IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

 v.

WILLIAM LEWIS MARION,

Appellant.

DIVISION ONE

No. 79368-3-I

UNPUBLISHED OPINION

DWYER, J. — William Marion appeals from his convictions of assault in the 

first degree and assault in the second degree, both with deadly weapon 

enhancements. Marion’s primary arguments on appeal are that the trial court 

erred by (1) giving a first aggressor instruction to the jury, (2) excluding certain 

evidence regarding the character of the neighborhood where the assaults 

occurred, and (3) admitting video evidence of his show-up identification. Marion 

also advances numerous arguments in his statement of additional grounds. 

Because Marion does not establish an entitlement to relief on any of his claims, 

we affirm. 

I

On May 22, 2016, at approximately 10:00 p.m., William Marion waited at a 

bus stop in the Rainier Beach neighborhood of Seattle. Another individual, 

Lonzell Felder, was also at the bus stop. As Marion and Felder were waiting for 

a bus to arrive, Marion played music loudly over the speakers of his cell phone. 
No. 79368-3-I/2

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Marion also walked “back and forth” within several feet of Felder. Felder began

to feel uncomfortable because he did not know Marion and “it was late at night.” 

Felder told Marion to “back up” several times. According to Felder, Marion 

responded, “you want me to back up; you want me to back up?” Marion then 

pulled out a knife. 

Felder put his backpack in front of his chest because he “[d]idn’t feel safe.” 

Felder testified that he was afraid of the knife and felt threatened by Marion. 

Gary Fuller, an on-duty Metro bus driver, parked the bus he was driving at 

the bus stop and walked toward a restroom located nearby. According to Fuller, 

as he was approaching the restroom, Felder said to him, “you got to help me out” 

and “this guy’s got a knife, and he won’t leave me alone.” Fuller did not see the

knife and thought Marion and Felder were “goofing around.” However, Fuller 

noticed that Marion “had his hand in his pocket kind of—kind of strangely.” Fuller 

then went into the restroom for several minutes. 

After Fuller exited the restroom, Felder said to him, “you’ve got to help me. 

This guy’s got a knife, and he’s not going to leave me alone.” According to 

Felder, Fuller responded by saying that “some people deserve to get knocked 

[out].” However, Fuller denied saying this. 

According to Fuller, Marion started yelling that “he could go anywhere he 

wanted” and then walked into Fuller “like he was going to walk through me.” 

Marion then punched Fuller in the head and face and, according to Felder, “they 

started fighting normally [before] they fall [sic] to the ground.” While they were on 
No. 79368-3-I/3

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the ground, Marion took out the knife and stabbed Fuller numerous times. Felder 

then telephoned the police. 

De’Aris Lyles, a passerby, noticed the altercation between Marion and 

Fuller as he was crossing the street near the bus stop and “[saw] them pile over.” 

Lyles ran over to the bus stop. Felder informed him that Marion had a knife. 

Lyles testified that he “could see blood on the bus driver” and Marion was 

“snarling and . . . biting at the bus driver’s face,” saying, “I’m going to fuck you up, 

I’m going to fuck you up.” Lyles and Felder “were just screaming to let him go.” 

Marion and Fuller eventually separated and Marion “took off hightailing” 

and ran down an alleyway. After police officers arrived at the bus stop, Fuller, 

Lyles, and Felder provided a description of Marion to the officers. Shortly 

thereafter, an individual matching Marion’s description was detained by police 

officers. An officer noticed that Marion had blood on his lips. Police officers then 

placed handcuffs on Marion’s wrists and Marion expressed his belief that the 

stop was based on racial profiling. 

Both Felder and Lyles agreed to participate in a show-up identification and 

police officers drove them to the location where Marion had been detained. Lyles 

testified that he identified Marion as the individual who stabbed Fuller based on 

Marion’s face and clothing. During the show-up identification, Marion refused to 

turn his face toward Felder, so Felder was unable to make out his “full face.” 

Nonetheless, Felder identified Marion based on his clothing. Marion was then 

placed under arrest. 
No. 79368-3-I/4

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Fuller was treated at Harborview Medical Center. He had four stab 

wounds, bites on his head, and his shoulder was injured. Additionally, Fuller’s 

diaphragm was lacerated and his injured spleen had to be removed. He was 

hospitalized for six days. 

