State Of Washington, Respondent V. William Stewart Harrell, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent
v.
WILLIAM HARRELL,
Appellant.
No. 80191-1-I
DIVISION ONE
UNPUBLISHED OPINION
COBURN , J. — William Harrell stabbed his romantic partner, Kirstyn Outen,
in the chest and killed her. 	Harrell claimed that, in the midst of an argument, he
tried to push Outen away as she lunged toward him but accidentally stabbed her.
Harrell challenges his conviction of second degree felony murder following a jury
trial. He contends that the trial court erred in denying his request for an
instruction on the lawful use of nonlethal force; the prosecutor engaged in
misconduct during cross examination and in closing remarks; the court erred in
admitting prejudicial witness testimony; trial counsel’s performance was
constitutionally inadequate; and the court erred in denying his request for a
lesser included instruction. Finding no error, we affirm.
FACTS
In the early morning hours of April 28, 2017, paramedics arrived at a
recreational vehicle (RV) parked in the Ballard neighborhood of Seattle in

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response to a 911 call. They found Kirstyn Outen outside the RV unconscious
and unresponsive. William Harrell, who later described Outen as his fiancé, was
standing nearby, visibly distraught.
Paramedics began to administer aid, and police officers arrived a few
minutes later. The paramedics believed they were responding to a possible
overdose. When a police officer asked Harrell what happened, he said that he
and Outen had been smoking heroin, they had a fight, he chased her out of the
RV, and she fell into the bushes.
Paramedics were unable to revive Outen and she was pronounced dead
shortly after. After police officers learned that Outen had been stabbed, and
observed blood on Harrell’s hands and clothing, they arrested him. They later
found a bloody kitchen knife with a six-inch blade on a table inside the RV. The
medical examiner determined that Outen died from a single stab wound to the
chest. The wound penetrated Outen’s left lung and aorta and extended to the
back of her chest cavity where it met her spine.
The State charged Harrell with second degree felony murder. At Harrell’s
trial, Samantha Freed testified that she arrived in Seattle on April 28, 2017, after
being released from a drug treatment program in Florida. She returned to
Washington State with a plan to return to the streets and resume using drugs.
Freed contacted Outen and Harrell. She knew them because a few years earlier,
they camped in the same area for several months. Freed asked them to obtain
heroin and methamphetamine for her.

No. 80191-1-I/3
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Freed arrived at the RV where Harrell and Outen were living at around
8:00 P.M. and smoked heroin and methamphetamine with them throughout the
night. An acquaintance named Wally arrived at some point to borrow gas cans.
While Harrell watched Wally out of the back window, making sure he took only
gas cans, Outen moved a methamphetamine pipe that was on the table in plain
sight. Harrell turned towards Outen and accused her of stealing drugs. Outen
and Harrell argued, and Harrell stormed out of the RV. Outen followed him, but
returned a few minutes later. It appeared to Freed that she had been crying.
A few minutes later, Harrell returned and told Freed to “get the fuck out.”
Harrell demanded that Outen leave also. As she left, Freed heard Harrell tell
Outen that if she did not leave he would stab her. Freed saw Harrell reach
toward a knife block that was on the table.
As Freed crossed the street in front of the vehicle, she heard Outen
scream followed by a couple of loud thumps. She turned and saw Outen
sprawled on the sidewalk in front of the RV with Harrell on top of her. Harrell
called out for Freed or someone to call 911 and Freed did so. Harrell kept
repeating that he was sorry and pleading for Outen to wake up. Freed left the
scene before law enforcement arrived because she had an outstanding warrant
and did not realize that Outen was critically injured.
Harrell testified at trial and admitted that he argued with Outen on the
night she died. According to Harrell, the argument began when he saw Outen try
to grab his wallet when his back was turned. Harrell then left the RV taking some
of his belongings and heroin that he kept in a safe. Harrell claimed that Outen

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tried to physically block him from leaving, and once he managed to get outside,
she followed him and tried to stop him by “swatting” at him and grabbing his
clothing. Eventually, Harrell said Outen gave up and returned to the vehicle
while he continued toward the bus stop.
Because the next bus was not scheduled to arrive for a significant amount
of time, Harrell also returned to the RV. Harrell explained that after Freed left, he
took out a kitchen knife in order to cut the heroin he had in his pocket and asked
Outen to hand him a scale. When Outen asked him to cut off a piece for her,
Harrell responded that he “wasn’t giving her shit.” According to Harrell, Outen
then threw something at him, possibly a 5-pound space heater. As he raised his
hands to protect himself, he scraped his knuckles. Harrell testified that Outen
then lunged at him, and he tried to push her away while still holding the knife in
his hand. Harrell testified that Outen then “folded up” just outside the RV and fell
into the adjacent bushes. Harrell realized that he had accidentally stabbed
Outen only after she fell, and when he noticed the bloody knife in his hand,
Harrell then placed the knife back inside the RV. Harrell said that once he
became aware the paramedics were treating Outen for an overdose, he lifted
Outen’s shirt to show them her injury.
After considering the testimony of Freed, Harrell, and approximately 25
other witnesses, the jury found Harrell guilty as charged. Harrell then pleaded
guilty to an aggravating factor, stipulating that the crime was a part of an
“ongoing pattern of psychological, physical, or sexual abuse.”

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RCW 9.94A.535(3)(i). The court imposed an exceptional sentence of 284
months.
Harrell appeals.
ANALYSIS
Lawful Use of Force Jury Instruction
Harrell proposed a jury instruction on the lawful use of force applicable to
charges other than homicide based on 11 Washington Practice: Washington
Pattern Jury Instructions: Criminal 17.02 (4th ed. 2016) (WPIC). That instruction
provided, in relevant part, that a person may lawfully use force against another
when the person “reasonably believes that he is about to be injured” and “the
force is not more than is necessary.” The court declined to give the instruction.
The court provided several other instructions pertaining to self-defense including
a justifiable homicide instruction based on WPIC 16.02, which contains a
heightened requirement that in order to use lethal force, the defendant must
reasonably believe the victim intended to inflict death or great bodily injury.
Jury instructions are generally sufficient if they are supported by
substantial evidence, properly state the law, and allow the parties an opportunity
to satisfactorily argue their theories of the case. State v. Clausing, 147 Wn.2d
620, 626, 56 P.3d 550 (2002). We review the adequacy of jury instructions de
novo. Id. But where the superior court refuses to give an instruction based on
the facts of the case, we review its decision for abuse of discretion. State v.
Hunter, 152 Wn. App. 30, 43, 216 P.3d 421 (2009). A superior court abuses its
discretion when its decision is manifestly unreasonable or based upon untenable

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grounds or untenable reasons. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255
(2001). A defendant is entitled to a self-defense jury instruction when there is
“some evidence admitted in the case from whatever source which tends to prove
a killing was done in self-defense.” State v. McCullum, 98 Wn.2d 484, 488, 656
P.2d 1064 (1983).
Because he testified that the stabbing occurred as he raised his hands to
fend off Outen’s attack without realizing he had a knife in his hands, Harrell
contends there was a sufficient evidentiary basis for the instruction. And relying
on State v. McCreven, 170 Wn. App. 444, 284 P.3d 793 (2012), he argues that
because the felony murder charge was predicated on second degree assault and
one of the means of committing assault alleged by the State was that he
assaulted Outen and recklessly inflicted substantial bodily harm, the lawful use of
force instruction was legally “appropriate.”
The charges against McCreven and his three codefendants stemmed from
the stabbing death of one individual and the serious injury of another that
occurred during a fight in a parking lot outside of a bar. McCreven, 170 Wn. App.
at 453. Division Two of this court held that because the use of deadly force in
self-defense requires a reasonable belief that the defendant is threatened with
death or great personal injury as to the felony murder charge premised on
second degree assault with a deadly weapon, see RCW 9A.36.021(1)(c), the
justifiable homicide instruction, as provided here, was appropriate. Id. at 467.
However, as to the felony murder charge premised on second degree assault
committed by intentionally assaulting the victim and recklessly inflicting

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substantial bodily harm, the justifiable homicide instruction did not allow the
defendants to argue that they committed the assault that resulted in fatal injury
due to a reasonable belief the victim was about to inflict a lesser harm: imminent
substantial bodily injury. Id. at 466-67. Therefore, the failure to provide the
general instruction on self-defense was error. Id. at 467.
Unlike the case in McCreven, the failure to give a self-defense instruction
based on WPIC 17.02 did not prevent Harrell from presenting his theory of the
case. Nothing in the instructions suggested that Harrell was not entitled to do
what he claimed he intended to do: push Outen away as she lunged at him. It
was undisputed that instead of pushing her, he stabbed her in the chest. And
there was no evidence that Harrell did so because he reasonably feared that she
was about to inflict death, serious injury, or substantial bodily injury.
The Washington State Supreme Court’s analysis in State Henderson, 192
Wn.2d 508, 430 P.3d 637 (2018) is instructive. During a tense argument
between two groups of people, Henderson shot and killed another man.
Henderson, 192 Wn.2d at 510-11. The State charged Henderson with felony
murder based on second-degree assault with a deadly weapon. Henderson, 192
Wn.2d at 511. Henderson challenged the trial court’s failure to instruct the jury
on excusable homicide, WPIC 15.01, which was relevant to Henderson’s defense
that he brandished a firearm to diffuse the conflict but then accidentally shot and
killed the victim. The court examined the instructions in their entirety and held
that it was not error for the trial court to refuse to give the proposed instruction
because the instructions “adequately told the jury the intent, conduct, and

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necessary lack of accident it must find beyond a reasonable doubt to convict.”
Henderson, 192 Wn.2d at 514. Henderson was able to argue his theory of the
case and the jury was properly instructed that the assault had to be intentional.
Henderson, 192 Wn.2d at 514-515. 	According to the trial court’s instructions,
the jury could not have convicted Henderson if the jurors believed the shooting
was accidental. Henderson, 192 Wn.2d at 515.
As in Henderson, the primary disputed issue at trial was whether or not
Harrell intentionally committed the assault that resulted in Outen’s fatal injury.
And here too, the court properly instructed the jury that in order to convict Harrell
of murder in the second-degree, the State had to prove beyond a reasonable
doubt that he committed assault in the second-degree and caused Outen’s death
in the course of that crime. The court’s instructions also provided that in order to
convict Harrell, the jury had to find that he “intentionally” assaulted Outen and
recklessly inflicted substantial bodily harm or assaulted her with a deadly
weapon. The instructions defined assault as an “intentional touching or striking
or cutting.” And the court instructed the jury that “[a] person acts with intent or
intentionally when acting with the objective or purpose to accomplish a result that
constitutes a crime.”
These instructions provided a complete and accurate statement of the law
that did not deprive Harrell of his right to present a defense. They allowed Harrell
to argue that the stabbing was unintentional. If the jury believed that Harrell
intended to push Outen out of the way, but accidentally stabbed her, it could not
convict him under the instructions. The difference in the degree of the threat of

No. 80191-1-I/9
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injury a person must perceive in order to lawfully use force under the justifiable
homicide instruction, as opposed to the general self-defense instruction, was not
material given the evidence and the parties’ theories of the case. The court’s
decision declining to provide Harrell’s proposed instruction was not an abuse of
discretion. And because McCreven did not require the court to provide Harrell’s
requested instructions under these circumstances, his trial counsel did not
perform deficiently by failing to bring that authority to the trial court’s attention.
Prosecutorial Misconduct
Prosecuting attorneys are quasi-judicial officers who have a duty to ensure
that defendants receive a fair trial. State v. Boehning, 127 Wn. App. 511, 518,
111 P.3d 899 (2005). A defendant alleging misconduct by the State bears the
burden of proving that the prosecutor’s conduct was both improper and
prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). We
review the propriety of a prosecutor’s conduct “in the context of the total
argument, the issues in the case, the evidence addressed in the argument, and
the instructions given.” State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747
(1994).
Once a defendant establishes improper conduct, we determine whether
the defendant is entitled to relief by applying one of two standards of review.
Emery, 174 Wn.2d at 760. If the defendant timely objected at trial and the
objection was overruled, the defendant must show that the misconduct led to
prejudice that had a substantial likelihood of affecting the verdict. Id. If there
was no objection at trial, the defendant is deemed to have waived the claim of

