the anti-gratuity statute. Id. at 1302. The 

Singleton court clarified that its holding did not permit the government to offer a witness 

something beyond a concession normally granted:

Our conclusion in no way permits an agent of the government to step 

beyond the limits of his or her office to make an offer to a witness other 

than one traditionally exercised by the sovereign. A prosecutor who offers 

something other than a concession normally granted by the government in 

exchange for testimony is no longer the alter ego of the sovereign and is 

divested of the protective mantle of the government. Thus, fears our 

decision would permit improper use or abuse of prosecutorial authority 

simply have no foundation.

 1 18 U.S.C. § 201(c)(2) provides that whoever corruptly gives, offers, or promises 

anything of value to any person, or offers or promises such person to give anything of 

value to any other person with intent to influence the testimony under oath of such firstmentioned person as a witness upon a trial shall be fined under this title or imprisoned for 

not more than two years, or both.
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Id. 

Klepacki asserts that Singleton prohibits the State from offering leniency to anyone 

but the witness, i.e., Woods. We disagree. Singleton was concerned with what the 

government offered, not who might benefit from the government’s offer. Singleton

focused on the type of concession the government offered and concluded that the 

longstanding governmental practice of exchanging leniency for testimony was not 

improper. 

Here, the record does not establish that the State offered leniency to Woods’s 

brother. But even if the State did offer leniency to him, it is of no consequence. We 

conclude that the trial court did not abuse its discretion when it denied Klepacki’s 

CrR 7.5(a)(2) motion for a new trial.2

B. ADMITTING HEARSAY TESTIMONY ABOUT THE HOLSTER WAS HARMLESS 

ERROR

1. Hearsay

 2 After oral argument, Klepacki filed a “Memorandum Re Statement of Additional 

Authorities.” In the two-page memorandum, Klepacki clarifies his prosecutorial 

misconduct argument. We understood his argument without the need for clarification. 

The State has moved to strike the memorandum as an improper post-argument

submission. We agree and grant the State’s motion to strike.
No. 33983-1-III

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Klepacki argues the trial court erred in admitting Detective Dresback’s testimony 

that the firearms expert confirmed to him that the .45-caliber pistol could fit inside the 

holster found near Klepacki. 

The State does not dispute that Detective Dresback’s testimony was hearsay. The 

State instead argues that Klepacki failed to object. We disagree. Klepacki did object. 

But the trial court allowed the testimony because it wrongly believed the firearms expert 

had already testified on the issue. Regardless of whether the firearms expert had earlier 

testified on the issue, the detective’s recitation of the expert’s opinion still was hearsay. 

The trial court, therefore, erred by admitting Detective Dresback’s hearsay 

testimony. 

The State alternatively argues that admission of the hearsay was harmless. We 

agree. Error in admitting hearsay may be harmless if there is a reasonable probability that 

the error did not materially affect the verdict. State v. Owens, 128 Wn.2d 908, 914, 913 

P.2d 366 (1996). Here, Detective Dresback testified about his own research and stated 

that his research confirmed that the .45-caliber pistol could fit inside the holster. This 

was proper nonhearsay testimony. An error is not prejudicial if similar testimony was 

admitted. State v. Ramirez-Estevez, 164 Wn. App. 284, 293, 263 P.3d 1257 (2011).
No. 33983-1-III

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2. Confrontation clause

Klepacki further argues that the admission of the hearsay statement violated his 

rights under the confrontation clause. Under the Sixth Amendment to the United States 

Constitution’s confrontation clause, “[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witness against him.” In general, the 

confrontation clause prohibits the admission of an unavailable declarant’s out-of-court 

statement if the hearsay qualifies as testimonial. Davis v. Washington, 547 U.S. 813, 821, 

126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). 

The parties present a thorny issue of whether Klepacki’s failure to assert a specific 

confrontation clause objection waives his right to review. The issue presented is thorny 

given that the trial court glossed over the hearsay objection and focused on the 

confrontation clause when it erred in admitting the evidence. 