The State charged Marion with two counts of assault: assault in the first 

degree of Gary Fuller and assault in the second degree of Lonzell Felder, both 

with deadly weapon enhancements, “to-wit: a knife.” The case proceeded to trial. 

A mistrial was declared after deliberations resulted in a hung jury. The case went 

to trial again. The second trial ended in a mistrial after the prosecutor elicited an 

impermissible comment on Marion’s constitutional right to silence. At the 

conclusion of a third trial, a jury found Marion guilty on both counts as charged. 

The trial court imposed a sentence of 276 months of incarceration. 

Marion appeals. 

II

Marion contends that the trial court erred by giving a first aggressor 

instruction to the jury. According to Marion, the first aggressor instruction was 

not supported by any evidence that Marion initiated a provoking act toward Fuller 

before the actual assault and, thus, the instruction was not warranted. We 

disagree.

Whether sufficient evidence was adduced to warrant a first aggressor 

instruction is a question of law reviewed de novo. State v. Anderson, 144 Wn. 

App. 85, 89, 180 P.3d 885 (2008). Moreover, “when determining if the evidence 

at trial was sufficient to support the giving of an instruction, the appellate court is 
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to view the supporting evidence in the light most favorable to the party that 

requested the instruction.” State v. Wingate, 155 Wn.2d 817, 823 n.1, 122 P.3d 

908 (2005). 

A trial court does not err by giving a first aggressor instruction “[w]here 

there is credible evidence from which a jury can reasonably determine that the 

defendant provoked the need to act in self-defense.” State v. Riley, 137 Wn.2d 

904, 909-10, 976 P.2d 624 (1999). Further, “[t]he provoking act must be 

intentional.” State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990). Although 

we have previously expressed a bright-line rule that a provoking act cannot be 

the “actual assault,” Kidd, 57 Wn. App. at 100, our Supreme Court has recently 

clarified that this rule “cannot be applied in cases . . . where the defendant 

engaged in a course of aggressive conduct, rather than a single aggressive 

act.” State v. Grott, 195 Wn.2d 256, 271, 458 P.3d 750 (2020).1 

Marion contends that the first aggressor instruction was not justified 

because “[t]he two punches were an inextricable part of the final assault.” 

However, a jury could have reasonably determined that Marion engaged in a 

course of aggressive conduct that provoked any need for him to use force

against Fuller. Indeed, Fuller testified that, after he exited the restroom, Felder 

approached him, saying, “you’ve got to help me. This guy’s got a knife, and he’s 

 1 In Grott, the defendant, over the course of several minutes, fired 48 shots from a gun at 

an individual who was sitting in a car, pausing to reload multiple times. 195 Wn.2d at 262-63. 

During the trial, a witness “testified that [the defendant] fired several shots before [the victim] even 

realized [the defendant] was there.” Grott, 195 Wn.2d at 273. After the shooting, a loaded gun 

was discovered under the victim’s body. Grott, 195 Wn.2d at 263-64. The Supreme Court held 

that a first aggressor instruction was justified because the defendant “engaged in a course of 

aggressive conduct, firing 48 shots [from his gun] over the course of several minutes and pausing 

to reload multiple times.” Grott, 195 Wn.2d at 273.
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not going to leave me alone.” Then, according to Fuller, Marion started 

screaming, “I can go anywhere I want,” and walked toward Fuller “like he was 

going to walk through me.” After Marion walked into Fuller, Marion “threw up his 

hands and said, ‘Get your hands off me.’” Marion then punched Fuller twice in 

the “[f]ace and head.” According to Felder, Marion and Fuller “started fighting 

normally [before] they fall [sic] to the ground.” While they were on the ground, 

Marion stabbed Fuller four times with a knife. This evidence supports a view that 

Marion “engaged in a course of aggressive conduct, rather than a single 

aggressive act.” Grott, 195 Wn.2d at 271. 

Marion claims that he did not engage in a course of aggressive conduct 

because, unlike the altercation in Grott, which lasted several minutes, Marion’s 

altercation with Fuller “happened incredibly fast, in a manner of seconds.” 

However, it is immaterial that the altercation between Marion and Fuller may

have lasted for a short period of time. It is the course of conduct, not the length 

of time at issue, that our Supreme Court focused on in announcing the rule 

of Grott. Pursuant to that authority, the instruction was warranted.

The trial court did not err.