No. 80191-1-I/10
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error unless the defendant can show that the misconduct was “‘so flagrant and ill-
intentioned that it evinces an enduring and resulting prejudice’” that could not
have been cured by a jury instruction. State v. Fisher, 165 Wn.2d 727, 747, 202
P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201
(2006)).
I. 	Cross Examination
It was undisputed that Outen died as a result of a stab wound Harrell
inflicted. During cross examination, the prosecutor pressed Harrell about his
testimony that he unintentionally stabbed Outen during a fight. Specifically, the
prosecutor asked several questions to clarify that Harrell did not claim to have
stabbed Outen to protect himself from being injured. For example, the
prosecutor asked whether it was “necessary” to stab Outen because she had
thrown something at him causing minor injury to the back of his hands. The
prosecutor also asked whether stabbing Outen in the chest would have been, in
fact, an “excessive” measure to prevent Outen from assaulting him in the manner
he described. Defense counsel objected to this line of questioning, arguing that it
was designed to elicit improper legal conclusions. The court overruled the
objections and informed the jury that the prosecutor’s questions went to Harrell’s
perception of the facts and not to the law as applied to those facts.
Harrell contends that the prosecutor engaged in misconduct by pressuring
him to provide a legal opinion as to whether the force he used was “justifiable”
and whether his “conduct was lawful.”

No. 80191-1-I/11
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It is generally true that a witness may not testify to legal conclusions.
State v. Olmedo, 112 Wn. App. 525, 532, 49 P.3d 960 (2002). 	“Improper legal
conclusions include testimony that a particular law applies to the case, or
testimony that the defendant’s conduct violated a particular law.” Olmedo, 112
Wn. App. at 532. The prosecutor’s questions probed Harrell’s intent and
perceptions and were not improper. Although the questions echoed some of the
concepts encompassed in the justifiable homicide instruction about reasonable
means and force, the inquiry was directed toward uncovering legally relevant
facts and not legal conclusions.
II. 	Closing Argument
Harrell claims that the prosecutor improperly asserted during closing
remarks that there was no evidence of Outen’s physical aggression, thereby
suggesting that his testimony was not evidence.
In the context of closing arguments, the prosecuting attorney has wide
latitude in making arguments to the jury, and prosecutors are allowed to draw
reasonable inferences from the evidence. In re Pers. Restraint of Glasmann, 175
Wn.2d 696, 704, 286 P.3d 673 (2012). We review allegedly improper comments
in the context of the entire argument. Fisher, 165 Wn.2d at 747.
The prosecutor here simply asked the jury to draw inferences from the
evidence that were consistent with the State’s theory of the case. The prosecutor
maintained that the trial testimony, as a whole, did not indicate that Harrell
stabbed Outen in self-defense. And without objection, the prosecutor stated that
the evidence did not support Harrell’s “contention” that Outen attacked him. The

No. 80191-1-I/12
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prosecutor’s argument was not misleading and did not imply that Harrell’s
testimony was not evidence.
Harrell also challenges the prosecutor’s remarks related to special verdict
questions. If the jury found Harrell guilty of murder, the instructions required the
jury to answer: (1) whether Outen and Harrell were “family or household
members,” and (2) whether Harrell was “armed with a deadly weapon.
Discussing the special verdicts, the prosecutor characterized Harrell’s crime,
involving both domestic violence and a weapon, as “worse” than second-degree
murder in general. Harrell did not object.
Harrell now claims that the comments improperly appealed to the jury’s
passion and prejudice and encouraged jurors to rely on the relative severity of
Harrell’s crime in comparison with other homicides. 	The relevant question is
whether the challenged argument “encouraged the jury to base the verdict on the
improper argument rather than on properly admitted evidence.” State v. Salas, 1
Wn. App. 2d 931, 946, 408 P.3d 383 (2018).
The isolated comments about the special verdicts were neither the focus
of the State’s argument nor an emotional appeal to the jury. The State primarily
argued that the evidence was not consistent with Harrell’s claim of accident. The
prosecutor maintained that the fact that Outen was stabbed less than a minute
after Freed heard Harrell threaten to stab her was convincing evidence that he
intended to do so. The prosecutor’s suggestion, that Harrell’s relationship with
the victim made the crime “worse,” was consistent with Harrell’s testimony that
the crime had a tragic impact because he lost his “best friend.”

