WASHINGTON v. FLEMING (2007)

 ¶ 1 Trollers Fleming appeals his second degree murder conviction arising from the shooting death of his brother, Yuseph Shabazz.   Fleming claims error at trial because:  (1) the detective commented on his guilt;  (2) the  detective commented on handcuffing Fleming when he turned himself in to police;  and (3) the trial court allowed impermissible hearsay.   Fleming also argues that his firearm enhancement was improper because the trial court did not have the statutory authority to submit the question to the jury.   Fleming raises numerous other issues in his pro se statement of additional grounds (SAG), but none have merit.   We affirm the conviction and the sentence because Fleming has not demonstrated error.

FACTS

¶ 2 On the night of June 2, 2004, Yuseph Shabazz and his brother, Trollers Fleming, were driving back to Tacoma after taking Shabazz's wife to the airport.   The two had been drinking earlier in the evening, and Fleming had driven extremely erratically on the way to the airport.

¶ 3 At about midnight, Pierce County Sheriff Deputy Carr heard a few “pops” and saw debris flying out the driver-side window of a car about six or eight car lengths behind him.   3 Report of Proceedings (RP) at 340.   The car then sped up and flew off the road.   Deputy Carr circled around, located the car, and found Shabazz lying in the driver seat.   He had been shot five times in the face and neck and had no pulse.   He was pronounced dead at the hospital later that night.

¶ 4 A K-9 unit tracked a scent from the passenger's side of the vehicle to an area where officers discovered a pair of boxer shorts with some bloodstains, a cigar, a roll of tape, and dried blood (on top of a chain link fence).   DNA analysis later revealed that Shabazz's blood was on the shorts, but DNA fragments on the waistband showed that the shorts belonged to Fleming.   The blood on the fence also belonged to Fleming.

¶ 5 Fleming's sister, Mary Sconyers, brought Fleming to the police a few days after the incident.   The police advised Fleming of his rights, and then tape recorded his statement.   Fleming stated that Shabazz was angry with him for his  erratic driving on the way to the airport, and Shabazz then drove the pair back to Tacoma.   Fleming claimed that Shabazz had grabbed Fleming's throat, began to choke him, and then pulled out Fleming's gun (which Fleming had given to him earlier that day), and pointed it at Fleming.   The two struggled over the gun, but Fleming asserted that it did not go off until the car went off the road.   He maintained that he did not realize Shabazz had been shot, and he ran only when he heard police sirens.

¶ 6 After Fleming made his statement to the police, they were able to obtain a search warrant for Sconyers' house.   Fleming's gun was found there in the subsequent search.

¶ 7 The State charged Fleming with first degree murder.   At a pretrial hearing, the trial court ruled that Fleming waived his rights knowingly, voluntarily, and intelligently, so his statement to the police was admissible.   However, the State successfully brought a motion in limine to preclude Fleming from introducing his statement at trial.   The trial court also denied Fleming's motion to exclude any reference to the incident as a “murder,” but it agreed that Fleming could object whenever “murder” was used in an inflammatory manner.   1 RP at 82.

¶ 8 During trial, the State asked Detective Vold whether he had been “contacted regarding a murder.”   4 RP at 594.   Fleming objected, and the trial court overruled the objection.   Detective Vold then responded that he was contacted regarding an “alleged homicide.”   4 RP at 595.

¶ 9 Detective Vold also testified regarding information that he had received through conversations with Sconyers.   Fleming objected twice on hearsay grounds, but the trial court overruled his objections.

Q [by State]:  Okay. Was [Sconyers] able to provide any information that was useful to your investigation?

[Defense counsel]:  Objection, Your Honor;  hearsay.

THE COURT:  Without divulging the information, that would be a yes or no answer.

 THE WITNESS:  Yes, she was.

Q [by State]:  Did it lead you to the next step in your investigation?

[Defense counsel]:  I am going to object in terms of hearsay.

[State]:  Your Honor-

THE COURT:  We are getting close to something that would necessitate hearsay, but I don't think we are quite there yet.   I will overrule.

4 RP at 604.

¶ 10 Detective Vold then testified that Sconyers led him to Jasmine ¹ , Shabazz's wife, and that Jasmine gave him useful information about what happened before the incident.

¶ 11 Detective Vold stated that he put out a local bulletin identifying the third individual in the car (Fleming's name was not mentioned in testimony, on hearsay grounds).   The individual was listed as a person of interest.   Detective Vold did not get to speak with Fleming until he came to the Pierce County Sheriff's office on the morning of June 4. Detective Vold testified that, at this point, he placed Fleming in handcuffs.   Fleming objected under ER 401, 403, and 404(b), but the trial court overruled the objection.

¶ 12 After a weekend recess, the State continued Detective Vold's direct examination.   The following exchange took place:

Q: At some point, you put a flyer out for Trollers Fleming, a person of interest;  is that correct?

A: That is correct.

Q: Was there any other person of interest that you were interested in speaking with at that point?

A: At that point, I had no information to lead me on to additional people of interest, no.

 Q: So, it was just Trollers Fleming at that point?

A: At that point, yes.

5 RP at 621.

¶ 13 During discussions on jury instructions, Fleming's counsel initially proposed that the court instruct on the lesser included offenses of first and second degree manslaughter, but he withdrew this request after discussing the issue with Fleming.   The trial court instructed the jury on the lesser included offense of second degree murder, and it agreed to give Fleming's proposed instruction on voluntary intoxication.   The jury also received special verdict forms to find whether Fleming was “armed with a firearm” when he committed the crime.   CP at 58, 60.

¶ 14 The jury found Fleming guilty of second degree murder while armed with a firearm.   Fleming now appeals.

ANALYSIS

I. Firearm enhancement

 ¶ 15 Fleming argues that his firearm enhancement was improper because the legislature has not set out a procedure for alleging and submitting to a jury the issue of whether the defendant was armed with a firearm, as it has for the issue of whether the defendant was armed with a deadly weapon.   See RCW 9.94A.602. According to Fleming, without an enacted procedure, the trial court and the appellate court lack the power to create a procedure.

 ¶ 16 Fleming did not object to the trial court's special verdict procedure.   Ordinarily, we do not address issues raised for the first time on appeal.  RAP 2.5(a);  State v. McFarland, 127 Wash.2d 322, 332-33, 899 P.2d 1251 (1995).   However, illegal or erroneous sentences may be challenged for the first time on appeal.  State v. Ford, 137 Wash.2d 472, 477, 973 P.2d 452 (1999).

¶ 17 Fleming misreads RCW 9.94A.602, which authorizes a procedure by which a trial court may submit to the jury the question of whether the defendant was armed  with any deadly weapon.   We reject Fleming's assertion that this statutory procedure only applies to non-firearms.   The statute's list of per se deadly weapons specifically includes firearms.²  When the legislature authorized the trial court to submit the deadly weapon question to the jury, it did not limit the court's authority to submit to the jury any question about the specific deadly weapon the defendant may have used.

¶ 18 We hold that, when submitting the deadly weapon question to the jury, the trial court has discretion to word the special verdict form using the “deadly weapon” language, the “firearm” language, or any other wording that carries out the spirit and purpose of the deadly weapon statute and the evidence presented at trial supports.   Fleming has not shown legal error;  his firearm enhancement was properly imposed.

¶ 19 We affirm.

¶ 20 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Comment on Guilt

¶ 21 Fleming argues that Detective Vold expressed an opinion on Fleming's guilt when (1) Detective Vold testified that he was contacted “regarding a murder” and (2) Detective Vold informed the jury that Fleming was the only person of interest.   Appellant's Br. at 15.   The State responds with two arguments:  (1) Fleming did not object to this testimony, and thus did not preserve the error for appeal, and (2) the testimony was not an express statement of his opinion that Fleming was guilty.

¶ 22 The trial court has wide discretion to determine the admissibility of evidence, and its decision whether to admit or exclude evidence will not be reversed on appeal unless the appellant can establish that the trial court abused that discretion.  State v. Demery, 144 Wash.2d 753, 758, 30 P.3d 1278 (2001).   Where reasonable persons could take differing views regarding the propriety of the trial court's actions, the trial court has not abused its discretion.  Demery, 144 Wash.2d at 758, 30 P.3d 1278.