III

Marion asserts that the trial court erred by excluding (1) testimony of a 

Seattle firefighter that the Rainier Beach neighborhood had been nicknamed the 

“Knives and Guns Club,” (2) testimony of a Seattle police officer that the 

neighborhood was a “high crime and violent area” and that, in 2016, 81 violent 

crimes occurred in the neighborhood, (3) testimony from Felder that the area was 
No. 79368-3-I/7

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a “hot spot” and could be “a dangerous place for young, black men at night,” and 

(4) testimony from Lyles that “a lot of gang activity” occurred in the area and that 

“black young men can be targets.”2 Because this evidence was not relevant to 

whether Marion acted reasonably in using force against Fuller, the trial court did 

not err by excluding it from evidence.

The right to present a defense is guaranteed by both the United States 

and Washington Constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 

22. “A defendant’s right to an opportunity to be heard in his defense, including 

the rights to examine witnesses against him and to offer testimony, is basic in our 

system of jurisprudence.” State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 

(2010). However, [t]hese rights are not absolute.” Jones, 168 Wn.2d at 720. 

Indeed, “[d]efendants have a right to present only relevant evidence, with no 

constitutional right to present irrelevant evidence.” Jones, 168 Wn.2d at 720. 

A claim that evidentiary rulings violated a defendant’s constitutional right 

to present a defense are reviewed pursuant to a two-step process. State v. 

Arndt, 194 Wn.2d 784, 797-98, 453 P.3d 696 (2019). First, the challenged 

evidentiary rulings are reviewed under an abuse of discretion standard. Arndt, 

 2 The State contends that, contrary to Marion’s assertion, the trial court permitted Felder 

and Lyles to testify that Rainier Beach was a dangerous neighborhood. However, the trial court 

did not permit Felder and Lyles to testify specifically that Rainier Beach was a “hot spot,” had a lot 

of gang activity, and was dangerous for young black men. Prior to the third trial, the trial court 

ruled that “as far as the issue of whether the—this Court’s ruling on how much can come out 

about the dangerousness of the neighborhood, the information that was elicited during the first 

trial and that that is contemplated this time is essentially the same.” During the first trial, Marion 

questioned Felder about whether one would “be more on guard . . . in that area of town, knowing 

what you know about it,” and Felder responded, “Knowing what I know about it, [one] would.” 

Further, Lyles, upon being asked by Marion if he was “on edge” in the neighborhood, responded, 

“Me, not so much because I know the area, but if you weren’t from around there you probably 

would be.” Thus, although the trial court permitted Felder and Lyles to testify as to the 

dangerousness of the Rainier Beach neighborhood, the extent to which they could testify to the 

neighborhood’s character was limited.
No. 79368-3-I/8

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194 Wn.2d at 797. Then, if necessary, the rulings are reviewed de novo to 

determine whether they violated a defendant’s constitutional right to present a 

defense. Arndt, 194 Wn.2d at 797-98. 

Here, the trial court excluded the testimony from the firefighter and police 

officer because it did not “have any reason to think that the information . . . was 

information that was known to Mr. Marion at the time. And—and all that is 

relevant is what was known to him at the time.” Further, the trial court ruled that

Mr. Felder and Mr. Lyles[] may testify as to, similarly, things that 

were going on in their minds. What information they had that 

informed how they acted that night to describe the full scenario but 

not general testimony about the neighborhood from their 

perspective because, again, it’s not relevant.

Consistent with these rulings, the trial court both permitted Marion to 

testify that, in his perception, Rainier Beach was a dangerous neighborhood and 

admitted evidence that Marion’s jaw had previously been broken in the area. 

Marion does not contend that the evidence excluded by the trial court was 

known to him when he used force against Fuller. Rather, he asserts that this 

evidence was relevant to the objective portion of a claim of self-defense because 

the evidence tended to show “that the neighborhood was, in fact, dangerous.” 

Marion is wrong. 

“The use of force is lawful and justified where the defendant has a 

‘subjective, reasonable belief of imminent harm from the victim.’” Grott, 195 

Wn.2d at 266 (quoting State v. LeFaber, 128 Wn.2d 896, 899, 913 P.2d 369 

(1996), abrogated on other grounds by State v. O’Hara, 167 Wn.2d 91, 217 P.3d 

756 (2009)). As such, self-defense 
No. 79368-3-I/9

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incorporates both objective and subjective elements. The 

subjective portion requires the jury to stand in the shoes of the 

defendant and consider all the facts and circumstances known to 

him or her; the objective portion requires the jury to use this 

information to determine what a reasonably prudent person 

similarly situated would have done. 