We note that both the .45-caliber pistol and the holster were in the courtroom 

throughout most of the trial. The hearsay statement of Detective Dresback did not 

prevent Klepacki from confronting his absent accuser. The best evidence of whether the 

absent accuser’s opinion was true was available to Klepacki within the four walls of the 

courtroom. If there was a bona fide question whether the pistol fit the holster, the 

question could have been irrefutably answered without resort to any absent witness. One 

only would have had to place the pistol inside the holster. For this reason, we reject 
No. 33983-1-III

State v. Klepacki

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Klepacki’s claim that the admission of the hearsay violated his rights under the 

confrontation clause.

C. COUNSEL NOT INEFFECTIVE FOR FAILING TO OBJECT TO MCGILLIVARY 

HEARSAY

Klepacki argues he received ineffective assistance of counsel when his attorney 

failed to object to McGillivary testifying where a child had originally found the murder 

weapon. We disagree. 

To meaningfully protect an accused’s right to counsel, an accused is entitled to 

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984). Courts apply a two-prong test to determine if counsel provided 

effective assistance: (1) whether counsel performed deficiently, and (2) whether the 

deficient performance prejudiced the defendant. Id. at 687. If a defendant fails to 

establish one prong of the test, this court need not address the remaining prong. State v. 

Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). This is a mixed question of law 

and fact, reviewed de novo. Strickland, 466 U.S. at 698. 

To satisfy the first prong, the defendant must show that, after considering all the 

circumstances, counsel’s performance fell below an objective standard of reasonableness.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The burden is on the 

defendant to show deficient performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 
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1260 (2011). This court gives great deference to trial counsel’s performance and begins 

the analysis with a strong presumption counsel performed effectively. State v. West, 185 

Wn. App. 625, 638, 344 P.3d 1233 (2015). A counsel’s failure to object to evidence is a 

classic example of trial tactics; only in egregious circumstances will it constitute deficient 

performance. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).

McGillivary explained that she retrieved the murder weapon and called police 

because a child had found a gun near the school and dropped it in an alleyway nearby at a 

bus stop. By testifying that a child had originally found the gun near the school, it places 

the gun closer to where law enforcement found Klepacki. 

Had Klepacki raised a hearsay objection, the State would have been required to 

call the boy who found the gun as a witness. Having a boy testify that he found a gun on 

the way to school would not have benefited Klepacki. It would have emphasized the 

danger a gun poses. We determine that defense counsel’s failure to object to 

McGillivary’s testimony was a legitimate tactical decision.

D. COUNSEL NOT INEFFECTIVE FOR FAILING TO OBJECT TO DETECTIVE 

DRESBACK’S DEMONSTRATION OF WRIGHT’S PORTRAYAL OF HOW SHOOTER 

HELD GUN

Klepacki contends he received ineffective assistance of counsel when his attorney 

failed to object to Detective Dresback’s demonstration of Wright’s portrayal of how the 

shooter held the gun. The State does not dispute Klepacki’s valid contention that the 
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detective’s demonstration constitutes nonverbal hearsay. See, e.g., In re Dependency of 

Penelope B., 104 Wn.2d 643, 652, 709 P.2d 1185 (1985). Instead, the State obliquely 

argues that defense counsel’s lack of objection was a legitimate trial strategy. With the 

following explanation, we agree.

In closing, the State argued Klepacki was the shooter largely based on Detective 

Dresback’s demonstration of how Wright portrayed to him the shooter holding the gun 

above his shoulder. The State argued that Wright saw Tudor because Tudor was in front 

and that Wright saw the gun over Tudor’s shoulder because Klepacki was reaching over 

Tudor with the gun. 

Klepacki countered the State’s argument in his closing:

Shot over the shoulder? What did Mr. Wright say, shot over the 

shoulder? Did you hear Mr. Wright say anything like that when he’s giving 

his observations about the shooter? Where did that come from, a shot over 

the shoulder? Did you hear any testimony about that in here? Detective 

Dresback tried to say something to that effect, but it wasn’t from a witness.

