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STATE OF WASHINGTON, Respondent/Cross Petitioner,
v. KISHA LASHAWN FISHER, Petitioner, and COREYTROSCLAIR, Cross Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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No. 91438-9

EnBanc

Filed

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MADSEN, C.J.-KishaFisher and Corey Trosclair were tried as codefendants for the felony murder ofLeonard Masten. Priorto trial, Fishermade out-of-court statements that incriminatedboth herselfand Trosclair. After denying both defendants' motions to sever, the State offeredFisher's statement at trial as evidence against her. Trosclair challenges the sufficiency ofthe redactions in protecting his confrontation clause rights under the SixthAmendmentto the federal constitution. Fisher challenges the trial court's refusal to provide thejury with herrequested affirmative defensejury instruction. We hold that the redactions violated Trosclair's confrontation clause rights, butthat the errorNo. 91438-9

was harmless. We also hold that the trial court erred in not giving the affirmative defense jury instruction. FACTS On the evening ofJanuary 16, 2011, Masten was shot and killed at his apartment complex. Earlierthat day, Masten sold cocaine to Trosclair and Mario Steele. Steele lived with his girlfriend, Fisher, who was also Trosclair's sister. Trosclair and Steele 

### did not like the quality ofMasten's cocaine, and they decided they would rob Masten to get their money back. Fisher overheard the men discussing the robbery and assumed they mightrob Masten later that evening. Fisher then called Masten to set up a second drug deal for Steele and Trosclair. Trosclair and Steele went to Masten's apartment complex and, after a confrontation, shot him. The police investigation led them to Trosclair, Fisher, and Steele. The police obtained Trosclair's cell phonerecords, which showed he made calls to Masten while
near Masten's apartment. There was also cell phone evidence showing that Fisherplaced
athree-way call between Trosclair and Masten minutes before Masten was shot. And two eyewitnesses at the scene identified Trosclair as the perpetrator. Both Fisher and Trosclair spoke with police about Masten's death. In her first interview, Fisher admitted she calledMasten to set up a drug deal. In her second interview, Fisher admitted she overheard Steele discuss robbing Masten with someone else. Trosclairtold police that he was not in Lakewood onthe day ofMasten's death.

2No. 91438-9
Afterpolice arrested Trosclair, he confessed his involvement in Masten's death to hisjail cellmate. Fisher and Trosclair were both charged with first and second degree felony murder with firearm enhancements. 1 They were triedtogether as codefendants after the trial court denied their motion to sever under CrR4.4(c). The State agreed to redactportions ofFisher's statementto police to remove references to Trosclair. The court approved redactions that replaced Trosclair's name with "the first guy." Attrial, one ofthe State'switnesses read Fisher's redacted statementto thejury. 2 This redacted statementwas accompanied by a limiting instruction for thejuryto use the statement as evidence only againstthe speaker, Fisher, and not as evidence against codefendant Trosclair. Neither Trosclair nor Fisher testified. Atthe close ofevidence, Fisher sought to have an affirmative defense to felony murder included in thejury instructions, on the grounds that she was unarmed and
unaware thatthe otherparticipants were armed and intendedto engage in conduct likely to cause serious injury. She had not called any witnesses in her defense. The trial court denied this request. Thejury found Fisher and Trosclair guilty ofall charges. The trial court dismissed the second degree murder charges and sentenced Fisherto 350 months in custody and Trosclairto 553 months in custody.

1 Steele pleaded guilty to first degree manslaughter and first degree robbery and was sentenced to 125 months in prison on August 31, 2012. He did not testify at Fisher and Trosclair'sjointtrial. 2 Thejury was not given ahard copy ofFisher's redacted statement.

3No. 91438-9
Fisher and Trosclair appealed their convictions. The Court ofAppeals affirmed. 

### State v. Fisher, 184 Wn. App. 766, 338 P.3d 897 (2014). The court found that the State's redactions to Fisher's statement violated Trosclair's Sixth Amendment confrontation rights butthe error was harmless. 

### !d. at 776. In the unpublished part ofits opinion, the Court ofAppeals held thatFisher did not present sufficient evidence to supporther requested affirmative defense. 

### State v. Fisher, No. 43870-4-II, slip op. (unpublished portion) at 27 (Wash. Ct. App. Dec 2, 2014). The State petitioned for review ofthe court's holding on Trosclair's confrontation rights. Fisherpetitioned for review ofthe court's affirmative defense holding. We granted review ofboth. 

### State v. Fisher, 183 Wn.2d 1024, 355 P.3d 1153 (2015); 

### State v. Fisher, 183 Wn.2d 1024, 355 P.3d 1154 (20 15). ANALYSIS Trosclair The State challenges the Court ofAppeals' holding that the redactions to Fisher's statement were insufficient and therefore violated Trosclair's confrontationrights under the Sixth Amendment. 

### Fisher, 184 Wn. App. at 776. We review alleged confrontation clause violations de novo. 

### State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009). The confrontation clause ofthe Sixth Amendmentprovides, "In all criminalprosecutions, the accused shall enjoy the right
...to be confronted with the witnesses against him." U.S. CONST. amend. VI. Confrontation typically occurs through cross-examination ofthe speakerregarding the out-of-court statement. However, when the speaker is a

4No. 91438-9 codefendant, a conflict may arise betweenthe defendant's Sixth Amendmentrights and a codefendant's Fifth Amendmentright not to testify. U.S. CONST. amend. V. The United States Supreme Court addressed this conflict in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The Courtheld that when
a nontestifying codefendant's out-of-court statement implicating the defendant is admitted in ajointtrial, the defendant's confrontation clauserights are violated. 3 Id. at 128. However, in Richardson v. Marsh, the Court clarified thattheprotections ofBruton do not apply unless the codefendant's statements facially incriminatethe defendant. 481 U.S. 200,211, 107 S. Ct. 1702,95 L. Ed. 2d 176 (1987). Therefore, we must answer the question ofwhetherFisher'sreferences to Trosclair, redacted by the State to read "the first guy," facially incriminate him. Ifthey do not, then noBruton violationhas occurred. Marsh and Grayv. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140L. Ed. 2d294 (1998), guide our analysis. Marsh involved ajointtrial ofrespondent Marsh andher codefendant, Williams. 481 U.S. at 203. The State introduced Williams' redacted confession against Williams, andthejudge gave thejury a limiting instruction notto use

3 This court recently addressed the continued vitality ofthe Bruton doctrine as applied to nontestimonial statements. State v. Wilcoxon, 185 Wn.2d 324,
_ P.3d
_ (2016) (plurality opinion). The issue there was whether, in light ofCrawfordv. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) and Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Bruton doctrine applied to nontestimonial statements. Wilcoxon, 185 Wn.2d at 332-33. Aplurality ofthe court held that "when an out-of-court statement made by a nontestifying codefendant is nontestimonial, Bruton is inapplicable because such statements are outside the scope ofthe confrontation clause." Id. at 334. Here, the State does not argue that Fisher's statements were nontestimonial. Rather, the issue is whether Fisher's testimonial statements were sufficiently redacted so as to not implicate Bruton. Wilcoxon, therefore, is not relevant to our analysis inthis context.
5No. 91438-9
Williams' confession against Marsh. 

### !d. at 204. The issue was whether

### Bruton's protections apply when a "codefendant's confession is redactedto omit any reference to the defendant, butthe defendant is nonetheless linkedto the confessionby evidence properly admitted againsthim attrial." 

### !d. at202. The Courtheld

### Bruton's protections did not apply because the "confessionwas redacted to omit all reference to respondentindeed, to omit all indicationthat 

### anyone otherthan [a namedthirdperson] and Williams participated inthe crime." 

### !d. at 203. The defendant was linked to the crime only through inferences thejurymade as evidence was presented. 

### Id. at 208. Following 

### Marsh, "admission ofa nontestifying codefendant's confession with a proper limiting instruction" must be "redactedto eliminate not only the defendant's name, but any reference to her existence." 

### ld. at 211. The Court returned to the issue ofredactions in 

### Gray and further refined the parameters of

### Bruton. In 

### Gray, the redactions at issue substituted blank spaces orthe word "'deleted"' for defendant Gray's name. 523 U.S. at 188. The Courtheld thatthis "so closely resemble[d) 

### Bruton's unredacted statements" so as to fall within

### Bruton's protective rule. 

### !d. at 192. Central to the Court's holding was the fact thatthejury will "oftenrealize that the confession refers specifically to the defendant." 

### Id. at 193. The Court explained: Ajuror somewhat familiar with criminal law wouldknow immediately that the blank, in thephrase "1, Bob Smith, along with , robbed thebank," refers to defendant Jones. Ajurorwho does notknowthe law andwho therefore wonders to whomthe blank mightrefer need only lifthis eyesto Jones, sitting at counsel table, to find what will seemthe obvious answer, at least ifthejurorhears thejudge's instruction notto consider the confession

6No. 91438-9

as evidence against Jones, for that instruction will provide an obvious reason for the blank. A more sophisticatedjuror, wondering ifthe blank refers to someone else, might also wonder how, ifit did, the prosecutor could argue the confession is reliable, for theprosecutor, after all, has been arguing that Jones, not someone else, helped Smith committhe crime. 

### !d. The Courtthen clarified its position on inferential incrimination, stating that "inferencepure and simple cannotmake the critical difference" and that 

### "[Marsh] must depend in significantpartupon the 

### kind of, not the simple 

### fact of, inference." 

### !d. at 195- 96. Thepossible inferences to be made in 

### Gray involved statements that "despite redaction, obviously refer[ed] to someone, often obviously the defendant" and involved "inferences ajury ordinarily could make immediately, even were the confessionthe very first item introduced at trial." 

### !d. at 196. Following

### Marsh and 

### Gray, the issue became exactly which redaction ortype of redactions were appropriate. 

### Marsh left open the question ofwhether the use ofneutral pronouns may be used instead ofa blank space orthe word "deleted" and still satisfy 

### Bruton. Marsh, 481 U.S. at 211 n.5 ("We express no opinion onthe admissibility ofa confession in whichthe defendant's name has been replaced with a symbol or neutral pronoun."). Later, dicta in 

### Gray raised a question about whether neutral pronouns are sufficient to satisfy 

### Bruton whenthe majority wondered why the confession could not have been altered to read, "Me, and a few other guys."4 

### Gray, 523 U.S. at 192. Some courts have interpreted this query to mean that a redaction using a neutral pronoun necessarily satisfies

### Bruton. See, e.g., UnitedStates v. Winston, 55 F. App'x 289, 294
4 It should be noted that in 

### Gray, the phrase "afew other guys" was contained in the original statement and was not areplacementfor more specific language.

7No. 91438-9 (6th Cir. 2003) ("several ofour sister circuits have noted that aBruton violation can be avoided by replacing the co-defendant's name with aneutral pronoun or other generalized phrase"). Butsee UnitedStates v. Gonzalez, 183 F.3d 1315, 1322 (11th Cir. 1999) (holding that a redacted confession implicating aprecise number ofthe confessor's codefendants violated the confrontation clause); UnitedStates v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999) (holding that use of'"someone"'violated the confrontation clause). Neither the Supreme Court nor this court has addressed this question, but our Court ofAppeals has. In State v. Vannoy, in ajointtrial ofthree defendants, where the State introduced two codefendants' confessions admitting that "we" saw a good service station to rob, "we"pulled around the corner, and "we" got out ofthe car, the courtheld that itwas improper to admit the statements against the third codefendantbecause ajury could "readily conclude that [the defendant] was included in the 'we's' ofthe codefendants' statements." 25 Wn. App. 464,473-75, 610 P.2d 380 (1980).5 Similarly, the Court ofAppeals has rejected the use ofan "other guy" redaction where only two accomplices committed the crime and only two defendants were ontrial. State v. Vincent, 131 Wn. App. 147, 154, 120 P.3d 120 (2005). In contrast, in State v. Medina, the court approved the admission ofthe codefendant's statementbecausethe redactions
were so varied ('"other guys,' 'the guy,' 'aguy,' 'one guy,' and 'they"') among six possible accomplices that itwas impossible to clearly infer that one codefendant's