State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997) (emphasis added).

In other words, to be material to a claim of self-defense, evidence must 

have a tendency to show what was known to the defendant when he or she used 

force. Because there was no evidence that Marion had knowledge of the 

information that was contained in the testimony excluded by the trial court, this 

information was immaterial to Marion’s self-defense claim.

Next, Marion asserts that the evidence tending to demonstrate that Rainier 

Beach was a dangerous neighborhood should have been admitted because the 

“evidence was akin to evidence of [a] victim’s propensity for violence.” Although 

“[e]vidence of a victim’s propensity toward violence that is known by the 

defendant is relevant to a claim of self-defense,” State v. Duarte Vela, 200 Wn. 

App. 306, 319, 402 P.3d 281 (2017), Washington courts have not permitted 

evidence of a neighborhood’s character to be used to establish a victim’s 

propensity for violence. Indeed, if a defendant could establish a victim’s 

propensity for violence merely by presenting evidence of a neighborhood’s 

character, people in certain neighborhoods would be afforded less protection 

under the law solely based upon the area in which they live, work, or happen to 

travel through. We decline to adopt a rule that would noxiously discriminate 

against individuals on this basis.
No. 79368-3-I/10

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Accordingly, the trial court did not err by excluding certain evidence that 

tended to show that Rainier Beach was a dangerous neighborhood.

IV

Marion contends that the trial court erred by admitting a video of his showup identification because the video was unduly prejudicial, showing him 

handcuffed, standing in a spotlight, and surrounded by police officers. 3 

Moreover, according to Marion, the video was only minimally relevant because 

his identity was not in dispute. We hold that the trial court did not err by admitting 

the show-up identification video into evidence.

 3 The State claims that Marion did not properly object to the show-up identification video 

because, at trial, he did not assert the specific ground that he now asserts as to why the video 

was inadmissible. Specifically, after the State moved to admit the video of Marion’s show-up 

identification into evidence, the following exchange occurred between Marion’s attorney and the 

trial court:

[Defense]: And we would object to hearsay and foundation, 

cumulativeness, overly prejudicial, and relevance.

The Court: Are these additional objections or not?

[Defense]: They’re—they’re the previous objections.

The Court: Okay. If—if you could clarify when you’re making additional 

objections, that would be helpful. Exhibit 1 is admitted.

According to the State, Marion’s attorney’s statement that he was making the “previous 

objections” refers to the objections raised during the second trial. At that trial, Marion did not 

object to the show-up identification video on the specific ground that it depicted him handcuffed, 

surrounded by police, and standing in a spotlight. However, Marion did raise this specific 

objection prior to the first trial:

The Court: . . . . Okay. Moving on. We have the 3.6 issue regarding the 

showup.

[Defense]: Defense is asking the court to exclude the identifications of 

Mr. Felder and Mr. Lyles at the showup . . . .

. . . .

When at the scene, Mr. Marion is handcuffed. He’s in front – he’s 

surrounded by four officers that are in uniform. He is next to a uniformed, 

marked patrol car. There’s a spotlight that is shining directly on him and on the 

face.

Thus, it appears that the trial judge and defense counsel may have been “talking past 

one another” in the quoted exchange from the third trial. While the trial judge may have 

considered the “previous objections” to be those interposed during the second trial, as the State 

contends, it is equally possible that defense counsel interpreted the question as pertaining to all

previous objections—those raised during or before either of the two prior trials. There is no way 

for us to resolve this ambiguity. Accordingly, we treat the objection as being properly preserved.
No. 79368-3-I/11

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“[A] trial court’s evaluation of relevance under ER 401 and its balancing of 

probative value against prejudicial effect . . . under ER 403 [are reviewed] with a 

great deal of deference, using a ‘manifest abuse of discretion’ standard of 

review.” State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995)

(quoting State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994)). Although, 

“[w]hen a trial court’s exercise of its discretion is manifestly unreasonable or 

based upon untenable grounds or reasons, an abuse of discretion exists.” State 

v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).

Here, the show-up identification video was relevant to whether Marion was 

properly identified by Lyles and Felder as the individual who stabbed Fuller. 

Indeed, after Marion was detained by police officers, both Lyles and Felder 

agreed to participate in a show-up identification. During the show-up 

identification, Felder was able to see Marion’s clothing but could not make out his 

“full face.” A police officer “tr[ied] to get [Marion] to face the police car so [Felder] 

could see him, and [Marion] would turn to face away.” Thus, the video was 

relevant to whether Lyles and Felder had a proper opportunity to observe and 

identify Marion as the individual who assaulted both Felder and Fuller.

Moreover, contrary to Marion’s assertion, Marion’s identity was put at 

issue during the trial. Notably, Marion’s attorney questioned Felder regarding his 

poor eyesight and ability to identify Marion during the show-up identification:

Q I want to go back to your eyesight, Mr. Felder. You said that 

you had pretty bad eyesight, right?

A Uh-huh.
No. 79368-3-I/12

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Q And you don’t wear any glasses or contact lenses; is that 

correct?

A No.

Q And you had some difficulty when you were doing the showup identification seeing the individual, right?

A Uhm, he wouldn’t turn his full face, so, I couldn’t, like, make 

out his full face.

Q Okay. And, they had lights on him; is that right?

A Yes.

Q And you said in direct testimony that you never actually saw 

his full face, right?

A Yes.

Q So, you were making the identification based on the 

clothing—

A Yes.

Shortly thereafter, Marion’s attorney also questioned Felder about a 

Facebook post in which Felder described Marion as potentially being Mexican 

even though Marion is Black:

Q You also posted on Facebook the night of this incident, too, 

right?

A Uhm, yes.

. . . .

Q Okay. And, on your postings—well, Mr. Marion to you, when 

you had to describe him, do you recall—do you recall 

describing him you thought as maybe Mexican?

A Uhm, yeah, I—I think I did.
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Clearly, Marion questioned Felder concerning his ability to identify “the 

individual” detained by police officers during the show-up identification. As such, 

Marion’s identity as the perpetrator was at issue at trial. 

Nonetheless, according to Marion, the trial court erred by admitting the 

show-up identification video because it was unduly prejudicial. In support of his 

argument, Marion cites to two published decisions that involved defendants who 

were ordered by the trial court to be handcuffed or shackled at or prior to trial. In 

particular, Marion cites to the Supreme Court’s opinion in State v. Finch, 137 

Wn.2d 792, 842, 975 P.2d 967 (1999), wherein the issue was whether a trial 

court abused its discretion by ordering a defendant to be shackled during his trial. 

In addition, Marion cites to Division Three’s opinion in State v. Early, 70 Wn. App. 

452, 462, 853 P.2d 964 (1993), in which the court stated that, during a trial, 

“handcuffing should not be permitted except to either prevent escape, prevent 

the accused from injuring others or to maintain a quiet and peaceable trial.”

Marion asserts that, although he “was not handcuffed or restrained during 

trial, . . . the effect was the same when the trial court admitted the video of [his] 

showup identification.” Not so. Neither of the opinions cited by Marion indicate 

that a trial court errs by admitting evidence showing a defendant handcuffed after 

being detained by police officers. Indeed, in Early, Division Three held that a trial 

court did not err by refusing to order a mistrial where the jury panel saw the 

defendant in handcuffs during jury selection. 70 Wn. App. at 462. Moreover, as 

the Supreme Court explained in Finch, “[w]hen the court allows a defendant to be 

brought before the jury in restraints the ‘jury must necessarily conceive a 
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prejudice against the accused, as being in the opinion of the judge a dangerous 

man, and one not to be trusted, even under the surveillance of officers.’” 137 

Wn.2d at 845 (emphasis added) (quoting State v. Williams, 18 Wash. 47, 51, 50 

P. 580 (1897)). To the contrary, in this case, the show-up identification video 

gave no indication of the trial judge’s opinion as to whether Marion was 

dangerous. The cases relied on by Marion are entirely inapposite.

We have previously explained that a jury’s knowledge of a defendant’s

custody status does not prejudice the defendant in the same way that being 

shackled in front of the jury during a trial might do so:

[A]lthough references to custody can certainly carry some 

prejudice, they do not carry the same suggestive quality of a 

defendant shackled to his chair during trial. Jurors must be 

expected to know that a person awaiting trial will often do so in 

custody. . . . In this case, a reasonable juror would know that a 

defendant in a first degree murder trial was not likely to be released 

pending trial unless he paid a substantial amount of bail, regardless 

of whether he was later found to be innocent.