5 RP (Nov. 5, 2015) at 947.

Klepacki, by not objecting to Detective Dresback’s demonstration, allowed him to 

argue that the evidence of how the shooter held the gun was unbelievable because the 

evidence did not come from a witness to the shooting. This is a classic example of trial 

tactics, the kind we will not second-guess absent extreme circumstances. This is not an 

extreme circumstance. Defense counsel’s closing argument on this point was sufficiently 
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sound to not warrant reversal.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

RAP 10.10 permits a defendant to file a pro se statement of additional grounds for 

review (SAG) if the defendant believes his appellate counsel has not adequately 

addressed certain matters. RAP 10.10(d) directs that the defendant should file his SAG 

within 30 days of receiving his appellate counsel’s brief and notice of the substance of 

rights and obligations under RAP 10.10. 

Here, Klepacki’s appellate counsel mailed the appellant’s brief to Klepacki and 

notified him of the substance of RAP 10.10 on December 12, 2016. Klepacki filed his 

first SAG on February 13, 2017 (raising 21 distinct arguments in his 5 grounds for 

review) and his supplemental SAG on July 25, 2017. We deem the supplemental SAG in 

substantial violation of RAP 10.10(d) and address only those issues raised in the 

February 13, 2017 SAG.

3

SAG Ground 1: 

A. Bias of judge/charging in the alternative

Klepacki asserts, “Bias application of discretion and failing to protect the rights of 

the defendant, thereby handicapping the defense by allowing the state a wide latitude with 

 3 We nevertheless reviewed the issues raised in the July 25, 2017 SAG and 

conclude they lack merit.
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and to objections to the prosecution.” SAG at 1. Klepacki’s assertion does not inform us 

of the nature and occurrence of the claimed error. We, therefore, decline to review it. 

State v. Clark-El, 196 Wn. App. 614, 625, 384 P.3d 627 (2016).

Klepacki also complains that the court allowed the State to charge him by 

alternative means, which prevented him from knowing the exact nature of the charges. 

CrR 2.1(a)(1) permits charging in the alternative. Klepacki fails to explain how the 

charges were confusing. His mere assertion that the information was confusing is 

insufficient to warrant our review. 

B. Improper instructions

Klepacki argues the instructions were improper and confused the jury. But we will 

not review a claimed instructional error in the absence of a preserved objection at trial. 

State v. Hickman, 135 Wn.2d 97, 104-05, 954 P.2d 900 (1998). Here, Klepacki did not 

object or take any exception to the trial court’s instructions.

SAG Ground 2:

1A. Prosecutorial misconduct: Charging decision

Similar to his argument above, Klepacki argues the prosecutor committed 

misconduct because he did not know what statute to charge. Because the law permits 

charging in the alternative, we reject Klepacki’s argument of prosecutorial misconduct.
No. 33983-1-III

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1B. Prosecutorial misconduct: Prosecuting a knowingly false case

Klepacki argues that the prosecutor committed misconduct by prosecuting a case 

against him that the prosecutor knew was false. Klepacki points to the October 15 

videotaped interview in which the prosecutor told Woods that Klepacki might not be 

convicted. This statement does not establish that the prosecutor knew the case against 

Klepacki was false. Up until Woods’s testimony, the State’s case against Klepacki relied 

on circumstantial evidence. The State had a store video that showed Klepacki and Tudor 

together shortly before the murder. The State also had a witness who saw two men, one 

with a gun, running away from the murder scene soon after the shooting. In addition, a 

deputy who responded to the call saw Klepacki running in the opposite direction from the 

murder scene and found a freshly placed gun holster near where Klepacki was hiding. 

The evidence does not support Klepacki’s argument that the prosecutor knew the case 

against Klepacki was false.

2A. Prosecutorial misconduct: Giving testimony during closing

Klepacki argues that the prosecutor committed misconduct during closing 

arguments by testifying how the events happened on January 4. We disagree. The 

prosecutor used the evidence admitted during trial to argue how the crime likely occurred. 

For instance, although no one actually testified that Klepacki reached over Tudor to shoot 

Giesbrecht, the evidence did permit the argument to be made. The jury was free to 
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believe or disbelieve the State’s various arguments. To assure that the conviction was 

based only on evidence admitted during the trial, and not on the lawyers’ arguments, the 

trial court instructed the jury: 

The lawyers’ remarks, statements and arguments are intended to help 

you understand the evidence and apply the law. It is important, however, 

for you to remember that the lawyers’ statements are not evidence. The 

evidence is the testimony and the exhibits. . . . You must disregard any 

remark, statement or argument that is not supported by the evidence or the 

law in my instructions.

5 RP (Nov. 5, 2015) at 909. We presume that the jury followed the court’s instructions.

State v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015). Because the prosecutor’s 

arguments were not evidence, but instead were arguments based on trial testimony, we 

reject Klepacki’s claim that the prosecutor committed misconduct by testifying. 

2B. Prosecutorial misconduct: Explanation of Klepacki’s injury

Klepacki argues the prosecutor committed misconduct by telling the jury during 

closing argument that he cut his head by either being hit with the gun or running into a 

guide wire. Again, the trial court explained to the jury that the attorneys’ statements 

during closing are not facts and any statements not supported by the evidence should be 

disregarded. If the prosecutor’s statements to the jury were not supported by the 

evidence, we presume that the jury followed the court’s instructions and disregarded the 

argument. Id. 
No. 33983-1-III

State v. Klepacki

23

2C. Prosecutorial misconduct: How shooter held gun

Klepacki argues the prosecutor committed misconduct by misstating the testimony 

how Wright described the shooter holding the gun. Klepacki claims that Wright 

described the shooter as holding the gun at shoulder level, not above the shoulder. As 

noted above, if the evidence did not support the prosecutor’s argument, we presume the 

jury disregarded it. Also, the jury was permitted to believe Detective Dresback’s 

description of how Wright portrayed the shooter.

2D. Prosecutorial misconduct: Argument that Klepacki admitted that 

holster fell out of his pocket

Klepacki argues the prosecutor committed misconduct by misstating that Klepacki

admitted to Detective Dresback that the holster fell out of his pocket. Klepacki argues the 

evidence clearly showed that he said his cell phone may have fallen out of his pocket. We

presume the jury disregarded the prosecutor’s misstatement of the record. Nevertheless, 

the evidence showed that the holster had been recently discarded in the vicinity where 

Klepacki was hiding from law enforcement. The jury could have reasonably believed that 

Klepacki discarded the holster.

SAG Ground 3:

3A. Ineffective assistance of counsel: Failure to file suppression motion
No. 33983-1-III

State v. Klepacki

24

Klepacki argues he received ineffective assistance of counsel because his 

counsel’s “failure to file a motion for a [CrR] 3.6(a) Suppression of Evidence Hearing.” 

SAG at 3. We are unable to determine what Klepacki believes should have been 

suppressed. Because we are unable to determine the nature of the claimed error, we will 

not review it.

3B. Ineffective assistance of counsel: Failure to object at trial

Klepacki argues he received ineffective assistance of counsel because his attorney 

did “[n]ot object[ ] to any of the evidence the state admitted during trial.” SAG at 3. The 

record refutes Klepacki’s argument. Defense counsel objected throughout the entire trial.

3C. Ineffective assistance of counsel: Not hiring forensic expert

Klepacki argues he received ineffective assistance of counsel because his attorney 

did not provide “forensic expert for defense rebuttal to state’s findings and testimony.” 

SAG at 3. Klepacki does not explain whether the evidence he thinks should have been

challenged relates to the gun, the shoes, the holster, or the DNA evidence. Because we 

are unable to determine the nature of the claimed error, we will not review it. 

3D. Ineffective assistance of counsel: Detective Lyle Johnston’s

speculation

Klepacki argues he received ineffective assistance of counsel because his attorney 

did not ask the trial court to strike Detective Johnston’s speculation that a guide wire 
No. 33983-1-III

State v. Klepacki

25

could have caused Klepacki’s head injury. Here, the trial court sustained defense 

counsel’s objection that Detective Johnston’s opinion was speculation, but did not 

explicitly tell the jury to disregard the evidence. Nevertheless, the trial court instructed 

the jury to not consider evidence that was stricken or “not admitted.” 5 RP (Nov. 5,

2015) at 907. Again, we presume the jury followed the trial court’s general instruction. 

3E. Ineffective assistance of counsel: Not objecting at closing

Klepacki argues he received ineffective assistance of counsel because his attorney 

failed to object to the prosecutor’s description of how the shooter held the gun. Here, 

there was an issue of fact. Detective Dresback testified that Wright portrayed to him that 

the shooter held the gun above his shoulder. Defense counsel was not deficient for failing 

to object to an argument supported by the record.

SAG Ground 4:

4A/B. Irrelevant evidence: Lack of DNA/prints on gun

Klepacki argues the trial court erred when it admitted irrelevant evidence that 

forensics did not recover his or Tudor’s DNA/prints on the gun. Klepacki did not object 

to this testimony. He, therefore, waived his right to review on this issue. State v. Guloy, 

104 Wn.2d 412, 422, 705 P.2d 1182 (1985); see also State v. Blake, 172 Wn. App. 515, 

530, 298 P.3d 769 (2012). 

4C/D. Irrelevant evidence: Clothing not worn by him
No. 33983-1-III

State v. Klepacki

26

Klepacki argues the trial court erred when it admitted irrelevant evidence of 

pictures of hats and the bandana from Tudor’s residence because there was no evidence 

that he wore the hat or the bandana on the night of the murder. Again, Klepacki did not 

object to this testimony. He, therefore, waived his right to review on this issue. Blake, 

172 Wn. App. at 530.

4E. Irrelevant evidence: Nike shoes

Klepacki argues the trial court erred when it admitted the Nike shoes because 

forensic evidence was inconclusive about whether the tread print matched the prints on 

the victim’s front door. Klepacki’s failure to object to this evidence precludes our 

review. Id.

4F. Irrelevant evidence: Holster

Klepacki argues the holster was irrelevant because there was no evidence linking 

him to the holster. We disagree. The holster was recently placed where he was hiding 

from law enforcement. A jury could draw the reasonable inference that Klepacki hid the 

holster.
No. 33983-1-III

State v. Klepacki

27

SAG Ground 5: Brady4 violation

Klepacki argues the State violated Brady by refusing to admit into evidence his

boots or that he was wearing them. The record does not support this argument. 

Brady imposes a duty on the State to disclose material evidence favorable to the 

defendant. See Brady, 373 U.S. at 87. If the State suppresses such evidence, this violates 

due process regardless of whether the State acted in good faith or bad faith. Id. To 

establish a Brady violation, a defendant must demonstrate the existence of each of three 

necessary elements: (1) the State must have suppressed the evidence, either willfully or 

inadvertently, (2) the evidence at issue must be favorable to the accused, either because it 

is exculpatory, or because it is impeaching, and (3) prejudice must have ensued such that 

there is a reasonable probability that the result of the proceeding would have differed had 

the State disclosed the evidence to trial counsel. State v. Mullen, 171 Wn.2d 881, 895, 

259 P.3d 158 (2011). A defendant’s Brady claim fails if he or she fails to demonstrate 

any element. Id.

As to the first element, the State elicited testimony that Klepacki was wearing 

boots when Detective Dresback interviewed him. The State also admitted an exhibit that 

showed Klepacki wearing boots the night of his interview. The State did not suppress any 

evidence. We, therefore, reject Klepacki’s claim that the State committed a Brady

 4 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
No. 33983-1-111 

State v. Klepacki 

violation. 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrence-Berrey, A.CJ. 

j 

WE CONCUR: 

Siddoway, J. 1 Pennell, J. 

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