5Although Vannoy was decided priorto Marsh and Gray, its reasoning remains sound.
8No. 91438-9
statementreferred to either the appellant or the other codefendant. 112 Wn. App. 40, 51, 48 P.3d 1005 (2002). And in State v. Cotten, the court approved the admission ofthe codefendant's statementbecause it did not implicate or acknowledge the presence ofa coconspirator. 75 Wn. App. 669, 690, 879 P.2d 971 (1994). We agree with our Court of Appeals thatthe exact form ofthe redaction is not dispositive. Rather, underMarsh and Gray, the question is whether the redaction obviously refers to the defendant. We decline to adopt the bright line rule ofsome circuit courts that a neutral pronoun always satisfies Bruton and instead hold that whatever the form ofthe redaction, itmustbe clearthatthe redaction does not obviouslyreferto the defendant. Applying the rule to this case, while "the first guy" is not an obvious redaction and does not implicate Trosclairby name, it nonetheless obviously refers to Trosclair. Before hearing Fisher's statement, thejury !mew that the codefendants were Fisher and Trosclair. Fisher's statements implicate three people: Steele, "the first guy," and a man from California. Steele is referenced by name throughout Fisher's interview. Steele is obviously not the name ofFisher's codefendant. Steele is also notthe man from California. The question, then, is whether Fisher's codefendant is the man from California or "the first guy?" Fisher stated that she had not seen the man from California before the day ofthe murder and had not seen him since. Most ofFisher's statements regarding the man from Californiapertain to the drug deal that had taken place earlier in

9No. 91438-9
the day. 6 Itis unclear whether or not the man from Californiawas involved in the later drug deal which led to the murder. Her statements also reveal that she knows Steele and "the first guy" were already in police custody. Steele and "the first guy" had been arrested, the man from California has not. This eliminates the man from California as her codefendant. The only possiblepersonremaining from the three alleged coconspirators who could be "the first guy" was her codefendant, Trosclair. In short, thejury wouldbe able to discern to whom "the first guy"refers "even were the confession the very first item introduced attrial."7 

### Gray, 523 U.S. at 196. What is also particularly troubling is that the codefendant's first name, "Corey,"
was used twice in Fisher's statements and put before thejury. 14 Verbatim Tr. of Proceedings (VTP) at 1632. Granted, it appears the court and Trosclair's attorney had agreed to the use ofhis name prior to trial, and Trosclair's name was used not directly in connection with the robbery butto establish that both Steele and Trosclairknew the victim had told otherpeople that Fisher was aprostitute. 

### !d. at 1631-32. Even so, it makes it more likely thatthejury would conclude "the first guy" referred to Trosclair. The State argues that 

### State v. Larry, 108 Wn. App. 894, 34 P.3d 241 (2001), dictates a different result. In

### Larry, the codefendant's confession includedreferences to

6The State elicitedtestimony from Fisher regarding the physical characteristics ofthe man from California. He is a tall, slim, dark-skinned blackman-"like basketball player type slim." 14 Verbatim Tr. ofProceedings (Aug. 8, 2012) at 1613.1tis unclear from the record what Trosclair's physical characteristics are, but ifhe is anything but a tall, slim, dark-skinned black man, then the man from Californiawas most certainly notFisher's codefendant. 7 The State'stheory throughout the case was thattwo people, Steele and Trosclair, committed the murder.
10No. 91438-9
another person ('"he,"' "'the driver"') who participated in the robbery and shooting. 