State v. Mullin-Coston, 115 Wn. App. 679, 693, 64 P.3d 40 (2003), aff’d, 

152 Wn.2d 107, 95 P.3d 321 (2004).

Similarly, jurors should be expected to know that a person, upon being 

detained for the suspected stabbing of another, will likely be placed in handcuffs

by the police.

The trial court did not abuse its discretion by admitting the video into 

evidence.

V

Marion also raises numerous claims of error in his statement of additional 

grounds. None of these claims have merit.
No. 79368-3-I/15

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A

Marion first asserts that, after the second trial ended in a mistrial, the trial 

court erred by denying his motion to dismiss based on double jeopardy and 

governmental misconduct under CrR 8.3(b). We disagree.

During the second trial, Marion moved for a mistrial because the 

prosecutor commented on his right to remain silent. The trial court granted the 

motion. Subsequently, Marion filed a motion to dismiss based on double 

jeopardy and governmental misconduct under CrR 8.3(b). The trial court denied 

that motion.

“‘Only where the governmental conduct in question is intended to “goad” 

the defendant into moving for a mistrial may a defendant raise the bar of double 

jeopardy to a second trial after having succeeded in aborting the first on his own 

motion.’” State v. Cochran, 51 Wn. App. 116, 119, 751 P.2d 1194 (1988) 

(quoting Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 72 L. Ed. 2d

416 (1982)). “This standard merely calls for the court to make a finding of fact by 

inferring the existence or nonexistence of intent from objective facts and 

circumstances.” Cochran, 51 Wn. App. at 119. Furthermore, “[a] determination 

of whether certain actions constitute intentional misconduct is a finding of fact 

which will not be disturbed unless it is clearly erroneous.” Cochran, 51 Wn. App. 

at 120. 

The trial court’s ruling met this standard. In particular, the trial court found 

that “[t]he prosecutor’s line of questioning was not made in bad faith, was neither 

flagrant nor ill intentioned, and was not an effort to goad defense into moving for 
No. 79368-3-I/16

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mistrial.” Indeed, after the mistrial was declared, the prosecutor informed the trial 

court that he, in good faith, believed in a different interpretation than the trial 

court of the case law regarding the right to remain silent. The trial court accepted 

this explanation as truthful. Thus, the court’s finding of fact was supported by the 

record.

The trial court also did not err by denying Marion’s motion to dismiss 

under CrR 8.3(b). Under that rule, a trial court “may dismiss any criminal 

prosecution due to arbitrary action or governmental misconduct when there has 

been prejudice to the rights of the accused which materially affect the accused’s 

right to a fair trial.” A trial court’s decision on a motion to dismiss under CrR 

8.3(b) is reviewed for manifest abuse of discretion. State v. Moen, 150 Wn.2d 

221, 226, 76 P.3d 721 (2003). Here, the trial court concluded that there was no 

governmental misconduct because the “State’s actions were neither illintentioned, nor made in bad faith.” 

The trial court’s ruling was supported by the record. Thus, the trial court 

did not err by denying Marion’s motion to dismiss based on a violation of CrR 

8.3(b).

B

Marion next contends that his right to a jury of his peers was violated 

because there was not a single African-American in the jury pool. However, 

“[t]he absence of any particular group of people on a jury does not violate a 

defendant’s right to a jury of his peers, unless there are circumstances indicating 

purposeful discriminatory exclusion.” State v. Barron, 139 Wn. App. 266, 280, 
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160 P.3d 1077 (2007). Because Marion cites to no evidence of purposeful 

discriminatory exclusion, he does not establish the claimed error.

C

Marion next asserts that the trial court erred by denying his motion for a 

continuance before the third trial commenced. Marion is wrong.

A trial court’s decision to grant or deny a motion for continuance is 

reviewed for abuse of discretion. State v. Downing, 151 Wn.2d 265, 272, 87 

P.3d 1169 (2004). Prior to the third trial, Marion’s attorney moved for a 

continuance, explaining that “Mr. Marion’s having a difficult time trying to process 

everything. He is very concerned. He feels like he’s kind of railroaded through 

the system, has not had a chance to really understand what everything means.” 

The trial court denied the motion:

I am not hearing a compelling reason to continue the case at this 

point in time. Everybody was ready a week ago, more than a week 

ago. Really nothing has changed other than we started a trial and 

then ended it. I would like to complete jury selection today. And if 

there is something more specific, I guess I would always be willing 

to hear it. But, I’m not hearing a—a reason to continue. And—and 

of course there is reason on both sides for the parties to want the 

matter to be resolved. And it has been over two years. So, at this 

point in time I’m going to deny the motion.

