FILED
COURT OF APPEALS
DIVISION SI
2015 APR - 7 AM 9: 22
STATE OF WASHINGTON
BY to
IN THE COURT OF APPEALS OF THE STATE OF WAS lI'
ON
DIVISION II
STATE OF WASHINGTON, No. 45391 -6 -II
Appellant,
v.
UNPUBLISHED OPINION
MARCUS R. LANGFORD,
Respondent.
MAxA, P. J. — Marcus Langford appeals his conviction and sentence for first degree
felony murder. The conviction arose from an attempted robbery in which Langford' s friend J. J.
Stimson shot and killed a man that he and Langford had encountered. The trial court allowed a
witness to testify that Stimson told her in Langford' s presence that he and Langford had intended
to rob a man. The trial court ruled that the testimony regarding Stimson' s statement was
conditionally admissible as an adoptive admission under ER 801( d)( 2)( ii) because there was
sufficient evidence that Langford had adopted Stimson' s statement by remaining silent while and
after Stimson made the statement.
Langford argues that ( 1) the trial court erred by giving an erroneous jury instruction
regarding the jury' s consideration of Stimson' s statement, and (2) Langford' s attorney provided
ineffective assistance of counsel by helping to draft and not objecting to the erroneous jury
instruction.
45391 -6 -II
We do not directly address whether the jury instruction was erroneous because Langford
invited any error and did not raise the issue in the trial court. However, we hold that defense
counsel provided ineffective assistance by helping to draft and failing to object to the erroneous
instruction that clearly misstated the law. Accordingly, we reverse Langford' s conviction and
remand for a new trial.'
FACTS
Facts of the Shooting Incident
Langford and Stimson were walking back from a party in November 2012 when they
came upon David Watson on the ground near his pickup truck at a gas station convenience store.
The store' s surveillance camera captured the encounter. Watson exchanged words with Stimson
and Langford and eventually got into the truck. Stimson stood at the driver' s door, apparently
conversing with Watson. Langford stood beside Stimson. Stimson suddenly reached into the
truck and shot Watson with a firearm. Stimson and Langford ran from the scene, and Watson
drove away. Shortly thereafter, Watson died from a gunshot wound to the chest.
The State charged Langford as an accomplice with first degree felony murder, with
attempted robbery as the predicate crime. The State also alleged a sentencing enhancement
1 Langford also argues that ( 1) the trial court erred in admitting testimony about Stimson' s
statement that he and Langford had intended to rob a man, ( 2) his attorney provided ineffective
assistance of counsel by failing to initially object to that testimony, ( 3) his attorney provided
ineffective assistance by failing to raise a statutory affirmative defense to felony murder, (4)
there was insufficient evidence to support a firearm sentencing enhancement and the trial court
made instructional errors regarding that enhancement, and ( 5) the trial court erred when it
directed the jury to continue deliberating after the presiding juror informed the trial court that the
jury was hopelessly deadlocked. Because we reverse on other grounds, we do not address these
arguments.
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because Stimson had been armed with a firearm during the crime. Stimson was charged as the
principal with first degree felony murder and originally was Langford' s codefendant, but
Stimson pleaded guilty to a lesser charge before the case went to trial.
Testimony About Stimson' s Statement
At trial, Stimson' s former girlfriend, Tajanae Williams, testified that Stinson and
Langford visited her apartment shortly after the crime. She stated that she was sitting in between
Stimson and Langford on her bed when Stimson " said that him and Marcus were going to rob
this guy and take his truck, but they didn' t." Report of Proceedings ( RP) at 481. The trial court
asked her to repeat the statement, and she reiterated, " JJ said they are going to rob this guy for
his truck, but they didn' t." RP at 481. She further testified that when Stimson made the
statement, Langford just looked at her with a " blank stare" and said nothing. RP at 482.
Langford then asked Williams to help him download music onto her computer.
Langford later moved to strike Williams' testimony about Stimson' s statement on
grounds that it was a statement by a nontestifying codefendant. The trial court denied the
motion, making a threshold determination that sufficient evidence supported a finding that
Langford had adopted Stimson' s incriminating statement by remaining silent. The trial court
explained that Stimson' s statement was admitted only as Langford' s adoptive admission and was
subject to a conditional relevance finding by the jury that Langford in fact adopted the statement.
Jury Instructions
Langford proposed jury instructions intended to limit the jury' s consideration of
Williams' testimony about Stimson' s statement.. One of the proposed instructions was based on
WPIC 6. 05, the pattern instruction to be given when a codefendant has testified at trial in a
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manner that incriminates the defendant. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 6. 05, at 241 ( 3d ed. 2008) ( WPIC). The trial court was
uncomfortable with Langford' s instruction as proposed, so Langford and the State both
participated in drafting a modified instruction based on the WPIC 6. 05 instruction. Both parties
ultimately agreed to the modifications and chose not to object to the final language of the
instruction. The trial court gave the jury the modified instruction.
Verdict and Sentence
The jury found Langford guilty of first degree felony murder and found that a firearm
was used in the commission of the crime within the meaning of the sentencing enhancement
statute. The trial court sentenced Langford to 340 months confinement, which included a
mandatory 60 months for the firearm enhancement. Langford appeals his conviction and
sentence.
ANALYSIS
A. ADOPTIVE ADMISSION —GENERAL PRINCIPLES
Stimson' s statement to Williams —that Langford and Stimson intended to rob a man —
was an out -of c- ourt statement offered for its truth. Ordinarily, an out -of c- ourt statement offered
for its truth is inadmissible hearsay. ER 802, 801( c). However, ER 801( d)( 2)( ii) provides that
an out of court statement is not hearsay when a party " has manifested an adoption or belief in its
truth." In this situation, the adopted statement is treated as the adopting party' s own words.
State v. Cotten, 75 Wn. App. 669, 689, 879 P. 2d 971 ( 1994). The original statement is not
hearsay because it is not admitted to prove the truth of the matter asserted. State v. Neslund, 50
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Wn. App. 531, 555, 557, 749 P. 2d 725 ( 1988). Instead, the statement is admitted to lay the
foundation for showing the party' s failure to deny it. Id. at 555.
A party may manifest adoption of another' s statement expressly, or by implication of his
words or actions. Id. at 550. Further, Division One of our court in Neslund held that a party may
by if the party ( 1) heard the incriminating statement, ( 2) was
implicitly adopt a statement silence
mentally and physically able to respond, and ( 3) reasonably would have responded under the
circumstances had there been no intention to acquiesce. Id. at 550 -51; see also Cotten, 75 Wn.
App. at 689 ( adopting the Neslund approach). Nevertheless, the court recognized the " inherently
equivocal nature of silence" and warned that " such evidence must be received with caution."
Neslund, 50 Wn. App. at 551. 2
The court in Neslund also held that whether a party has adopted a statement for purposes
of ER 801( d)( 2)( ii) is " a matter of conditional relevance to be determined ultimately by the jury."
Id. at 551 -52. To implement this approach, the court identified a two -step procedure for
admitting statements a party adopted by silence. First, the trial court makes a preliminary
determination that " there are sufficient foundational facts from which the jury reasonably could
conclude that the defendant actually heard, understood, and acquiesced in the statement" and the
circumstances are such that an innocent defendant normally would be induced to respond. Id. at
551. Second, if the trial court makes this determination and the statement is admitted into
evidence, the jury must determine as a matter of fact whether the party heard, understood, and
2 Langford asks us to overrule Neslund and Cotten and hold that a party cannot adopt an out -of-
court statement by silence under ER 801( d)( 2)( ii). Because we reverse on other grounds, we do
not address the validity of the adoption by silence rule.
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acquiesced in the statement by choosing not to respond. Id. at 551 - 52. Only if the jury finds that
the defendant heard, understood, and acquiesced in the statement can it consider the statement
for its truth during its deliberations.3 Id.
Here, the trial court expressly found that the State had established a sufficient foundation
for the jury to reasonably conclude that Langford adopted Stimson' s statement, and therefore
ruled that Williams' testimony regarding the statement was conditionally admissible. The issue
we address is whether the trial court properly instructed the jury regarding consideration of this
conditionally relevant evidence.
B. ADOPTIVE ADMISSION INSTRUCTION
1. Trial Court Error
Langford argues that the trial court erred by giving an erroneous instruction regarding the
jury' s consideration of Stimson' s statement. However, Langford' s counsel proposed the
instruction the trial court later adopted after modifications, participated in drafting the modified
instruction, and did not object to giving that modified instruction to the jury. Therefore,.
Langford both invited any error and failed to raise this argument in the trial court.
We do not consider any error that is invited by the appealing party. See State v. Hyder,
159 Wn. App. 234, 250, 244 P. 3d 454 ( 2011). We also generally do not consider arguments
raised for the first time on appeal. RAP 2. 5( a). Therefore, we do not directly address Langford' s
jury instruction argument.
3 Langford asks us to reject the Neslund approach and hold that the trial court must determine the
admissibility of alleged adoptive admissions rather than allowing the jury to determine
admissibility under conditional relevance procedures. Because we reverse on other grounds, we
do not address the validity of Neslund' s conditional relevance approach.
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2. Ineffective Assistance of Counsel
Langford alternatively argues that his attorney provided ineffective assistance of counsel
because he helped draft and failed to object to an erroneous jury instruction regarding the jury' s
consideration of Stimson' s statement. We hold that defense counsel' s representation was
deficient and prejudiced Langford, and therefore that Langford was denied his right to effective
assistance of counsel.
a. Legal Principles
The Sixth Amendment to the United States Constitution and article 1, section 22 of the
Washington Constitution guarantee a criminal defendant' s right to effective assistance of
counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 ( 2011). Where a criminal defendant
has been denied effective assistance of counsel, we will reverse any resulting conviction and
remand for a new trial. Id.
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on such a claim, the defendant must show that
1) defense counsel' s representation was deficient, and ( 2) the deficient representation prejudiced
the defendant. Grier, 171 Wn.2d •at 32 -33. Representation is deficient if, after considering all
the circumstances, it falls below an objective standard of reasonableness. Id. at 33. Prejudice
exists if there is a reasonable probability that except for counsel' s errors, the result of the
proceeding would have differed. Id. at 34. Reasonable probability in this context means a
probability sufficient to undermine confidence of the outcome. Id.
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b. Deficient Performance
Langford argues that his counsel' s performance fell below an objective standard of
reasonableness because his counsel helped draft, and ultimately agreed to, a jury instruction that
misstated the applicable law. We agree.
A jury instruction must properly inform the jury of the applicable law. Stale v. Mills, 154
Wn.2d 1, 7, 109 P. 3d 415 ( 2005). An instruction that misstates the law is erroneous. State v.
Clausing, 147 Wn.2d 620, 628, 56 P. 3d 550 ( 2002). An attorney has a duty to research the
applicable law and should reasonably appreciate an error of law in a jury instruction. See State v.
Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).
Under Neslund, the jury is responsible for determining whether a party has adopted
- ourt statement under
another person' s out -of c ER 801( d)( 2)( ii). 50 Wn. App. at 551 -52. The
jury must decide whether the party adopted the statement by determining whether the party
actually heard, understood, and acquiesced in the statement. Id. at 551. This procedure
necessarily means that if the jury decides that a party did not adopt a statement, it cannot
consider that statement for the truth of the matter asserted therein.
Here, the trial court worked with both parties to draft an instruction addressing
Langford' s alleged adoption of Stimson' s statement. The language of the instruction originated
with Langford' s proposed instruction based on WPIC 6. 05, the pattern instruction to be given
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when a codefendant has testified at trial in a manner that incriminates the defendant.4 To adapt
the proposed instruction to the situation presented in this case, the trial court simply changed
references to an accomplice' s " testimony" to " alleged statements" and added language
instructing the jury to determine whether the statements were made and whether the defendant
knowingly acquiesced in them. RP at 651. The resulting instruction (instruction 9) stated:
Alleged statements of an accomplice should be subjected to careful examination in
the light of other evidence in the case, and should be acted upon with great caution.
You should not find the defendant guilty upon such alleged statements alone unless
after carefully considering the statements, you are satisfied beyond a reasonable
doubt of its truth.
It is for the jury to determine if such statements were made and whether those
statements, in light of all the circumstances, were heard, understood and acquiesced
by the defendant.
Clerk' s Papers ( CP) at 60.
However, instruction 9 did not explain the Neslund procedure to the jury. The
instruction' s second paragraph stated the adoptive admission elements. But the instruction did
not inform the jury that it could not consider Stimson' s statement for any purpose if it found that
Langford had not heard, understood, or acquiesced in the statement. Instead, the instruction
stated that the jury could find Langford guilty.based on Stimson' s statement alone if the jury was
satisfied beyond a reasonable doubt of its truth" without finding that Langford had adopted the
statement. CP at 60.
4
The proposed instruction, identical to WPIC 6. 05, stated: " Testimony of an accomplice, given
on behalf of the State should be subjected to careful examination in the light of other evidence in
the case, and should be acted upon with great caution. You should not find the defendant guilty
upon such testimony alone unless, after carefully considering the testimony, you are satisfied
beyond a reasonable doubt of its truth." Clerk' s Papers at 31.
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By giving this instruction, the trial court told the jury that it could find Langford guilty
based on Stimson' s statement alone if the jury found that Stimson' s statement was true. The
language implicitly characterized Langford' s knowing acquiescence as a component in that truth
determination, not as a threshold requirement for considering the statement as evidence. The
instruction should have informed the jury that it could not consider the truth of Stimson' s
statement unless it found that Langford adopted that statement. As a result, the instruction
clearly misstated the law.
Langford' s counsel proposed the language that misstated the law and failed to object to
the erroneous instruction. As a result, we hold that Langford' s counsel' s performance was
deficient.
c. Prejudice
Langford argues that the erroneous jury instruction prejudiced him because it allowed the
jury to consider Stimson' s statement without finding that Langford adopted the statement. We
agree.
The evidence that Langford adopted Stimson' s statement was not particularly strong.
Although Langford was sitting on the bed with Williams and Stimson, he did not participate in
their conversation. And Langford just stared blankly when Stimson made the statement and then
acted as if no statement had been made by talking about downloading music. This evidence
would have allowed the jury to find that Langford did not hear, understand,. or acquiesce in
Stimson' s statement. Based on the minimal evidence that Langford adopted Stimson' s
statement, there is a reasonable probability that the jury would not have considered Stimson' s
statement if instructed properly.
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Stimson' s statement was the State' s primary evidence showing that Langford was aware
of or participated in a plan to rob the victim. Therefore, if the jury had not considered Stimson' s
statement, there is a reasonable probability that it would have reached a different verdict.
Accordingly, we hold that Langford was prejudiced by his attorney' s deficient performance in
helping draft and failing to object to the erroneous jury instruction.
We reverse Langford' s conviction and sentence and remand for a new trial.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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