### I d. at 904 n.4. The court appears to hold that the statements satisfiedBruton because three people were present and therefore the statement did not obviously implicate the codefendant. Jd. at 905-07. However, only two people committedthe crime, and the third person was the victim. Id. Anyreference to the other person, even ifreferred to as "he," obviously incriminated the defendant since there were only two perpetrators and two defendants. To the extentLarryholds thatBruton requires the redaction only not specifically namethe defendant and notbe an obvious deletion, itis incorrect and we disapprove it. Id. at 905. Marsh and Gray require that the redaction omitthe existence ofanyone other than the codefendant. Applying this standard, we conclude that the use of"the first guy" as a replacement for Trosclair's name in Fisher's statement implicates Trosclair and thatthe admission ofFisher's statements during herjointtrial with Fisher amounted to constitutional error. We now must determine whether that error was harmless. Confrontation clause violations are subject to a harmless error analysis. State v. Lui, 179 Wn.2d457, 495, 315 P.3d 493, cert. denied, 134 S. Ct. 2842 (2014). An error is harmless ifwe are persuadedbeyond areasonable doubt thatthejury would have reached the same result in absence ofthe error. State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007). The test is whether the untainted evidence was so overwhelming that it necessarily leads to a finding ofguilt. Lui, 179 Wn.2d at 495. Here, the untainted evidence against Trosclair was overwhelming. Trosclair related the murder to his

11No. 91438-9
cellmate in detail. An eyewitness identified Trosclair in a photo lineup as one ofthe perpetrators atthe scene. Another eyewitness identifiedhim as the perpetrator with a gun. Cell phone records placed Trosclair with Steele at the scene and showed Trosclair contacted Masten moments before the shooting. We conclude that the confrontation clause error was harmless beyond areasonable doubt. Fisher Fisher challenges the Court ofAppeals' unpublished decision affirming the trial court's refusal to instruct thejury on her affirmative defense. During trial, Fisher requested that Washington Pattern JuryInstruction 19.01 be given to thejury. 6A WASHINGTON PRACTICE: WASHINGTON PATTERNJuRY INSTRUCTIONS: CIVIL 19.01 (1997) (WPI). WPI 19.01 is based on the affirmative defense to felony murder found in RCW 9A.32.030(1)(c), which provides specifically that it is a defense ifthejury finds by
a preponderance ofthe evidence that the defendant: (i) Did not committhe homicidal act orin any way solicit, request, command, importune, cause, or aid the commission thereof; and (ii) Was not armed with a deadly weapon, or any instrument, article, or substancereadily capable ofcausing death or serious physical injury; and (iii) Hadno reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and (iv) Hadno reasonable grounds to believe that any otherparticipant intendedto engage in conduct likely to result in death or serious physical injury. The State conceded that Fisher met the first two elements but argued thatno evidence
was presentedto supportthe third and fourth elements. The trial court agreed and refused to providethe instruction.

12No. 91438-9
Fisher was "entitledto have thejury instructed on [her] theory ofthe case ifthere [was] evidence to support that theory." 

### State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997); 

### State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993). Failureto do so is reversible error. 

### State v. Griffin, 100 Wn.2d 417,420,670 P.2d 265 (1983). In evaluating Fisher's evidence, the trial court must view it in the light most favorable to her. 

### State v. Fernandez-Medina, 141 Wn.2d 448,455-56, 6 P.3d 1150 (2000); 

### cfState v. Henderson, 182 Wn.2d 734, 736, 344 P.3d 1207 (2015) (lesser-included offense instruction needed where evidence viewed in light most favorable to defendantraised inference he committed lesser crime). This evidence may come from "whatever source" that tends to show that the defendant is entitled to the instruction. 

### State v. McCullum, 98 Wn.2d 484,488, 656 P.2d 1064 (1983). Because the defendant is entitled to the benefit ofall the evidence, 

### State v. Gogolin, 45 Wn. App. 640, 643, 727 P.2d 683 (1986), her defense may be based on facts inconsistent with her own testimony. 

### State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997). "The trial court isjustified in denying a request for [an affirmative defense] instruction only where no credible evidence appears in the record to support [it]." 

### McCullum, 98 Wn.2d at 488. In short, the defendant has the burden ofproduction and, ifmet, theburden ofpersuadingthejuryby a preponderance ofthe evidence that she has met the four required elements. "The question ofwhether the defendant has produced sufficient evidence to raise a claim ofself-defense is a matter oflaw for the trial court." 

### Janes, 121 Wn.2d at 238 n.7. Here, the basis for the trial court's refusal to give the requestedjury instruction appears to

13No. 91438-9
be Jack ofevidence supporting an affirmative defense. Therefore, our standard ofreview is de novo. The State argues thatbecause Fisher did not testify or presentwitnesses, the only way she can carry her burden ofproduction is through her statements to the police introduced in the State's case in chief. Fisher, onthe other hand, contends thatin addition to her statement, she may pointto the State's absence ofevidence on the third and fourth**elements~namely** thatthe State did not produce any evidence tending to show that Fisherhad reasonable grounds to believe that one ofthe men was armed or that
one ofthem intended to engage in conduct likely to result in death or serious physical**injury~to** satisfy her burden ofproduction. Although we held that the evidence to support a defense instruction may come from "whatever source" tends to support it, McCullum, 98 Wn.2d at 488, we take this opportunity to clarify exactly how a defendant may satisfy herburden ofproduction. First, she may testify or call her own witnesses. Although testifying or calling one's own witnesses to support an affirmative defense instruction may be helpful in persuading thejury, we do not require a defendantto do so. Making this a necessary means ofsatisfying the burden ofproduction would force the defendant to waive one constitutionalright in order to invoke the other. Second, the defendant may pointto other evidencepresented at trial, including the State's evidence. State v. Gabryschak, 83 Wn. App. 249, 253, 921 P.2d 549 (1996); cf UnitedStates v. Hairston, 64 FJd491, 494 (9th Cir. 1995) (requiring alibi defense instruction even ifdefendant does not testify and only evidence ofalibi is presentedby

14No. 91438-9
the government). In Gabryschak, the defendant soughtto have a voluntary intoxication defense instruction given to thejury. 83 Wn. App. at 252. Gabryschak did nottestify,
nor didhe call any witnesses. 

### !d. at 253. Instead, counsel for Gabryschakused crossexamination ofthe State's witnesses in orderto elicitthetestimony necessary to support the intoxication instruction. 

### !d. The courtheld that a defendant may exercise herright to refrain from testifying and rely on the evidence elicited from the State and crossexamination ofthe State's witnesses to support an affirmative defense instruction. 

### !d. A defendant may not, however, pointto the State's absence ofevidence in orderto satisfy her burden. Even in cases ofself-defense, in whichthe State bears the burden of proof, the defendant mustproduce at least some evidence ofself-defense.8 Janes, 121

8 Itis worth noting that self-defense has typically beentreated differently from other affirmative defenses in which the legislature clearlyplaces the burden on defendants. InMcCullum, this court articulated a testto determine whether the prosecution mustprove the absence ofa defense--in that case, self-defense-beyond a reasonable doubt. The absence ofa defense is an ingredient ofthe offense if"(l) the statute may reflect a legislative intentto treat absence ofa defense as one 'ofthe elements included in the definition ofthe offense ofwhich the defendant is charged', or (2) one or more elements ofthe defense may 'negate' one or more elements ofthe offense which the prosecution mustprove beyond areasonable doubt." McCullum, 98 Wn.2d at 490 (citation omitted) (quoting Patterson v. New York, 432 U.S. 197,210,97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); State v. Hanton, 94 Wn.2d 129, 132-33,614P.2d 1280 (1980)). This court clarifiedthe test in State v. W.R. Jr. when it analyzed two Supreme Court cases to conclude that "[r]ead together, Martin and Smith hold that the State may burden a defendant withproving an affirmative defense that excuses otherwise criminal conduct even when the defense overlaps one ofthe elements under most circumstances, but the State may not burden a defendant with proving a defense that necessarily negates an element ofthe charged offense. Thus, the propriety ofthenegates analysis is no longer in doubt." 181 Wn.2d 757, 764, 336 P.3d 1134 (2014) (citing Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987); Smith v. United States,_U.S._, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013)). The legislature did not fashion RCW 9A.32.030(1)(c) in such a way that it intended the State to carry the burden, and it does not negate an element ofthe crime.

15No. 91438-9
Wn.2d at 237. Allowing a defendant to point to what essentially amounts to the absence ofrebuttal evidence to an affirmative defense adds additional elements to the crime the State must prove. We agree with 

### Gabryshackand reaffinn**McCullum~applying** them to all affirmative**defenses~and** hold that a defendant may use any evidence presented at trial, regardless ofthe party which presented it, in order to satisfyherburden ofproduction for
an affirmative defense instruction. A defendant may not, however, pointto an absence of evidence. Turning to the case at hand, Fisher argues that portions ofher statementto investigators that were read into evidence, viewed in the light most favorable to her, supported giving the affirmative defense instruction. She argues that while she overheard the men talking about robbing Masten, shetold Steele to stay out ofit. She was under the impression that Steele was not going to be involved in any robbery and was going only to show Trosclair where to meet Masten. Finally, she statedthatwhen Steele left his cell phone at home and subsequently calledher to ask her to make contact withMasten, she assumed there would be no robbery and that Steele was simply trying to arrange the purchase ofmore drugs. Reviewing the transcript ofher statement, it is often difficult to pinpoint what questions were directly answered, the timeline referred to in some answers, and the meaning ofmany answers. Read in this context, it is possible that ajurorcould decide that Fisherhad shown by apreponderance ofthe evidence that she had no reasonable grounds to believe that the men were armed or that they intended to engage in

16No. 91438-9
conduct likely to result in death or serious injury. While not overwhelming, a defendant is required to produce only some evidence to satisfY the burden ofproduction. The affirmative defense instruction should have been given to thejury. See UnitedStates v. Zuniga, 6 F.3d 569, 570 (9th Cir.l993) ("Even ifthe alibi evidence is 'weak, insufficient, inconsistent, or ofdoubtful credibility,' the instruction shouldbe given." (quoting United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987)). CONCLUSION The redaction ofTrosclair's name to "first guy" in Fisher's confession was insufficient, as it obviously referred to Trosclair. Itwas therefore constitutional error to read Fisher's statement into evidence. However, in light ofthe overwhelming untainted evidence, this error was harmless. We affirm Trosclair's conviction. As to Fisher, we hold she produced sufficient evidence at trial to warrant an affirmative defensejury instruction. Failure to do so constitutes reversible error. We
reverse Fisher's conviction and remand for anew trial.

17No. 91438-9

WE CONCUR:

. 

# (/

18

### State v. Fisher



### No. 91438-9

STEPHENS, 

### J. (concurring in part and dissenting in part)-I concur in the majority's decision to affirm Corey Trosclair's conviction based on its conclusion that the violation ofTrosclair's confrontation clause rights was harmless error. As to codefendant, Kisha Fisher, I agree with Justice Gonzalez that the trial court properly rejected her proposed affirmative defense instruction. Accordingly, I would also affirm Fisher's conviction.State v. Fisher, No. 91438-9 (Gonzalez, J., concurring in part and dissenting in part)



### GONZALEZ, 

### J. (concurring inpart and dissenting in part)-I concur withthe majority that Corey Trosclair's conviction shouldbe affirmed. However, I respectfully disagree with the majority's conclusionthat Kisha Fisher's conviction should be reversed. I agree with the majority that a defendant mayrely on evidence presented at trial from eitherparty to support an affirmative defense instruction. But even considering the State's evidence, the affirmative defense instruction was not warranted. To receive the instruction inthis case, there musthave been sufficient evidence presented for thejuryto find Fisher had no reasonable grounds to believe any participant was armed with a deadly weapon or intended to engage in conduct likely to result in death or serious physical injury. 

### 6A WASHINGTON PRACTICE: WASHINGTONPATTERN JURY INSTRUCTIONS: CIVIL 19.01 (1997). Neither the State
norFisherpresented such evidence. When given the opportunity duringtrial,
1State v. 