The trial court’s decision was not manifestly unreasonable or based on 

untenable grounds or reasons. See Stenson, 132 Wn.2d at 701. Accordingly, 

the trial court did not err by denying Marion’s motion for a continuance.

D

Marion next contends that the trial court erred by permitting an individual

other than Lyles to read the testimony that Lyles gave during the first trial. 
No. 79368-3-I/18

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According to Marion, this testimony was hearsay and the jury was not able to 

observe Lyles’ body language in order to gauge the credibility of the testimony. 

However, Lyles’ testimony was properly admitted under ER 804(b)(1),4 which 

provides an exception to the hearsay rule for certain former testimony. Thus, the 

trial court did not err by admitting Lyles’ testimony. Moreover, the trial court did 

not err in exercising control over the mode of the evidence’s presentation. See

ER 611(a); State v. Hakimi, 124 Wn. App. 15, 19, 98 P.3d 809 (2004) (mode of 

giving testimony within discretion of trial judge).

E

Marion next avers that Lyles’ statements that Marion was the “aggressor” 

in the altercation between Marion and Fuller constituted improper opinion 

testimony.5 In support of his argument, Marion asserts that “[n]o witness, lay or 

expert, may testify to his opinion as to the guilt of a defendant, whether by direct 

statement or inference.” State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 

(1987). However, “opinion testimony is not improper when it does not directly 

comment on the defendant’s guilt, is otherwise helpful to the jury, and is based 

on reasonable inferences from the evidence.” State v. Yarbrough, 151 Wn. App. 

66, 93, 210 P.3d 1029 (2009). 

 4 ER 804(b)(1) provides that the following evidence is admissible when a hearsay 

declarant is unavailable:

Former Testimony. Testimony given as a witness at another hearing of the same 

or a different proceeding, or in a deposition taken in compliance with law in the 

course of the same or another proceeding, if the party against whom the 

testimony is now offered, or, in a civil action or proceeding, a predecessor in 

interest, had an opportunity and similar motive to develop the testimony by direct, 

cross, or redirect examination.

5 For example, Lyles testified that “it was easy to tell the Defendant was the aggressor.”

“Well, [Marion] was definitely the aggressor,” and “You could tell [Fuller] wasn’t the aggressor in 

the situation.” 
No. 79368-3-I/19

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Lyles first noticed the altercation between Marion and Fuller when he was 

crossing the street and “[saw] them pile over.” Lyles then observed blood on 

Fuller, Marion snarling and biting at Fuller’s face, and Fuller asking for help. 

Given Lyles’ observations, his comments that Marion was the aggressor did not 

directly comment on Marion’s guilt, were helpful to the jury, and were based on 

reasonable inferences from his personal observations. There was no error in 

their admission.

F

Marion next argues that the trial court erred by denying his request to use 

a proposed juror questionnaire. In his trial brief, Marion argued that the 

questionnaire was appropriate because “many people are not inclined to share 

their views regarding violence, self-defense and race.” The trial court denied 

Marion’s request. “[A]bsent an abuse of discretion and a showing that the rights 

of an accused have been substantially prejudiced, a trial court’s ruling on the 

scope and content of voir dire will not be disturbed on appeal.” State v. Davis, 

141 Wn.2d 798, 826, 10 P.3d 977 (2000). Marion fails to demonstrate how the 

trial court’s decision was an abuse of discretion or how it substantially prejudiced 

his rights. No error is established.

G

Marion next asserts that the trial court should have dismissed an 

unidentified juror who may have heard the prosecutor speak to a witness outside

of the courtroom. Appellate courts “review[] the trial court’s determination of 

whether to dismiss a juror for abuse of discretion.” State v. Depaz, 165 Wn.2d 
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842, 852, 204 P.3d 217 (2009). Here, the prosecutor informed the trial court that

an unidentified juror may have overheard the prosecutor as he was speaking to a 

witness outside of the courtroom. The trial court then asked the entire jury 

whether any of the jurors overheard the prosecutor speaking to the witness. No 

juror answered in the affirmative. The trial judge acted properly. There was no 

abuse of discretion.

H

Marion next contends that the trial court erred by denying his request to 

question Fuller about a Metro complaint that may have been filed against him.6 

We disagree.

“This court reviews the trial court’s determination of the relevance of prior 

acts for abuse of discretion.” State v. Sexsmith, 138 Wn. App. 497, 505, 157 

P.3d 901 (2007).

At trial, Marion argued that the Metro complaint filed against Fuller was 

relevant to whether Fuller was aware of a Metro policy that “they can’t threaten to 

have contact or have contact with individuals.” In turn, Marion asserted that this 

was relevant to the question of whether Fuller threatened Marion by stating that

“some people deserve to get knocked [out].”7 The trial court denied Marion’s 

request to question Fuller about the Metro complaint but permitted Marion to 

 6 According to Marion’s defense attorney, Fuller, during a pretrial interview, indicated that 

a bus passenger had filed a Metro complaint against him for grabbing the passenger’s arm after 

the passenger had taken another individual’s phone. 7 In his statement of additional grounds, Marion also claims that Fuller lied when he 

denied making any statements to the effect that Marion deserved to get knocked out. However, 

“[q]uestions of credibility are left to the trier of fact and will not be overturned on appeal.” State v. 

Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998). Thus, assuming that Marion assigns error to 

Fuller’s testimony, Marion does not establish an entitlement to relief.
No. 79368-3-I/21

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question Fuller about his knowledge of the Metro policy. In doing so, the trial

court reasoned that the evidence of the Metro complaint against Fuller was

inadmissible as a prior act under ER 404(b) and that its relevance, if any, was 

outweighed by its prejudicial effect. The trial court did not abuse its discretion by 

denying Marion’s request to question Fuller about a Metro complaint that was 

potentially filed against him, especially given that the court allowed the witness to 

be questioned regarding his knowledge of the policy at issue. There was no 

error.

I

Marion next avers that the prosecutor improperly stated that Marion was 

the only person with a deadly weapon during the altercation with Fuller.

8 This 

was improper, according to Marion, because Fuller’s hands were deadly 

weapons and Marion’s knife—which had a three-inch blade—was not a deadly 

weapon. We disagree.

By statute,

“Deadly weapon” means any explosive or loaded or unloaded 

firearm, and shall include any other weapon, device, instrument, 

article, or substance, including a “vehicle” as defined in this section, 

which, under the circumstances in which it is used, attempted to be 

used, or threatened to be used, is readily capable of causing death 

or substantial bodily harm. 

RCW 9A.04.110(6).

Because hands are not a weapon, device, instrument, article, or 

substance, they need not be considered to be deadly weapons. On the other 

 8 Marion does not cite to any portion of the record wherein the prosecutor made such a 

statement. In any event, had the prosecutor made such a statement, it would not have been 

improper.
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hand, a knife with a three-inch blade might, under certain circumstances, be a 

deadly weapon because it could be used in a manner capable of causing death 

or substantial bodily injury. No error is shown.

J

Marion next contends that the trial court’s instructions on self-defense 

misstated the law insofar as they did not state that the jury could consider 

Marion’s subjective impressions of the facts and circumstances. However, the 

trial court’s instructions clearly provided that a defendant is entitled to act on 

appearances in defending himself:

A person is entitled to act on appearances in defending 

himself, if he believes in good faith and on reasonable grounds that 

he is in actual danger of injury, although it afterwards might develop 

that the person was mistaken as to the extent of the danger. Actual 

danger is not necessary for the use of force to be lawful.[9]

Accordingly, the trial court did not fail to instruct that a person is entitled to 

act on appearances.

VI

Finally, Marion asserts that cumulative error entitles him to a new trial. 

“The cumulative error doctrine applies when several trial errors occurred and 

none alone warrants reversal but the combined errors effectively denied the 

defendant of a fair trial.” State v. Jackson, 150 Wn. App. 877, 889, 209 P.3d 553 

 9 This instruction followed the Washington Pattern Jury Instruction:

A person is entitled to act on appearances in defending [himself] [herself] 

[another], if [he] [she] believes in good faith and on reasonable grounds that [he] 

[she] [another] is in actual danger of injury, although it afterwards might develop 

that the person was mistaken as to the extent of the danger. Actual danger is not 

necessary for the use of force to be lawful.

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.04 (4th ed. 

2016).
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(2009). Because multiple trial errors did not occur, the cumulative error doctrine 

does not apply.

Affirmed.

WE CONCUR: