FILED
June 3, 2014
In the Office of the Clerk of Court
W A State Cou rt of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 30764-6-111
)
Respondent, )
)
v. ) ORDER GRANTING MOTION
) FOR RECONSIDERATION
STEVEN M. SWINFORD, ) AND WITHDRAWING OPINION
) FILED MARCH 18,2014
Appellant. )
THE COURT has considered appellant's motion for reconsideration, and is of the
opinion the motion should be granted. Therefore,
IT IS ORDERED, the motion for reconsideration of this court's decision of March
18,2014 is hereby granted.
IT IS FURTHER ORDERED, the court's opinion filed March 18,2014 is hereby
withdrawn and a new opinion will be filed this day.
DATED: June 3, 2014.
PANEL: Judges Siddoway, Brown, Fearing.
FOR THE COURT:
LAUREL H. SIDDOWAY,
FILED
June 3, 2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
)
Respondent, ) No. 30764-6-III
)
v. )
)
STEVEN M. SWINFORD, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, C.J. - Steven Swinford was convicted of second degree murder for
the shooting death of his friend after the jury rejected his claim of self-defense. He
appeals, arguing that the prosecutor committed misconduct by referring to Mr. Swinford
owing a "duty of care" to the victim and that the trial court erred in denying him a new
trial on that account. He also challenges the trial court's order that he undertake
substance abuse evaluation and treatment as a condition of community custody and, in a
statement of additional grounds, raises several additional issues.
After the conclusion of the usual briefing, Mr. Swinford moved for leave to raise
an additional issue, contending that the procedure by which the parties exercised
peremptory challenges to potential jurors had violated his right to a public trial. We
granted his motion and address that supplemental issue as well.
No.30764-6-III
State v. Swinford
The prosecutor's reference to a "duty of care" strayed from the language of the
legal elements and from the court's instructions. But the gist of his argument was that
Mr. Swinford's actions were not "reasonable" conduct qualifying as self-defense. If
improper, the argument was not ill intentioned and, if prejudicial, could have been cured
by a timely objection and instruction. The trial court did not err in denying a new trial.
Mr. Swinford correctly argues that the court's order requiring substance abuse
treatment was not supported by a necessary finding that he has a chemical dependency
that contributed to his offense. But since evidence from the record could support such a
finding and the sentencing court appears to have viewed alcohol abuse as contributing to
the offense, the appropriate remedy is to remand so that the trial court can determine
whether to strike the condition or make the required finding.
Mr. Swinford's challenge to the peremptory challenge procedure followed in the
trial court fails in light of State v. Love, 176 Wn. App. 911, 309 P.3d 1209, petition/or
review filed, No. 89619-4 (Wash. Dec. 9, 2013), in which we held that neither prong of
the experience and logic test suggests that the exercise of peremptory challenges must
take place in public. The issues raised in the statement of additional grounds are without
merit. We therefore affirm the conviction and remand for the limited purpose of
addressing the inadequate support for the community custody condition.
FACTS AND PROCEDURAL BACKGROUND
After a day oftarget shooting, Mr. Swinford, his roommate Jessy Juarez, and their
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No. 30764-6-111
State v. Swinford
friend Paul Raney returned to the home where Mr. Swinford lived with Mr. Juarez and
Steven Flick. There, Mr. Swinford, Mr. Raney, and Mr. Flick watched a movie, drank
mixed drinks, and played drinking games, while Mr. Juarez went upstairs to bed.
Eventually, Mr. Swinford and Mr. Raney began arguing over a portable media player on
which the three had been playing music and whose battery was depleted. Specifically,
they debated whether to plug the media player into the stereo and continue listening to
music, or to plug it into a game console to be recharged. Mr. Flick would later testify
that both Mr. Raney and Mr. Swinford liked to be right and that they would often quarrel
over such matters.
At some point in the argument, Mr. Swinford turned off the game console in order
to move the media player to the stereo. Mr. Raney then leaned forward in the chair in
which he was sitting, reaching for the remote control for the game console in order to
turn it back on. At the same time, he told Mr. Swinford to "[s]top being a fucking
badass" all the time. Report of Proceedings (RP) at 281, 266. Mr. Swinford then shot
Mr. Raney seven times, using a .45 caliber gun that had been left lying on the coffee
table. Mr. Raney sustained gunshots to his chest, abdomen, pelvis, right arm, and left
hand. A bullet that went through his heart and the spinal cord proved fatal.
After the shooting, Mr. Swinford and Mr. Flick called 911. The dispatcher told
3
No. 30764-6-III
State v. Swinford
Mr. Flick to move Mr. Raney to the floor and start CPR.l Mr. Juarez, a volunteer
firefighter who had been trained in emergency medicine, had by that time come
downstairs, awakened by the gunshots. He checked for Mr. Raney's pul~e several times
but could not find it and quickly concluded that he was dead.
Mr. Swinford was charged with second degree murder and defended on the basis
that he shot Mr. Raney in self-defense. He testified that as Mr. Raney angrily made his
"badass" comment, Mr. Swinford saw Mr. Raney's hand wrap around the grip of a pistol
that was tucked in his chair. Fearing that he was going to be shot and with only a split
second to make a decision, Mr. Swinford claimed he reached for a pistol on the coffee
table, closed his eyes, and shot. Detectives who searched the living room following the
shooting observed a .40 caliber pistol tucked between the right armrest and seat cushion
of the chair Mr. Raney had been sitting in.
Mr. Flick, the only witness to the shooting other than Mr. Swinford, testified at
trial that just before the shooting, Mr. Raney was leaning forward, apparently to reach the
controller for the video game console. He testified that Mr. Raney was not acting angry
at the time he called Mr. Swinford a "badass," that he did not raise the tone of his voice,
and that "[h]e was just talking at [Mr. Swinford]." RP at 281. Anticipating further
bickering between the two, Mr. Flick turned away to pick up and drink from a glass of
beer when he heard a cocking noise, followed by shots. After the shooting, Mr. Flick
1 Cardiopulmonary resuscitation.
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No. 30764-6-111
State v. Swinford
heard Mr. Swinford tell the 911 operator that "he had shot his friend and that he was
going away for a long time." RP at 270.
Mr. Juarez also testified that as they attempted to treat Mr. Raney following the
shooting, Mr. Swinford told him that he did not know why he shot Mr. Raney, and was
going to jail.
Mr. Swinford's first trial ended in a mistrial after the jury was unable to reach a
verdict. In the trial below, a second jury rejected his theory of self-defense and found
him guilty as charged. Mr. Swinford moved for a new trial, claiming that the prosecutor
committed misconduct by misstating the law during closing argument. The motion was
denied. Mr. Swinford was sentenced to 22 years' imprisonment and 36 months of
community custody, with a condition to the community custody being that he undergo an
evaluation for treatment for substance abuse. He appeals.
ANALYSIS
Mr. Swinford makes three assignments of error on appeal: first, that prosecutorial
misconduct denied him a fair trial; second, that the trial court erred in denying his motion
for a new trial based on the alleged misconduct; and third, that the trial court erred in
ordering him to participate in a substance abuse evaluation and undergo treatment as a
condition of community custody. Supplementally, he contends that the procedure
followed for exercising peremptory challenges to potential jurors violated his public trial
right.
5
No.30764-6-III
State v. Swinford
We first address the two assignments related to the alleged prosecutorial
misconduct and then tum to the community custody condition and the public trial issue.
1. Prosecutorial Misconduct
At issue as alleged misconduct are the italicized statements made by the
prosecutor during a portion of closing argument:
But Instruction Number 17 is in his defense, it says, it's a defense to
the murder or manslaughter if the homicide was justifiable. And you need
to determine this. The State has the burden to prove it wasn't justifiable.
But there's three different parts to that and the third part, it says, the slayer
employed such force and means as a reasonably prudent person would use
under the same or similar circumstances--or conditions as they reasonably
appeared to the slayer, taking into consideration all facts and circumstances
as they appeared to him at the time of and prior to the incident. Certainly,
he owes a duty ofcare to his best friend inside this house. And when he
pulls the trigger, he ignores that. The State only has to disprove one of
those three.
RP at 599 (emphasis added). Mr. Swinford contends that the harm of the argument was
aggravated because the prosecutor had earlier referred to a "duty of care" when
questioning him, asking ifhe had "us[ed] care" before shooting Raney. Id. at 558. The
prosecutor also asked, "You didn't owe your friend a duty of care?" to which Mr.
Swinford responded, "I don't know." Id. at 572. No objection was made in the trial
court to the argument or questioning about a duty of care.
An appellant bears the burden of demonstrating prosecutorial misconduct on
appeal. He or she must demonstrate that the prosecutor's conduct was both improper and
prejudicial. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). To
6
No. 30764-6-111
State v. SWinford
demonstrate prejudice one must show that there is a substantial likelihood the
prosecutorial misconduct affected the jury's verdict. State v. Ish, 170 Wn.2d 189,200,
241 P.3d 389 (2010).
Where, as here, a defendant fails to object in the trial court to a prosecutor's
statements, he waives his right to raise a challenge on appeal unless the remark was so
flagrant and ill intentioned that it evinced an enduring and resulting prejudice that could
not have been neutralized by an admonition to the jury. Stenson, 132 Wn.2d at 719.
Under this stringent standard of review the defendant must show that "(1) 'no curative
instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct
resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict.'"
State v. Emery, 174 Wn.2d 741, 761,278 P.3d 653 (2012) (quoting State v. Thorgerson,
172 Wn.2d 438,455,258 P.3d 43 (2011)).
Mr. Swinford argues that in the context of a criminal case there is no "duty of
care." Rather, a duty of care is relevant in the context of a civil claim for negligence,
where the existence ofa duty owed and a breach of that duty are elements of the cause of
action. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28,875 P.2d
621 (1994). He contends that in suggesting to the jury that Mr. Swinford owed a "duty of
care"-which is not an element to be proved in a criminal trial-the prosecutor misstated
the law.
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No. 30764-6-III
State v. Swinford
The proper standard for a jury to find Mr. Swinford not guilty by reason of self-
defense was set forth in the court's jury instructions, which provided in relevant part:
Homicide is justifiable when committed in the lawful defense of the
slayer or any person in the slayer's presence or company when:
1. the slayer reasonably believed that the person slain intended to
inflict death or great personal injury;
2. the slayer reasonably believed that there was imminent danger of
such harm being accomplished; and
3. the slayer employed such force and means as a reasonably prudent
person would use under the same or similar conditions as they
reasonably appeared to the slayer, taking into consideration all the
facts and circumstances as they appeared to him at the time of and
prior to the incident.
Clerk's Papers (CP) at 27.
A prosecutor's argument must be confined to the law stated in the trial court's
instructions. State v. Estill, 80 Wn.2d 196, 199,492 P.2d 1037 (1972). A prosecutor's
misstatement of the law can be a serious irregularity having the grave potential to mislead
the jury. See State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213 (1984) (in which a
prosecutor, in rebuttal, argued that a defendant could be found guilty as an accomplice,
where accomplice liability was not before the jury). A prosecutor's remarks during
closing argument are reviewed in the context of the total argument, the issues in the case,
the evidence addressed in the argument, and the jury instructions. State v. Dhaliwal, 150
Wn.2d 559,578, 79 P.3d 432 (2003).
The prosecutor's reference to a duty of care strayed from the language ofthe legal
elements and the jury instructions. Nonetheless, the prosecutor was clearly entitled to
8
No. 30764-6-111
State v. Swinford
argue that Mr. Swinford could not claim self-defense if he did not reasonably apprehend
felonious intent and imminent danger and did not use force and means that were
reasonable under the circumstances. The jury was required, then, to determine whether
Mr. Swinford's conduct was "reasonable." To say that the defendant must have acted
reasonably is to ascribe some duty of care.
The Washington Supreme Court stated in State v. Griffith, 91 Wn.2d 572, 575, 589
P .2d 799 (1979) that the defense of excusable homicide was unavailable to a defendant
who, "even ifhe could be said to have been acting lawfully, failed to exercise ordinary
caution in the discharge of a firearm." Relying on Griffith, the State's proposed jury
instructions in the trial below included a proposed instruction that "[t]he exercise of
ordinary caution is essential to a claim of excusable homicide." CP at 106. The trial
court questioned the need to give the instruction, asking the prosecutor, "[W]hy ... is
that not really covered under the pattern instruction which requires the slayer to
reasonably believe and to use such force and means as a reasonably prudent person would
use[?]" RP at 585. The prosecutor agreed that it was. It withdrew its proposed
instruction based on Griffith.
While straying from the verbiage of the instructions, then, the prosecutor evidently
believed, and the trial court had agreed, that a duty of ordinary care was implicit in Mr.
Swinford's obligation to act reasonably. Mr. Swinford fails to explain why that was
wrong, or at least misleading as argued to the jury. Even if there is a problem that Mr.
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No. 30764-6-111
State v. Swinford
Swinford fails to explain to us, the argument cannot be said to have been inherently
flagrant and ill intentioned or as causing incurable prejudice. Contrary to Mr. Swinford's
assertion that a reference to a duty of care improperly shifted the burden of proof, the
prosecutor was clear that the State bore the burden of proof, telling the jury that "[t]he
State has the burden to prove it wasn't justifiable." RP at 599. At worst (and again, Mr.
Swinford fails to demonstrate impropriety), the prosecutor characterized the State's
burden as proving that Mr. Swinford failed to "satisfY a duty of care" rather than proving
that he failed to act "reasonably."
Finally, the trial court's instructions to the jury set forth the standard of conduct
required for self-defense and the jury was instructed to "[d]isregard any remark,
statement or argument that is not supported by the ... law as stated by the court." CP at
45. We presume that the jury follows the court's instructions. Stenson, 132 Wn.2d at
729-30.
It is questionable whether the prosecutor's statements were improper and Mr.
Swinford fails to demonstrate prejudice. It is clear that the statements were not ill
intentioned and that any conceivable prejudice could have been addressed by a curative
instruction. Because Mr. Swinford fails to demonstrate misconduct requiring a new trial,
the trial court did not err in refusing to order one.
II. Community Custody Condition
Mr. Swinford next argues that the trial court exceeded its statutory authority by
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No. 30764-6-111
State v. Swinford
ordering him to "undergo an evaluation for treatment for ... substance abuse" as a
condition for community custody when no finding was entered by the court to support
this requirement. CP at 111. A trial court lacks the authority to impose a community
custody condition unless authorized by the legislature. State v. Kolesnik, 146 Wn. App.
790, 806, 192 P.3d 937 (2008). An unlawful sentence may be challenged for the first
time on appeal. State v. Ford, 137 Wn.2d 472, 477,973 P.2d 452 (1999).
RCW 9.94A.607(1) provides that "[w]here the court finds that the offender has a
chemical dependency that has contributed to his or her offense" it may order the offender
to "participate in rehabilitative programs or otherwise to perform affirmative conduct
reasonably related to the circumstances of the crime for which the offender has been
convicted and reasonably necessary or beneficial to the offender and the community in
rehabilitating the offender." "If the court fails to make the required finding, it lacks
statutory authority to impose the condition." State v. Warnock, 174 Wn. App. 608, 612,
299 P.3d 1173 (2013).
The parties disagree as to the proper remedy for the court's failure to enter the
required finding. Mr. Swinford asks that we order the trial court to strike the condition.
The State asks that we remand for the court to either make the required finding or strike
the condition, pointing out that the court commented during sentencing that alcohol
contributed to the offense, even though it then failed to make the required finding. Under
these circumstances, the appropriate remedy is to remand with the direction that the
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No. 30764-6-111
State v. Swinford
evaluation and treatment condition be stricken unless the court determines that it can
presently and lawfully comply with the statutory requirement for a finding that Mr.
Swinford has a chemical dependency that contributed to his offense. See State v. Jones,
118 Wn. App. 199,212 n.33, 76 P.3d 258 (2003).
III. Right to Public Trial
Finally, Mr. Swinford contends that the court violated his Washington
Constitution article I, section 22 public trial rights by having the parties exercise their
peremptory challenges privately. Specifically, following voir dire the court announced
that the parties would exercise their peremptory challenges on a jury selection document
that would be passed back and forth between the lawyers. No objection was made to the
procedure. The report of proceedings includes a record of which jurors were challenged
by each party but that information was not announced contemporaneously in open court.
At the end of the challenge process, the jurors who were excused by peremptory
challenges were asked to leave the jury box and were replaced by other jurors. The trial
court then asked the parties' lawyers if the jury as constituted conformed with their
records and both answered that it did.
Whether or not a particular portion of a proceeding is required to be held in public
is determined by use of the "experience and logic" test. State v. Sublett, 176 Wn.2d 58,
72-73,292 P.3d 715 (2012). This court applied the "experience and logic" test to the
exercise of peremptory challenges in Love, 176 Wn. App. at 920, a decision published
12
No. 30764-6-111
State v. Swinford
after Mr. Swinford's briefing of this issue, and concluded that "[n]either prong of the
experience and logic test suggests that the exercise of ... peremptory challenges must
take place in public." The procedure for exercising peremptory challenges in Love was
identical in all material respects to the procedure followed here. For the reasons
explained in Love, the exercise of peremptory challenges is not required to take place in
public. Mr. Swinford's right to a public trial was not violated.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Swinford raises four. We
address them in tum.
Prosecutorial Misconduct. Mr. Swinford raises several instances of alleged
prosecutorial misconduct apart from the prosecutor's references to a duty of care. He
claims the prosecutor made several statements during closing argument that were not
supported by the evidence. He points, first, to the prosecutor's having characterized Mr.
Raney as asking, "'[W]hy do you have to be a badass[?]''' which the prosecutor
suggested were not fighting words, allegedly "diminish[ing] the threat Mr. Swinford
faced." SAG at 13. He complains, second, of the prosecutor's argument that Mr. Flick
saw Mr. Swinford pick up the .45 with which he shot Mr. Raney; third, that the
prosecutor argued that Mr. Raney's hands were up prior to being shot by Mr. Swinford;
fourth, that the prosecutor argued that Mr. Flick could have heard Mr. Swinford
"[r]acking a round" as opposed to what Mr. Flick had described as a "cocking" noise,
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No. 30764-6-111
State v. Swinford
SAG at 14; and fifth, that the prosecutor argued that Mr. Swinford only called 911
because Mr. Flick was dialing 911 himself. He also complains that it was misconduct for
the prosecutor to argue, "'[T]his is a case where a person (Mr. Swinford) shoots first and
asks for you to excuse him later.'" SAG at 20. While Mr. Swinford objected in the trial
court to two of these matters-the prosecutor's argument that Mr. Flick saw Mr.
Swinford pick up the .45 and his argument that Mr. Raney's hands were up when he was
shot-those objections were overruled by the court, which characterized the prosecutor's
statements as argument.
It is prosecutorial misconduct for the State to refer to evidence outside the record.
State v. Fisher, 165 Wn.2d 727, 747,202 P.3d 937 (2009). Here, however, Mr. Swinford
is complaining of the prosecutor's characterization of testimony the jury had heard.
Where there is conflicting evidence, lawyers for the State and the defense can be
expected to legitimately disagree over which evidence should be given the greatest
weight by the jury and the inferences that may reasonably be drawn from the evidence.
In closing argument, the prosecutor has wide latitude in making arguments to the jury and
drawing reasonable inferences from admitted evidence. State v. Anderson, 153 Wn. App.
417,427-28,220 P.3d 1273 (2009).
The Washington pattern instructions recognize that the lawyers cannot reasonably
be expected to have a perfect recollection of all of the evidence presented at trial. The
introductory instruction given by the trial court at the conclusion of trial contemplated the
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No. 30764-6-III
State v. SWinford
possibility of mistakes being made during argument, advising the jury that
[t]he attorneys' remarks, statements and arguments are intended to
help you understand the evidence and apply the law. They are not
evidence. Disregard any remark, statement or argument that is not
supported by the evidence or the law as stated by the court.
CP at 45 (based on 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL § 1.02, at 14 (3d ed. 2008) (WPIC)).
Where the jury is given this cautionary instruction and the prosecutor does not
misstate or exceed the evidence in any significant respect, his or her comments will fall
within the latitude permitted counsel in closing argument. United States v. Parker, 549
F.2d 1217, 1222 (9th Cir. 1977); and see State v. Gregory, 158 Wn.2d 759,843-44 &
n.40, 147 PJd 1201 (2006) (prosecutor misstated probabilities of one DNA
(deoxyribonucleic acid) test as 1 in 325 million rather than 1 in 235 million and another
as 1 in 180 billion rather than 1 in 190 billion; no prejudice from this or from
unsupported representations as to the population of the United States and the world).
Here again, the jury is presumed to follow the trial court's instructions. Stenson, 132
Wn.2d at 729-30 Gury is presumed to abide by instruction that counsel's arguments are
not evidence); and see United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991) (holding
that jury instruction cautioning jurors that closing arguments are not evidence mitigates
prejudice from mistakes made in closing argument).
Here, the prosecutor's argument that Mr. Flick saw Mr. Swinford pick up the .45
15
No. 30764-6-111
State v. Swinford
was unsupported by Mr. Flick's testimony. There was no other evidence that would
support this statement as to what Mr. Flick saw. But Mr. Swinford's lawyer promptly
objected that Mr. Flick never testified to seeing Mr. Swinford pick up the .45, drawing an
immediate correction from the prosecutor, who stated, "Whether he saw him do it, he
sees him with the gun." RP at 595. Mr. Swinford's lawyer reminded the jury during his
own closing argument that the prosecutor was mistaken on this point. 2
All of the other statements challenged by Mr. Swinford's SAG were permissible
inferences from the evidence and argument. Here, too, Mr. Swinford's lawyer responded
to them in his own closing argument. 3
2 He reminded the jury that "Mr. Flick ... said, well, you know, I'm going to look
down at my beer. He didn't see what happened." RP at 604. Being corrected in this
manner on testimony that jurors likely listened to attentively (Mr. Flick was a key
witness) reflects on the prosecutor's credibility with the jury. It is a strong disincentive
for any prosecutor to misstate evidence the jury has seen.
Mr. Swinford's lawyer also reminded the jurors that they were the judges of the
evidence, stating, "You people all heard the testimony when it came down to the facts.
And you guys are ultimately the ones that get to evaluate the evidence, and I'm grateful
for that." RP at 603.
3 He told the jury, "I know counsel here said that [Mr. Swinford] racked a round.
There's absolutely no evidence of that whatsoever, none presented in any testimony";
"Dr. [Gina] Fino testified that she couldn't tell whether Mr. Raney was armed prior to
this shooting. She actually couldn't say whether his arm was up or down. That's what
she testified to, not that his arm was up here, which wouldn't make any sense"; "Now,
the State also wants you to believe some of what Mr. Flick said but not all of it, which I
find interesting. Mr. Flick testified at one point that he saw Mr. Raney's hands up, but
Mr. Flick wasn't looking when the shooting started. He wasn't looking right prior to the
shooting. He testified to that. He looked down at his beer for three or four seconds
because he said Paul was arguing and he said, here we go .... Mr. Swinford also told the
police less than a week later that he didn't see Mr. Raney's hands up. But now the State
16
No.30764-6-II1
State v. Swinford
As earlier discussed, a defendant complaining of prosecutorial misconduct in
closing argument bears the burden of showing that the prosecutor's conduct was both
improper and prejudicial. Because he shows no prejudice, we need not address further
whether the prosecutor's one factual misstatement amounted to improper argument.
Ineffective Assistance ofCounsel. With respect to the prosecutor's alleged
misstatements of evidence to which Mr. Swinford's lawyer did not object, Mr. Swinford
argues that by failing to object, his lawyer provided ineffective assistance of counsel.
Mr. Flick's lawyer objected to the only misstatement of Mr. Flick's testimony by the
prosecutor, so there was no deficient representation.
Failure to Define "Great Personal Injury." Mr. Swinford next argues that the
trial court erred when it failed to define "great personal injury" within the jury
instructions. He points out that it was defined for the jury in his first trial, which resulted
in a mistrial. The jury in the first trial was given the pattern instruction defining the term,
which states:
"Great personal injury" means an injury that the slayer reasonably
believed, in light of all the facts and circumstances known at the time,
would produce severe pain and suffering if it were inflicted upon either the
slayer or another person.
CP at 30 (Instruction 18, based on WPIC § 2.04.01, at 30). He is correct in pointing out
wants you to believe that Mr. Raney's hands were up and he puts them in different
positions"; and, "Now, counsel wants you to believe that [Mr. Raney's hands] were up,
but that's not a fact. There was nothing conclusive to say where his hands were." RP at
605, 609.
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No. 30764-6-111
State v. Swinford
that this definition was not included in the court's instructions to the jury in the trial
below.
Mr. Swinford raises this objection for the first time on appeal. "RAP 2.5(a) states
the general rule for appellate disposition of issues not raised in the trial court: appellate
courts will not entertain them." State v. Guzman Nunez, 160 Wn. App. 150, 157,248
P.3d 103 (2011) (citing State v. Scott, 110 Wn.2d 682,685, 757 P.2d 492 (1988», aff'd,
174 Wn.2d 707,285 P.3d 21 (2012). "As pointed out in Scott, the general rule has
specific applicability with respect to claimed errors in jury instructions in criminal cases
through erR 6.15(c), requiring that timely and well stated objections be made to
instructions given or refused 'in order that the trial court may have the opportunity to
correct any error.'" Id. (internal quotation marks omitted) (quoting Scott, 110 Wn.2d at
686). Mr. Swinford fails to demonstrate any basis for an exception.
Ineffective Assistance ofCounsel. Alternatively, Mr. Swinford couches his
complaint about the failure to define "great bodily injury" for the jury as one for
ineffective assistance of counsel, since his lawyer failed to request an instruction defining
the term and failed to take exception to the court's instructions excluding a definition.
Even if Mr. Swinford could demonstrate deficient performance, he cannot show
how the deficient performance prejudiced him. The only evidence offered to support Mr.
Swinford's belief that Mr. Raney intended to inflict death or great personal injury was
Mr. Swinford's own testimony that Mr. Raney was wrapping his hand around a loaded
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No. 30764-6-111
State v. Swinford
handgun and preparing to shoot. Mr. Swinford offers no explanation how the jury-if it
believed him-could have misconstrued "great personal injury" to have a meaning that
did not include being shot at close range by a handgun.
The pattern instruction defining "great personal injury" also contains a subjective
element that the comments to the Washington pattern instructions point out is important
to include when instructions on self-defense are given "in a case involving the use of
force against an unarmed assailant." WPIC § 16.02, at 237-38 (emphasis added) (citing
State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997». The comments comport with
our conclusion that where the victim threatening harm is armed, any reasonable jury
would conclude that a risk of great bodily injury exists. Here, the subjective element was
adequately addressed by another of the court's instructions, which advised the jury:
A person is entitled to act on appearances in defending himself, if
that person believes in good faith and on reasonable grounds that he is in
actual danger of great personal injury, although it afterwards might develop
that the person was mistaken as to the extent of the danger. Actual danger
is not necessary for a homicide to be justifiable.
CP at 63.
Even if Mr. Swinford could demonstrate deficient performance, he cannot show
how the deficient performance prejudiced him.
Sufficiency Challenge. Mr. Swinford next argues that the State failed to prove the
absence of self-defense beyond a reasonable doubt. When the defendant raises the issue
of self-defense, the absence of self-defense becomes an element of the offense that due
19
No.30764-6-II1
State v. Swinford
process requires the State to prove. State v. L.B., 132 Wn. App. 948, 952, 135 P.3d 508
(2006).
Evidence is sufficient to support a conviction if, after viewing the evidence in the
light most favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). A defendant
challenging the sufficiency of the evidence in a criminal case admits the truth of the
State's evidence and all reasonable inferences that can be drawn from it. Id. (quoting
State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992)).
The evidence presented at trial included the testimony of the only independent
eyewitness, Mr. Flick, that Mr. Raney was not acting angry in the moment before the
shooting, but was "just talking." RP at 281. It included Mr. Swinford's testimony that he
looked away, did not see Mr. Raney raise the gun, and instead shot him while continuing
to look away, holding his own gun with both hands. He admitted that he and Mr. Raney
were engaged in normal, friendly bickering moments before the shooting and that
bickering was not unusual. He admitted he overreacted. There was evidence that he took
time to cock the .45 and Mr. Flick testified that Mr. Swinford mumbled something before
he emptied his gun at Mr. Raney.
As to Mr. Raney, there was evidence that his hands were up against his torso in a
defensive position as he was shot and that he had nothing in his hands. There was
forensic evidence that he was leaning to the right and could not have been reaching for a
20
No.30764-6-III
State v. Swinford
gun. An expert testified that he found no blood on the trigger or barrel portions on the
gun within the armchair. Instead, he found blood only on the back portion or the area
around the rear sights and around the hammer and firing pin areas, which was consistent
with the gun having been tucked into the chair between the seat cushion and the inside of
the arm of the chair during an event that created blood spatter.
The State presented substantial evidence supporting the absence of self-defense.
Violation ofRight to Jury Trial. Mr. Swinford finally contends that he was denied
his constitutional right to a jury trial because the jury instructions misled the jury
regarding its power to acquit. We, like both other divisions of the Court of Appeals, have
rejected this precise argument. State v. Wilson, 176 Wn. App. 147, 151,307 P.3d 823
(2013), review denied, 179 Wn.2d 1012 (2014); State v. Meggyesy, 90 Wn. App. 693, 958
P.2d 319 (1998), abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156, 110
P.3d 188 (2005), rev'd, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006); State v.
Brown, 130 Wn. App. 767, 124 P.3d 663 (2005); State v. Bonisisio, 92 Wn. App. 783,
794,964 P.2d 1222 (1998). The instruction was proper.
We affirm the conviction but remand to the trial court for the limited purpose of
striking the evaluation and treatment condition unless it determines that it can presently
and lawfully comply with the statutory requirement for a finding that Mr. Swinford has a
chemical dependency that contributed to his offense.
A majority ofthe panel has determined that this opinion will not be printed in the
21
No. 30764-6-111
State v. Swinford
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Brown, J. . U
Feat.~JS.
22