No. 80191-1-I/13
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In the context of the entire closing argument, the comments did not appeal
to the jury’s passion and prejudice. The prosecutor encouraged the jury to base
its verdict on the properly admitted evidence. Because there was no prejudicial
misconduct, defense counsels’ failure to object was not deficient performance.
Gina Wood’s Testimony
Before trial, the court ruled that a limited number of Harrell’s alleged prior
acts of violence toward Outen were admissible under ER 404(b). The court
admitted only alleged incidents connected to accusations that Outen was stealing
Harrell’s drugs or money, concluding that those incidents were relevant to intent
and motive. See ER 404(b) (prior bad acts may be admissible as “proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident”).
In accordance with this ruling, Gina Wood testified that Harrell and Outen
briefly stayed with her in New York several years earlier. During that time, Wood
said that Harrell accused Outen of stealing drugs from him, he did not believe
Outen’s denials, and proceeded to remove her clothing and search her body
inserting his fingers in her vagina while doing so. The prosecutor asked Wood
about her use of drugs on the night in question. The prosecutor also asked
questions that would allow Wood to explain why she did not intervene or
otherwise assist Outen when this happened in her presence. In response, Wood
said she was “very scared at the time” and “had never seen anything like this.”
Harrell contends that (1) the trial court erred in overruling his objection to
questions about Wood’s state of mind, and (2) the prosecutor engaged in

No. 80191-1-I/14
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misconduct by eliciting irrelevant and unfairly prejudicial testimony.
We disagree on both counts.
Harrell argues that the testimony about Wood’s state of mind was
irrelevant and shed no light on his motive. But the State was entitled to present
evidence to establish that the incident occurred. To that end, questions going to
Wood’s memory, her perception, and the reasons why she did not react as one
might expect by reporting the incident or trying to stop Harrell or assisting Outen,
provided relevant context and assisted the jury to evaluate Wood’s testimony.
We conclude the trial court did not abuse its considerable discretion in
determining that the State’s questions were relevant and admissible. See State
v. Mee Hui Kim, 134 Wn. App. 27, 139 P.3d 354 (2006) (the trial court has broad
discretion regarding the admission of evidence, and the court’s decision will not
be reversed absent a manifest abuse of discretion). For the same reason, the
questions did not amount to misconduct.
Wood also testified that Harrell searched Outen’s body for five minutes.
When asked whether Harrell “kept going over the same areas,” Wood said
Harrell was “feeling all over her, and [Outen] was very used to this I can tell.”
Harrell claims that this testimony was unfairly prejudicial because it strongly
implied a history of domestic violence. And because defense counsel failed to
object, he contends that he was deprived of constitutionally effective assistance
of counsel.
The Sixth Amendment and article I, section 22 of the Washington
Constitution guarantee criminal defendants the right to effective assistance of

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counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail
on an ineffective assistance of counsel claim, the defendant must show both that
(1) counsel’s representation was deficient and (2) prejudice. Estes, 188 Wn.2d
at 457-58. Representation is deficient if, after considering all the circumstances,
it falls below an objective standard of reasonableness. Estes, 188 Wn.2d at 458.
“A claim that counsel was ineffective is a mixed question of law and fact that we
review de novo.” State v. Jones, 183 Wn.2d 327, 338, 352 P.3d 776 (2015).
We apply a strong presumption that defense counsel’s performance was
reasonable. Estes, 188 Wn.2d at 458. Counsel’s conduct is not deficient if it
was based on what can be characterized as legitimate trial strategy or tactics. Id.
The decision regarding whether and when to object to trial testimony is a “classic
example[ ] of trial tactics.” State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541,
review denied, 193 Wn.2d 1038 (2019). A reviewing court presumes that a
“failure to object was the product of legitimate trial strategy or tactics, and the
onus is on the defendant to rebut this presumption.” State v. Johnston, 143 Wn.
App. 1, 20, 177 P.3d 1127 (2007). To rebut this presumption, “the defendant
bears the burden of establishing the absence of any ‘conceivable legitimate tactic
explaining counsel’s performance.’” State v. Grier, 171 Wn.2d 17, 42, 246 P.3d
1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80
(2004)).
Counsel could not have reasonably anticipated Wood’s testimony that
Outen appeared to be “very used to this,” because it was not responsive to the
prosecutor’s inquiry. In this situation, defense lawyers commonly refrain from

No. 80191-1-I/16
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objecting to a damaging, but fleeting remark, even if they believe an objection
would be sustained. They recognize that by objecting, they draw attention to the
testimony. See State v. Gladden, 116 Wn. App. 561, 568, 66 P.3d 1095 (2003)
(defense counsel may make a reasonable tactical decision not to object to
inadmissible evidence when such an objection may draw undesired attention).
Even assuming the court would have sustained an objection, there was a
reasonable strategic basis to refrain from objecting in order to avoid highlighting
Wood’s unsolicited comment. Harrell cannot overcome the presumption that the
failure to object was tactical.
Manslaughter Lesser Included Offense Instruction
Harrell argues that the trial court erred by refusing to provide a jury
instruction on first-degree manslaughter as a lesser included offense of felony
murder.
A party is entitled to have the jury instructed on a lesser included offense if
that offense satisfies the two pronged test established in State v. Workman, 90
Wn.2d 443, 447-48, 584 P.2d 382 (1978). First, under the legal prong, the lesser
offense must consist solely of elements necessary for the conviction of the
greater offense charged. Id. at 448. Second, under the factual prong, the
evidence must support an inference that only the lesser offense was committed
to the exclusion of the greater offense charged. Id. 	We review the trial court’s
conclusion on the legal prong de novo and review a determination as to the
factual prong for an abuse of discretion. State v. Condon, 182 Wn.2d 307, 315-
16, 343 P.3d 357 (2015).

No. 80191-1-I/17
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On several occasions, the Washington State Supreme Court has rejected
Harrell’s position and held that first-degree manslaughter is not a lesser included
offense of felony murder premised on second-degree assault because it fails to
meet the legal prong of the Workman standard. See State v. Gamble, 154
Wn.2d 457, 469, 114 P.3d 646 (2005). 	(“We hold that first degree manslaughter
is not a lesser included offense of second degree felony murder where second
degree assault ... is the predicate felony”); State v. Tamalini, 134 Wn. 2d 725,
730, 953 P.2d 450 (1998) (accord); State v. Berlin, 133 Wn.2d 541, 550, 947
P.2d 700 (1997). 	As the court explained in Gamble, “manslaughter requires the
proof of a mens rea element vis-à-vis the resulting death, while felony murder,
based on second degree assault does not.” 154 Wn.2d at 469. Second-degree
felony murder predicated on assault, as charged in Gamble’s case, required the
State to prove that the defendant “acted intentionally and ‘disregard[ed] a
substantial risk that [substantial bodily harm] may occur,’” while first-degree
manslaughter required the State to prove that the defendant “‘[knew] of and
disregard[ed] a substantial risk that a [homicide] may occur.’” Id. at 467-68
(alterations in original) (emphasis omitted) (quoting RCW 9A.08.010(1)(c)).
According to Harrell, Gamble is not dispositive because the State alleged
that Gamble committed assault by a single means—intentionally assaulting the
victim and thereby recklessly inflicting substantial bodily harm—but the jury in
this case was also instructed that Harrell could commit the crime by assaulting
the victim with a deadly weapon. See RCW 9A.36.021(1)(a), (c). But in State v.
Davis, 121 Wn.2d 1, 4, 846 P.2d 527 (1993), our supreme court held that first-

No. 80191-1-I/18
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degree manslaughter is not a lesser included offense where felony murder is
predicated on the deadly weapon prong of second-degree assault. And while the
court subsequently overruled the lesser included offense test employed in Davis,
the court has expressly approved of the result in Davis. See Berlin, 133 Wn.2d
at 550; Gamble, 154 Wn.2d at 463-64, n. 6.
The trial court did not err by declining to give Harrell’s proposed lesser
included instruction on first-degree manslaughter.
Statement of Additional Grounds
As explained, before trial, the court ruled that although all alleged prior
acts of violence against Outen were relevant, for the most part, the potential
prejudice outweighed the probative value of the evidence. However, the court
determined that some evidence of violence tied to accusations that Outen was
stealing drugs or money, was relevant to Harrell’s intent and motive at the time of
the stabbing and admissible. The court also ruled that if Harrell offered evidence
of Outen’s alleged violent acts toward him to show his reasonable fear of injury,
the State would be permitted to offer additional evidence of violent acts toward
Outen to provide context and rebut the implication that Outen was the source of
violence in the relationship. Ultimately, the State only introduced evidence of the
conduct Wood witnessed and Harrell did not testify about prior acts of violence
by Outen.
Challenging these pretrial rulings, Harrell argues that Wood and a second
witness who did not testify at trial were not credible and the allegations were not
corroborated by police reports or criminal charges. These arguments largely go