### Fisher, No. 91438-9 (Gonzalez, J., concurring in part and dissenting inpart) 

### counsel for Fisher did not elicit any 

### testimony to support the notion that Fisher did not knowthe other participants were armed or planning to harm Leonard Masten. If

### anything, the instruction is inconsistentwith Fisher's statementto police that she assumed Mario Steele and Trosclair were going to rob Masten even after Steele told herthat he was only going to leadthe othermento Masten. 14 Verbatim Tr. ofProceedings (VTP) (Aug. 8, 2012) at 1644. Robberies by their nature require the use ofsome sort offorce. Fisher's statement is not evidence that she had no reasonable grounds to believe Steele's or Trosclair's conductwas likely to result in serious physical injury. See State v. Davis, 

### 101 Wn.2d 654, 659, 682 P.2d 883 (1984). Without eliciting some evidence to supportthe affirmative defense instruction, Fisher was not entitled to the instruction. I would affirm her conviction. ForTrosclair, I would hold that the redactions to Fisher's statement did not facially incriminate Trosclair and didnotviolate Trosclair's confrontation rights. "Bruton, 

### as interpreted byRichardson, 

### holds that certain 'powerfully incriminating extrajudicial statements ofa codefendant'" can be so prejudicial that a limiting instruction cannot correctthem. Gray v. Maryland, 

### 523 U.S 185, 192, 118 S. Ct. 1151, 140 L. 

### Ed. 2d 294 (1998) (quoting Richardson v. Marsh, 

### 481 U.S. 200,207, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987) and citing Bruton v. UnitedStates, 

### 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d476 (1968)). When a confession is not
2State v. Fisher, No. 91438-9 (Gonzalez, J., concurring inpart and dissenting in part) 

### incriminating on its face butbecomes so "only when linked with evidence introduced later at trial," the confession falls outside the protections ofBruton. Richardson, 

### 481 U.S. at 208. I agree with the majority that admission ofa nontestifying codefendent's out-of-court statement can violate the confrontation clause whenthe statement facially incriminates the defendant. I disagree with the majority that this one did. Nothing in Fisher's statement "powerfully incriminate[es]" Trosclair as Bruton 

### prohibits. Bruton, 

### 391 U.S. at 135-36. When read in its entirety, it is difficultto tell who Fisher is referring to when she said "the first guy." The majority asserts thatthe redaction "obviously refers to Trosclair" because Fisher stated she knew Steele and "'the first guy"' were already in police custody. Majority at 9. All that statement shows, however, is thatFisherwas aware that two people had been arrested in connection with this crime. That statement, on its face, does not implicate Trosclair. Fisher later said thatthere was athirdperson, the man from California, present at the drug deal with Masten. 14 VTP (Aug. 8, 2012) at 1610. Contrary to the majority's view, Fisher never indicated whether she knew ifthe
man from California had been arrested, which means he cannot be eliminated as her codefendant. See 

### majority at 9. Additionally, throughout the rest ofFisher's statement when she described the men at Steele's house discussingthe robbery, she either referred to Steele by name or referredto the group ofmen as "they." See 

### 14
3State v. Fisher, No. 91438-9 (Gonzalez, J., concurring inpart and dissenting inpart) 

### VTP (Aug. 8, 2012) at 1616-30, 1637-47. It

### is unclear from these statements how many men she was referring to, and none ofthese statements obviously refers to Trosclair as the majority concludes. Finally, the majority finds "troubling" thatTrosclair's first name is used twice in Fisher's statement, which "makes it more likely that thejurywould conclude 'the first guy' refers to Trosclair." Majority at 10. I disagree. By naming Trosclair, thejury may likely conclude 'the first guy" mustrefer to
someone other than Trosclair. Why else would Fisher referto Trosclairby name in
some placesandnot in others? Furthermore, defense counsel for bothFisher and Trosclairjointly moved the courtto have the redactions replaced with Trosclair's first name inthose two places. 9 VTP (July 31, 2012) at 1033-35. Ifit was error to do so, then the error was invited and should not be reviewed on appeal. State v. Henderson, 114 Wn.2d 867, 871, 792 P.2d 514 (1990) (quoting State v. Boyer, 91 Wn.2d 342,345,588 P.2d 1151 (1979)). Without "powerfully incriminating" evidence against Trosclair in the redacted statement, the redactions did notviolate Trosclair's confrontationrights. Fisher did notpresent sufficient evidence to supportthe affirmative defense instruction. Accordingly, I concur with the majority in affirming Trosclair's conviction and dissent on its reversal ofFisher's conviction.

4State v. Fisher, No. 91438-9 (Gonzalez, J. concurring inpart and dissenting in part)

5