¶ 23 Generally, no witness may offer testimony in the form of an opinion regarding the defendant's guilt or veracity;  such testimony is unfairly prejudicial to the defendant because it invades the jury's exclusive province.  Demery, 144 Wash.2d at 759, 30 P.3d 1278. “Opinion testimony” is “testimony based on one's belief or idea rather than on direct knowledge of the facts at issue.”  Demery, 144 Wash.2d at 760, 30 P.3d 1278 (quoting Black's Law Dictionary 1486 (7th Ed.1999)).

¶ 24 To determine whether statements are in fact impermissible opinion testimony, the trial court will generally consider the circumstances of the case, including the following factors:  (1) the type of witness involved;  (2) the specific nature of the testimony;  (3) the nature of the charges;  (4) the type of defense, and;  (5) the other evidence before the trier of fact.   Demery, 144 Wash.2d at 759, 30 P.3d 1278.   Another relevant consideration is the purpose for which the evidence was offered at trial.  Demery, 144 Wash.2d at 761, 30 P.3d 1278.

¶ 25 Fleming may raise this issue for the first time on appeal because admission of impermissible opinion testimony violates the defendant's constitutional right to a jury trial, including the independent determination of the facts by the jury.   See Demery, 144 Wash.2d at 759, 30 P.3d 1278;  State v. Florczak, 76 Wash.App. 55, 74, 882 P.2d 199 (1994) (admitting evidence that invades the jury's province was manifest constitutional error because it had practical and identifiable consequences in the trial).

¶ 26 Fleming inaccurately argues that Detective Vold testified that he was contacted regarding a “murder”-Detective Vold actually stated that he was contacted regarding an “alleged homicide.” 3  This was not impermissible opinion testimony, which must relate directly to the defendant.   See State v. Sanders, 66 Wash.App. 380, 387, 832 P.2d 1326 (1992).   Detective Vold's characterization did not directly implicate Fleming and was therefore permissible.

¶ 27 We also hold that the trial court did not abuse its discretion by allowing Detective Vold to testify that Fleming was the only person of interest in the investigation when the flyer was published.   When viewed in the light of the other evidence and the nature of Detective Vold's testimony, this testimony did not express an opinion as to Fleming's guilt.   Rather, Detective Vold was testifying about the course of his investigation.   He had just learned that Fleming was probably in the car with Shabazz sometime before the shooting.   Therefore, he believed that Fleming had relevant information about the incident.   Viewed in context, Detective Vold's testimony did not improperly suggest he had concluded that Fleming committed the crime.

III. Admission of Detective Vold's Handcuffing Testimony

¶ 28 Fleming argues that the trial court erred in allowing Detective Vold to testify that he handcuffed Fleming during questioning.   Fleming maintains that this testimony was irrelevant and unfairly prejudicial, and that this was a constitutional error as well as an error under the rules of evidence.   The State responds that Fleming has not demonstrated how this testimony impermissibly violated his constitutional presumption of innocence and, therefore, his constitutional argument fails.

¶ 29 As we noted, the trial court has wide discretion to determine the admissibility of evidence, and we will not overturn its decisions absent an abuse of that discretion.  Demery, 144 Wash.2d at 758, 30 P.3d 1278.

¶ 30 We hold that the trial court did not commit error in overruling Fleming's ER 401, 403, and 404(b) objections at trial.   The testimony was arguably irrelevant except to describe the course of Detective Vold's investigation.   While the testimony about handcuffing cast Fleming in a negative light, the jury already knew that he was eventually arrested and charged with murder.   Fleming has not demonstrated that this testimony was somehow unduly prejudicial.   Because Fleming did not appear at trial in jail attire or in shackles, he maintained his “physical indicia of innocence” in that respect.   See State v. Finch, 137 Wash.2d 792, 844, 975 P.2d 967 (1999).

¶ 31 Fleming cites to United States v. Fosher, 568 F.2d 207 (1st.   Cir.1978), to support his position, but that case is distinguishable.   There, witnesses identified the defendant initially from montages that police showed them using booking photos from prior crimes.  Fosher, 568 F.2d at 209-10.   The booking photos were unduly prejudicial because they communicated to the jury that the defendant had a criminal history.  Fosher, 568 F.2d at 217. 4  Here, Fleming objected to evidence of his arrest for the crime at issue, and no caselaw supports the position that such evidence is overly prejudicial or improper character evidence.

¶ 32 In addition, we generally do not review any claim of error that was not raised in the trial court unless it is a “manifest error affecting a constitutional right.”  RAP 2.5(a)(3);  State v. McFarland, 127 Wash.2d at 332-33, 899 P.2d 1251.   An error is “manifest” if the defendant can show, in the context of the trial, how the error actually prejudiced him.  McFarland, 127 Wash.2d at 333, 899 P.2d 1251.   Fleming has not demonstrated sufficient prejudice to make the alleged error “manifest.”   As described above, Detective Vold's testimony only described Fleming's arrest on the charges for which the jury was hearing testimony.   Fleming does not explain why Detective Vold's testimony about handcuffing was more prejudicial than the charges themselves.

IV. Hearsay

¶ 33 Fleming claims that the trial court erred in allowing the State to elicit hearsay testimony from Detective Vold regarding (1) a phone call from Fleming's brother, Ross, that led police to Mary Sconyers;  (2) Jasmine Shabazz's information that pointed the police to Fleming;  and (3) the search warrant that Detective Vold obtained after speaking with Fleming and Sconyers.   Fleming argues that all the above testimony was inadmissible hearsay, or backdoor hearsay, that effectively skirted the trial court's ruling on the State's motion in limine (which rendered his statement to police inadmissible).

¶ 34 The State responds that, by only objecting to the part of Detective Vold's testimony that related to the information he received from Sconyers, Fleming failed to preserve the other alleged errors for appeal.   We agree.   See State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993) (where trial objections did not preserve the necessary record for review, court declined to consider a constitutional claim).

¶ 35 Furthermore, the State claims that Fleming's sole hearsay objection was properly overruled because no out-of-court statement was being offered for the truth of the matter asserted.   Because no details of the witnesses' statements were presented to the jury, the State maintains that none of this testimony was backdoor hearsay.

¶ 36 In his argument, Fleming suggests that Detective Vold testified as to how Jasmine led police to him, but this was not the case.   The record shows that the trial court sustained Fleming's hearsay objection on this point-Detective Vold did not actually testify about Jasmine's statements to police.   Fleming is correct that subsequent testimony insinuated that he was the person Jasmine named as being in the car with Shabazz, but by this point in the trial, Jasmine had already testified to this herself.

¶ 37 “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  ER 801(c).  Where an evidentiary rule has been correctly interpreted, we review the trial court's decision to admit or exclude evidence for abuse of discretion.  State v. DeVincentis, 150 Wash.2d 11, 17, 74 P.3d 119 (2003).

¶ 38 The trial court did not abuse its discretion by allowing Detective Vold to testify that Sconyers led him to Jasmine.   Detective Vold was merely describing the course of his investigation, not relaying the substance of any witness's report.   See State v. Aaron, 57 Wash.App. 277, 280-81, 787 P.2d 949 (1990) (if a police officer must relate historical facts, it is sufficient for him to report that he acted on ‘information received’);  United States v. Hoffer, 869 F.2d 123, 126 (2d Cir.1989) (statement that an officer needed assistance was offered simply to show how the police came to arrive at the scene).

V. Fleming's Statements to Police

¶ 39 Fleming argues in his SAG that the trial court should have excluded both his recorded statement and the other statements he made to Detective Vold. The trial court ruled that all the statements were admissible.

¶ 40 We will not consider this claim because Fleming has not demonstrated that the alleged error occurred-Detective Vold did not testify at trial about statements Fleming made to him, and the State did not play Fleming's recorded statement for the jury.   See RAP 10.10(c).

VI. Shackling

¶ 41 In his SAG, Fleming recites the law regarding shackling a defendant and then states that the jury twice saw him handcuffed at trial, he asked defense counsel to address the issue to the trial court, and his counsel failed to make a record.   Because no record was made as to what the jury saw, we have no record to review.   Matters not in the record will not be considered by this court on appeal.  RAP 9.2(b).

VII. Conviction of an Act that was Not Criminal

¶ 42 Fleming cites to In re the Pers. Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004), for the proposition that a defendant cannot be convicted for an act that was not criminal at the time the act was perpetrated.   However, he does not explain how this relates to his case.   First and second degree murder were illegal at all times relevant to this case.   Therefore, we do not consider this claim.   See RAP 10.10(c).

VIII. False Testimony

¶ 43 Fleming alleges that the prosecution presented false evidence and perjured testimony.   However, he does not describe the testimony that he alleges was false.   Therefore, we decline to consider this claim on appeal.   See RAP 10.10(c).

IX. Empanelling a Biased Juror

A. Ineffective Assistance

¶ 44 Fleming, citing Hughes v. United States, 258 F.3d 453 (6th Cir.2001), claims that he received ineffective assistance of counsel when his attorney failed to strike juror number 30.   Fleming claims that this juror was biased against him because she had formerly worked for Tacoma Forensics, she knew all the police witnesses, and because her ex-brother-in-law was one of the detectives in the case.

¶ 45 In order to show ineffective assistance of counsel, the defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced him.  State v. Cienfuegos, 144 Wash.2d 222, 226-27, 25 P.3d 1011 (2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).   Fleming bears the burden of showing that, but for the ineffective assistance, the trial outcome would probably have differed.   See Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 46 “Deficient performance is not shown by matters that go to trial strategy or tactics.”  Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011 (quoting State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996)).   Courts maintain a strong presumption that counsel's representation was effective.   See State v. Brett, 126 Wash.2d 136, 198, 892 P.2d 29 (1995).

¶ 47 A juror may be disqualified for cause when that juror is biased.  RCW 4.44.150(2), .170(1), (2).   A juror is considered biased when that juror is related to or associated with either party;  when the juror has previously served on a jury on the same or a related case;  when the juror has an interest in the outcome;  or when the juror has formed an opinion that prevents the juror from hearing the case impartially.  RCW 4.44.170(1), (2), .180, .190.

¶ 48 The issue of actual bias goes to whether a particular juror's state of mind is such that he or she can try a case impartially and without prejudice to a party.  State v. Alires, 92 Wash.App. 931, 937, 966 P.2d 935 (1998).   A juror should not be disqualified for holding preconceived ideas if the juror is able to “put these notions aside and decide the case on the basis of the evidence given at the trial and the law as given him by the court.”  State v. White, 60 Wash.2d 551, 569, 374 P.2d 942 (1962).

¶ 49 Fleming has not demonstrated that juror 30 was so biased against him that his attorney performed deficiently by failing to move to strike her for cause.   He does not allege that she pre-judged the case or had an interest in the outcome.   Although she had worked for eight years for Tacoma Forensics, she stopped working there about two years before trial and had not seen anyone from her former employment since then.   Although she knew many of the police officers, she never worked directly with them or socialized with them.   When the trial court questioned her, she said that she could be fair and impartial.

¶ 50 Furthermore, an attorney's decision to use a peremptory challenge is considered strictly tactical.   See State v. Clark, 143 Wash.2d 731, 759-60, 24 P.3d 1006 (2001) (defendant tactically withheld a peremptory challenge to avoid seating a more unfavorable juror).

¶ 51 The Hughes case Fleming cites is distinguishable because in that case counsel seated a juror who said outright that she was close to several police officers and that she could not be fair.  Hughes, 258 F.3d at 456.   In reversing, the court in Hughes focused less on the juror's statements and more on the lack of follow-up by court or counsel after the juror declared her bias.  Hughes, 258 F.3d at 458.   In this case, the record shows that defense counsel questioned juror 30 about her work with Tacoma Forensics and how well she knew the police officers.

B. Due Process and Prosecutorial Misconduct

¶ 52 Fleming also argues that empanelling juror 30 denied him due process “by the willful bad faith malicious acts of federal and state officials, including the [prosecutors].”   SAG at 29.   We reject Fleming's allegation of prosecutorial misconduct.   See RAP 10.10(c).  As explained above, the record does not demonstrate actual bias that would have legally disqualified juror 30 from serving.

X. Defense Counsel's Failure to Request Lesser Included Instructions

¶ 53 Fleming claims that he received ineffective assistance of counsel because his attorney did not request instructions on the lesser included offenses of first and second degree manslaughter.   Despite his attorney's representations to the contrary, and without citation to the record, Fleming states that he did not agree with his attorney's decision not to instruct the jury on those offenses.   Fleming argues that this was prejudicial because it conveyed to the jury that he was guilty of either first or second degree murder.

¶ 54 Fleming has not met his burden of establishing ineffective assistance of counsel.   His attorney's decision not to request the lesser included instructions was likely tactical.   Fleming's main argument at trial was that the State had not provided direct evidence that (1) he was in the car during the shooting, (2) he was the only one in the car, or (3) he fired the gun.

¶ 55 The manslaughter instructions would have allowed Fleming to argue that he shot his brother “recklessly” or “with criminal negligence,” but defense counsel took an “all or nothing” approach, attacking the overall sufficiency of the State's evidence and arguing for full acquittal See RCW 9A.32.060(1)(a), .070(1).

¶ 56 Furthermore, the trial court instructed the jury on voluntary intoxication, which permitted the jury to acquit Fleming if it found that he was too intoxicated to premeditate or intend his actions.   The manslaughter instructions would have allowed the jury to convict even if they did not find intent.   See RCW 9A.08.010(1)(c), (d).  The voluntary intoxication instructions were more consistent with defense counsel's “all or nothing” strategy.   Defense counsel's decision not to request the manslaughter instructions was strategic and did not constitute ineffective assistance of counsel.

XI. Supplementing Jury Instructions

¶ 57 Fleming claims that the trial court misled the jury into reaching a verdict when it supplemented and replaced jury instructions.   He alleges that the court removed the original reasonable doubt instruction and substituted a new one.   He also claims that the trial court added an “intent” instruction.

¶ 58 A review of the record does not show that the alleged errors actually occurred.   The record does not contain any evidence that the trial court substituted or added to the jury instructions counsel proposed.   Therefore, we reject Fleming's argument.   See RAP 10.10(c).

XII. Sufficiency of the Evidence

¶ 59 Fleming also argues that the evidence was insufficient to convict him of second degree murder.

¶ 60 The test for determining the sufficiency of the evidence is whether, 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. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

¶ 61 When viewed in the light most favorable to the State, the evidence was sufficient to convict Fleming.   Shabazz was shot five times, clear evidence of an intentional killing.   Shabazz's blood was found on Fleming's shorts, discovered near the crash location.   A tracking dog led police from the passenger seat of the vehicle over a chain link fence with Fleming's blood on it, and Fleming had wounds on his hands and legs.   Fleming's gun matched the shell casings and bullet found in the car.   Police later found this gun in Fleming's sister's house, where Fleming had spent the previous night.   We reject Fleming's claim that the evidence was insufficient.

XIII. Cumulative error

¶ 62 Finally, Fleming argues that the combined effect of the errors at trial requires a new trial.   The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary.  In re Pers. Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964 (1994).   Fleming has not demonstrated that any of his claimed errors have merit.   Therefore, he has not met his burden and is not entitled to reversal based on cumulative error.

¶ 63 We affirm.

FOOTNOTES

1.   We use Jasmine Shabazz's first name to avoid confusion.   We mean no disrespect.

2.   RCW 9.94A.602 states as follows:  “For purposes of this section, a deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death.   The following instruments are included in the term deadly weapon:  ․ any dirk, dagger, pistol, revolver, or any other firearm ․”

3.   The State characterized the incident as murder, not Detective Vold. Fleming objected before Detective Vold could respond;  when Detective Vold finally spoke, he used the term “alleged homicide.”   4 RP at 594-95.

4.   Fleming also cites a Washington case, State v. Stevens, 58 Wash.App. 478, 794 P.2d 38 (1990), which concerned gruesome photographic evidence.   A different Washington case, State v. Stevens, 69 Wash.2d 906, 421 P.2d 360 (1966), deals with booking photographs, but in that case the booking photograph was properly admitted for clarification after defense had opened the door.

PENOYAR, J.