No. 80191-1-I/19
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to the weight of the evidence rather than its admissibility. To the extent Harrell
maintains that Wood’s testimony describing the search of Outen’s body for drugs
was not relevant to his alleged motive in this case, we disagree. Intent and
motive were the central issues in the case. The trial court did not abuse its
discretion in concluding evidence showing that Harrell’s suspicions about Outen’s
stealing directly led to assaultive behavior in the past was relevant. State v.
Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007) (this court reviews
admission of ER 404(b) evidence for an abuse of discretion). And the court’s
ruling on the probative value and prejudice of other prior alleged acts of violence
did not preclude its determination that some of that evidence would become
more relevant, and therefore admissible, if Harrell testified about Outen’s
violence toward him. See State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805
(1998) (trial court has alleged discretion to admit otherwise inadmissible
evidence when witness “opens the door” in testimony and evidence is relevant to
some issue at trial).
Harrell claims that it was misconduct for the prosecutor to speculate about
why he “questioned the timeline” in closing argument. He also asserts that the
prosecutor mischaracterized the evidence by stating that the knife was pointing
“down” and “across” Outen’s chest when the medical examiner described the
angle of the knife as “slightly” downward.
The prosecutor argued that Harrell’s testimony was inconsistent with the
video surveillance footage obtained from an adjacent business that showed
people coming and going from the RV during the night of the crime. The

No. 80191-1-I/20
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prosecutor’s suggestion that Harrell interpreted the video evidence in a manner
that aligned with his version of the incident was not misconduct. The
prosecutor’s description of the knife entry wound was also consistent with the
evidence.
Harrell alleges ineffective assistance of counsel based on counsels’
decision not to present the testimony of an expert witness who could have
testified about the general effects of drugs he consumed on the night of the
stabbing. The decision of whether to call an expert witness generally falls within
the province of tactical decisions. See In re Personal Restraint of Benn, 134
Wn.2d 868, 900, 952 P.2d 116 (1998) (counsel not required to call all available
witnesses); see also State v. Mannering, 150 Wn.2d 277, 287, 75 P.3d 961
(2003) (decision not to call defense expert witness was tactical). The expert
testimony at issue would not have established that Harrell was unable to form the
intent to commit assault in the second-degree. And the failure to call the witness
did not preclude the argument that the effects of drug use played a role in the
crime. Harrell fails to demonstrate constitutionally ineffective representation.
Harrell also claims that defense counsel performed deficiently by
contradicting his testimony. It is true that Harrell testified that he intended to cut
the heroin in order to sell it, whereas counsel’s closing remarks indicated that he
intended to prepare an injection. But the critical facts of Harrell’s testimony were
that he retrieved the knife to cut heroin, not to attack Outen, and he provoked
Outen by refusing her demand for drugs. Harrell offers no persuasive

No. 80191-1-I/21
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explanation as to why he was prejudiced by the discrepancy with regard to an
inconsequential detail of his testimony.
Harrell also alleges ineffective assistance with respect to other evidence
that he believes might have been helpful to his case. But this claim involves
facts outside the record, cannot be resolved on direct appeal, and may be raised
only in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322,
338, 899 P.2d 1251 (1995). In addition, Harrell’s appellate counsel’s brief
adequately presents his claim regarding the failure to give his proposed self-
defense instruction. We decline to further address that issue. See State v.
Johnston, 100 Wn. App. 126, 132, 996 P.2d 629 (2000).
Finally, Harrell argues that cumulative error deprived him of a fair trial.
But, as here, where the appellant demonstrates no errors, the cumulative error
doctrine does not apply. See State v. Clark, 187 Wn.2d 641, 655, 389 P.3d 462
(2017).
Affirmed.
WE CONCUR: