State Of Washington, V William C. Williams
CourtCourt of Appeals of Washington
Date FiledNovember 10, 2026
Docket60299-7
StatusUnpublished
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Full Opinion
Filed
Washington State
Court of Appeals
Division Two
November 10, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 60299-7-II
Respondent,
v.
WILLIAM CHARLES WILLIAMS, UNPUBLISHED OPINION
Appellant.
CRUSER, J.—William Charles Williams appeals his convictions for the second degree
murder of Janus Afo, drive-by shooting, and second degree unlawful possession of a firearm.
Williams argues that (1) the trial court erred when it excluded certain reputation testimony, (2) the
prosecutor improperly introduced facts not in evidence in closing argument, (3) the trial court erred
when it gave the jury a first aggressor instruction, and (4) the prosecutor’s comments during voir
dire amounted to prosecutorial misconduct.
We agree with Williams on the first three issues and hold that the cumulative effect of these
errors amounted to cumulative error and require the reversal of the second degree murder and
drive-by shooting convictions. We address the fourth issue briefly to offer guidance on remand.
Regarding the additional issues that Williams raises, we decline to address those issues in light of
our reversal.
No. 60299-7-II
FACTS
I. BACKGROUND
On the evening of September 27, 2023, through the early morning of September 28, Afo
and his girlfriend Santana Krise spent part of the evening at a casino and then drove to another
location to pick up some money owed to another person. Upon returning home, Afo went inside
and Krise remained behind to clean out the car.
Before Krise had finished, Afo returned to the car in a hurry and told her that they needed
to go somewhere. Afo, with Krise as a passenger, drove to a house on Cedar Street.
When Afo arrived at the Cedar Street house, Williams was outside the house in his Toyota
Camry with his girlfriend. Williams’ girlfriend was driving, and she began backing out just as Afo
pulled up parallel to the passenger side of the Camry.
Williams’ and Krise’s accounts of what happened next differed slightly.
According to Williams, after pulling up next to the Camry, Afo immediately jumped out
of his car and tore the passenger side mirror off the Camry. Afo then kicked the Camry several
times and reached down, grabbed some gravel, and threw it at the Camry’s passenger side window.
Afo then attempted to pull open the Camry’s passenger side window and open the passenger side
door. When Afo managed to get the door open, Williams drew his firearm and fired at Afo because
he feared for his safety. Williams testified that the entire confrontation took about 20 seconds.
According to Krise, although she recognized the Camry as Williams’ vehicle when they
pulled up, she could not see who was inside the Camry because of its darkly tinted windows. Upon
arriving, Afo immediately exited his car and approached the Camry saying “[s]omething along the
lines of where the eff do you think you’re going?” Verbatim Rep. of Proc. (VRP) at 941. Krise’s
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No. 60299-7-II
recollection of the incident was similar to Williams’, but she did not recall seeing Afo tear off the
mirror, and she did not mention Afo trying to open the Camry’s window or door. Instead, she
stated that after Afo had thrown the gravel at the Camry, the Camry started to move forward, and
the door flung open, revealing Williams. Williams then shot Afo. Krise testified that the entire
confrontation took only a matter of seconds.
After the shooting, Williams’ girlfriend drove away. Although Krise and other people at
the scene tried to save Afo, he died from his injuries.
After leaving the Cedar Street residence, Williams abandoned the Camry and fled to
Oregon. He was arrested about two weeks later.
The State charged Williams with first degree murder, drive-by shooting, and second degree
unlawful possession of a firearm. Williams pleaded not guilty and asserted that he had acted in
self-defense.
II. PROCEDURE
A. MOTION TO ADMIT REPUTATION EVIDENCE
Before trial, Williams sought the admission of reputation evidence through a non-law-
enforcement witness, Davey Newby. Williams asserted that this evidence was relevant to his self-
defense claim and to support an inference that Afo was the aggressor.
In an offer of proof, Newby, a former drug user, testified that he had lived in the area all
his life and that he had known Afo for 25 years. Afo had been one of his good friends, and they
had engaged in various illegitimate business dealings during the times they were both using drugs.
At one point, Afo stopped using drugs and left the State, but he later returned to the community
and began using drugs again.
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No. 60299-7-II
Newby testified that during the time he had known Afo, there were other people in the drug
community who also knew Afo. Newby stated that it was “a small community,” and they all knew
one another. 19 VRP (Sep. 17, 2024) at 178. Newby estimated that the community included about
50 people with whom he had discussed Afo’s reputation. Within this community, Afo had a
reputation for violence and quarrelsome behavior when under the influence of drugs. Newby
further testified that he was not aware of anyone outside of the drug community who was aware
of Afo’s reputation because Afo did not participate in the outside community.
Based on this offer of proof, Williams argued that Newby should be allowed to testify
about Afo’s reputation for violence because he had extensive knowledge of Afo’s reputation within
the community in which Afo resided. The State responded that the drug community was not a
neutral or general community.
The trial court excluded Newby’s reputation testimony after concluding that the drug
community was not a general and neutral community because it was a small community that was
more akin to a family group or a group of close friends:
I think what the Court’s focusing on right now is the community. The
witness testified that it is a small community. Didn’t define what that meant, but he
did say it was a small community, and it was only people in the drug community.
And so, I don’t know what - how you define what the drug community is, outside
of, I’m anticipating, people with drug addiction problems. And the scope of that
community certainly was not defined, and the only definition that the Court gleaned
from the evidence, that was a small community.
Then we deal with the neutrality of this witness, who indicates that he was
a good friend of Mr. Afo for twenty-five years. However, that the focus of the
questioning was on his knowledge of his - of the community. And then when I -
when you go to where does this knowledge come from, yes, there - the people
making - purportedly making statements to the witness are people who have crimes
of dishonesty and have to be looked to, in some degree, of suspect to the veracity.
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No. 60299-7-II
It’s a general community is what the Court has to look to, not a specific
community. I understand that it goes to things such as - and in the case, Callahan[1],
it was a work community of twelve hundred people that worked with him seven
days a week, so there was that connection over long periods of time with a fairly -
twelve hundred people - eleven hundred people, I’m sorry - that really creates that
community, as opposed to this loose, undefined drug community.
I have a hard time distinguishing a drug community from even that of an
analogy of knowledge within a family, as to what his propensities might be. I think
it’s pretty comparable, at best, so I don’t think that you meet the level of community
that would need to be testified to by a witness to - in order to establish a character
trait, so I’m going to deny that offer of that witness.
Id. at 189-91 (emphasis added).
B. VOIR DIRE
During voir dire, the prosecutor asked the potential jurors what they thought the
prosecutor’s role was. Some of the potential jurors responded that it was the prosecutor’s role to
present evidence with the intent of obtaining a conviction.
The prosecutor then asked another potential juror whether the prosecutor’s role within the
community was solely to secure the conviction of everyone charged with a crime. The potential
juror responded that it was the prosecutor’s job to “ensure a fair trial for everyone” but also to
provide the evidence to establish guilt. 21 VRP (Sep. 18, 2024) at 422. The prosecutor in turn
responded that the pursuit of justice was “[t]he main role of the prosecutor.” Id. And he stated that
part of that role was “presenting evidence to secure a conviction” but that “at the end of the day”
it was up to the jury to determine guilt or innocence. Id.
When another potential juror commented that it was the prosecutor’s role to present the
evidence “in an honest and truthful way . . . just like the other side,” the prosecutor responded, “I
1
State v. Callahan, 87 Wn. App. 925, 943 P.2d 676 (1997).
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No. 60299-7-II
like that, an honest and truthful way. I would characterize that as I’m - my job and my role is to
produce every bit of admissible evidence for you guys to decide to ensure Mr. Williams is given a
fair trial. Is that safe to say?” Id. at 423-24. The potential juror agreed.
The prosecutor then asked another potential juror what the defense’s role was. They
responded that the defense’s role was “[t]o defend the person in question[ ].” Id. at 424. The
prosecutor replied, “You’re right. I’ll characterize it. His role is to rely on his constitutional rights,
and that is to demand a fair trial.” Id. The prosecutor then commented, “So, he doesn’t have to do
anything.” Id. The prosecutor then asked the potential jurors if they would hold it against Williams
if he did not testify. The potential juror responded that they would not hold this against Williams.
The prosecutor then asked the potential jurors about the jury’s role. The potential juror
responded that the jury’s role was to examine the evidence from an impartial perspective and come
to a verdict. The prosecutor stated that he agreed and that the jury was the sole judge of credibility
and emphasized that this included judging Williams’ credibility should he choose to testify.
In his follow-up voir dire, the prosecutor asked the potential jurors who the prosecutor
represented. When a potential juror responded that the prosecutor represented everyone in the state,
the prosecutor asked if that included Williams. A potential juror responded that it included
Williams because he was also a resident of the state. The prosecutor then asked if he was required
to ensure that Williams’ constitutional rights were protected because he was charged with an
offense in the county. The juror responded, “Yes.” Id. at 465.
Williams did not object to any of the prosecutor’s statements during voir dire.
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No. 60299-7-II
C. TESTIMONY
1. STATE’S EVIDENCE
The State presented testimony from the law enforcement officers and crime scene response
team members who responded to and investigated the incident, the technicians who tested the
evidence, a witness who had seen Williams with a firearm a couple of weeks before the shooting,
and Krise.
The local law enforcement officers testified that they responded to a “chaotic” scene and
that it was difficult to control and preserve the scene with their limited resources while also
attempting to help Afo. 22 VRP (Sep. 20, 2024) at 536. Ultimately, the Washington State Patrol
(WSP) was called in to help process the scene and the evidence found at the scene.
Several WSP forensics scientists testified that it was difficult to preserve the incident scene
and evidence on the Camry because of the wet weather at the time of and after the shooting. A
responding officer testified that they found the Camry’s mirror at the scene. A forensic scientist
also testified that they did not find any of Afo’s DNA on the Camry but that the DNA from one of
the WSP crime scene response team members was found on the door handle. And another forensic
scientist testified that when they examined the Camry, they had to open the doors to see inside the
car because of the darkly tinted windows.
The State also presented testimony from a witness who lived near where the shooting
occurred. This witness testified that he had talked to Williams a couple of weeks before the
shooting about some local car prowlers, and Williams had shown him a firearm.
Krise testified consistently with the facts set out above.
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No. 60299-7-II
2. DEFENSE EVIDENCE
Williams was the sole defense witness. He testified consistently with the facts set out
above.
In addition, he testified that he had known Afo more than 20 years, that he considered him
a “brother,” and that they had frequently socialized. 26 VRP (Oct. 2, 2024) at 978. Williams denied
having any personal issues with Afo. But Williams testified that at the time of the shooting, Afo
believed he owed him money because Williams’ girlfriend owed another person money.
Williams further testified that about a week before the shooting, Afo had texted him and
asserted that Williams owed him money. When Williams responded that he did not owe Afo any
money, Afo responded, “[K]eep that same energy; I’ll see you soon.” Id. at 979. Williams stated
that he interpreted this as a threat and that he took this threat seriously because Afo “isn’t
somebody you mess around with.” Id. at 980. Williams also stated that at that time he had no
money, was homeless and jobless, and was living in his car, so he was unable to pay anything.
Williams denied doing anything to provoke Afo at the time of the shooting and said that
they did not say anything to each other when Afo first arrived. But Williams testified that when
Afo tore off the passenger side mirror, “danger bells went off in [his] head.” Id. at 981. At that
point, “[he] knew that [Afo] was there to do some significant damage to [him] or make [him] pay
the money” that Afo asserted Williams owed him. Id.
Williams testified that when Afo then started to kick the passenger side door, he “was afraid
that [Afo] was going to get in the car and try to hurt [him],” but he still did not shoot Afo. Id. at
982. It was not until Afo got the door open and repeatedly tried to get into the Camry that Williams
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No. 60299-7-II
believed that he would either be kidnapped or “who knows what,” that he pulled out his gun and
shot Afo. Id. at 985.
Williams also testified that he was unable to ignore Afo’s demands for money because Afo
was “an enforcer” and “a debt collector” who collected debts by violence or by any means
necessary. Id. at 978. Although Afo had never personally attacked Williams before this incident,
Williams testified that he had known Afo to kidnap people, commit home invasion robberies, and
“even hit people with swords or multiple different types of weapons.” Id. at 979. Williams further
testified that after the shooting, he left the scene because he felt that his life was in danger.
In addition, Williams testified that he had prior felony convictions and that on the date of
the incident he possessed a firearm. He also stipulated to having several prior felony convictions.
D. JURY INSTRUCTIONS
After both parties rested, the State requested a first aggressor instruction. The State argued:
The State is asking that the Court instruct the aggressor [sic], and the State would
submit that there is evidence that Mr. Williams was the aggressor as this is a[n]
allegation about a debt where there is testimony both from Ms. Krise and the
defendant himself that there was communications between the two individuals
surrounding this alleged debt. And so, therefore, the jury should be instructed on
the aggressor, and it should be left up to argument by the - by counsel.
Id. at 1024. Defense counsel responded that this did not demonstrate that Williams provoked an
assault.
When the trial court then asked the State to point to evidence showing that Williams
intentionally engaged in an act that was likely to provoke a belligerent response, the State
responded,
Yes, Your Honor. It was the reversing of the vehicle and him opening that door.
Your Honor, the State gets to argue what this evidence is. There’s going to be one
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No. 60299-7-II
side of what occurred outside that vehicle and there’s going to be another argument
of what occurred outside that vehicle, and it’s going to be up to the jury to decide.
....
. . . . Keep in mind there’s evidence that this car was in motion and the door was
opened. Now, who opened the door? That’s going to be at issue here. I would
submit to the Court that if the jury believes that the defendant opened that door and
[Afo] did not open that door that he’s the aggressor here. This is a moving vehicle.
Id. at 1025. Williams then responded that the aggressive act cannot be the act of the charged crime
itself.
The trial court again asked the State what actions by Williams, prior to Afo’s belligerent
acts, could have provoked Afo’s actions. The State responded,
He’s in a vehicle, --
....
. . . . which he has indicated, with his girlfriend, and a debt is owed and they have
left the scene. They are leaving - they are actively leaving the scene. And he even
testified the reason why he was leaving the scene was the debt. Keep in mind, he’s
arguing that you can’t - that I can’t argue that [Afo] was lawful, legally going to
collect a debt. That’s absurd. His - he has indicated through his own testimony that
he has acknowledged that there was a debt owed between the person within that
car, and that car is moving. The leaving of the scene is an action likely to provoke
a belligerent response. And actually, we could argue that it provoked it. There was
a belligerent response. And then the defense gets to argue the stand your ground;
they get the argue the necessity; they get everything.
Id. at 1026-27.
The trial court agreed with the State and gave the jury the first aggressor instruction. The
trial court also instructed the jury on self-defense in relation to both the murder and the drive-by
shooting charges. The trial court did not instruct the jury that it could not find that Williams was
the first aggressor if his sole aggressive act was the basis for the charge. See State v. Grott, 195
Wn.2d 256, 272, 458 P.3d 750 (2020).
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No. 60299-7-II
E. CLOSING ARGUMENTS
1. STATE’S ARGUMENT
In its closing argument, the State argued that Williams’ self-defense claim wase not
credible because it was not supported by the evidence and that Williams used excessive force.
2. WILLIAMS’ ARGUMENT
In his closing argument, Williams argued that he had acted in self-defense and that even
Krise’s testimony demonstrated that Afo was the first aggressor. Williams also argued that the law
enforcement officers had botched the investigation and missed or ignored clues that would have
supported his self-defense claim. In addition, he asserted that there were reasonable explanations
for why Afo’s DNA was not found on the Camry.
Williams further asserted that he had provided the jury with a reasonable explanation for
why he had fled to Oregon and that the evidence supported his assertion that he feared retaliation.
3. STATE’S REBUTTAL
In its rebuttal, the State compared Williams’ testimony about the shooting with Krise’s
testimony, and suggested, for the first time, that Afo kicked the Camry’s door in an attempt to keep
it shut after seeing that Williams was armed:
The defense wants you to believe and speculate a certain way. I’m going to
ask you to believe and speculate a different way, because the evidence, I submit to
you, more closely aligns with this. Janus Afo was walking up to that vehicle. Janus
Afo sees William Williams in that passenger side. Janus Afo sees William Williams
with a firearm in his hand. Janus Afo sees that door to be open. He grabs ahold of
that side mirror and he kicks it shut with his left foot. And you will see his left shoe.
And Janus Afo falls backwards. Janus Afo is at a distance. William Williams opens
that door and fires one shot. You either kick a door open or you kick it closed. They
want you to believe that this two-hundred-and-seventy-five, 6’ 1” man was going
to get into that car. I’d submit to you if he wanted to get into that car he would have.
He wasn’t. He was trying to kick that door closed because he saw William with a
gun in his hand in that vehicle.
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No. 60299-7-II
And why do I say all this? It’s because there is no DNA on the window. The
defense takes the stand - or the defendant took the stand and said, oh, it’s because
he used his sweatshirt up like this and he saw, and he was pulling it down with his
sweatshirt and so his sweatshirt wasn’t going to leave any DNA. I also ask for you,
if you’re in a vehicle, what’s routine? The doors are locked. There’s no way Mr.
Afo could have opened the door because reasonable people have their doors locked.
And let’s say if Mr. Williams sees him coming towards the vehicle, what’s a
reasonable person going to do? You’re going to lock the door. Keep in mind, this
vehicle was in motion.
26 VRP (Oct. 2, 2024) at 1117-19 (emphasis added). Williams did not object to this argument.
Later, the State reasserted that Williams was the first aggressor,
[STATE:] You also have the aggressor instruction. No person, by any intentional
act reasonably likely to provoke a belligerent response, create[s] a necessity for
acting in self-defense. Why do I tell you and why do I submit that Mr. Afo saw Mr.
Williams with a gun in his hand in that car? It’s because that’s what provoked the
belligerent response.
[DEFENSE COUNSEL]: Objection, there’s no facts in evidence.
THE COURT: It’s, it’s argument. Overruled.
[STATE]: He was kicking that door closed. His shoe fell off. How does
your shoe fall off if you’re kicking something is you’re falling away. You’re falling
away. You’re holding onto that mirror. That’s what’s making your shoe fall off. If
you want to kick a door and you’re doing it with force, your shoe’s not falling off
because you’re going at it and at it and at it. He was falling away because he saw
that door open. He saw Williams with that firearm, and he didn’t want to get shot.
There’s no evidence that he ripped off the mirror, other than his own
testimony. So, once again, go back. Why would you believe that? Why would some
- how can somebody rip something off in this, he says, twenty seconds. Ms. Krise
says mere seconds. It’s falling backwards, ladies and gentlemen. It’s falling
backwards.
He is retreating. He’s going towards the driver’s door. And how do we know
he’s going towards that driver[’s] door? Because that’s where the blood splatter or
drop is.
Id. at 1123-24 (emphasis added).
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No. 60299-7-II
The State also asserted that there was no evidence that Williams reasonably believed that
Afo intended to inflict death or great bodily injury.
F. VERDICT
The jury found Williams guilty of the lesser included offense of second degree murder,
drive-by shooting, and second degree unlawful possession of a firearm.
Williams appeals his convictions.
ANALYSIS
Williams argues that (1) the trial court erred when it excluded Newby’s reputation
testimony, (2) the prosecutor improperly introduced facts not in evidence in closing argument
when he argued in rebuttal that Afo was retreating when he kicked the car door because he saw
Williams with a gun in his hand, (3) the trial court erred when it gave the jury the first aggressor
instruction, and (4) the prosecutor’s comments during voir dire amounted to prosecutorial
misconduct. We agree with Williams on the first three issues and hold that the cumulative effect
of these errors require the reversal of the second degree murder and drive-by shooting convictions.
Regarding the fourth issue, we address it briefly to offer guidance on remand. Regarding the
additional issues that Williams raises, we decline to address those issues in light of our reversal.
I. ISSUES RELATED TO SECOND DEGREE MURDER AND DRIVE-BY SHOOTING CONVICTIONS
A. NEWBY’S REPUTATION TESTIMONY
Williams argues that the trial court erred when it refused to admit Newby’s testimony
regarding Afo’s reputation for aggression and violence within the local drug community. Williams
contends that the trial court’s conclusion that the local drug community was more like family than
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No. 60299-7-II
an identifiable societal group because the group was small was the basis of the trial court’s decision
and that this conclusion was error. We agree.
1. LEGAL PRINCIPLES
We review a trial court’s ruling excluding reputation evidence for abuse of discretion. State
v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). “A trial court abuses its discretion when it acts
in a manner that is manifestly unreasonable or based on untenable grounds or reasons.” Id.
Generally, evidence of a person’s character is inadmissible “for the purpose of proving
action in conformity therewith on a particular occasion.” ER 404(a). But “[a] victim’s reputation
for violence is admissible when the defendant alleges self-defense and shows that knowledge of
the victim’s reputation for violence contributed to the [defendant’s] [reasonable] apprehension.”
Callahan, 87 Wn. App. at 934; ER 404(a)(2). Such evidence can be proved by “testimony as to
reputation.” ER 405(a). But “reputation evidence must be based upon the witness’s personal
knowledge of the victim’s reputation in a relevant community during a relevant time period.”
Callahan, 87 Wn. App. at 934.
“To establish a valid community, the party seeking to admit the reputation evidence must
show that the community is both neutral and general.” Land, 121 Wn.2d at 500. “With respect to
reputation evidence, our Washington State Supreme Court has held that ‘there should be no
restriction necessarily limited to the community in which the witness sought to be impeached lives
. . . .’ ” State v. Carol M.D., 89 Wn. App. 77, 95, 948 P.2d 837 (1997), withdrawn in part adhered
to in part on remand, 97 Wn. App. 355, 983 P.2d 1165 (1999) (internal quotation marks omitted)
(quoting Land, 121 Wn.2d at 498). Instead, the concept of “ ‘community’ ” includes “ ‘any
substantial community of people among whom [the person] is well known.’ ” Land, 121 Wn.2d at
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No. 60299-7-II
499 (quoting 1 MCCORMICK ON EVIDENCE § 43 (John W. Strong ed., 4th ed. 1992)). This rule
reflects the belief that “it [is] best to restrict evidence concerning a person’s reputation to that
group of people who knew the [person] best.” Id. at 498.
A nonexclusive list of factors that are relevant to determining whether a community is a
neutral and general community includes “the frequency of contact between members of the
community, the amount of time a person is known in the community, the role a person plays in the
community, and the number of people in the community.” Id. at 500. A defendant’s reputation
within a family group is generally not considered to be general or neutral because family groups
tend to be small and “the inherent nature of familial relationships often precludes family members
from providing an unbiased and reliable evaluation of one another.” State v. Gregory, 158 Wn.2d
759, 805, 147 P.3d 1201 (2006), overruled on other grounds by State v. W.R., Jr., 181 Wn.2d 757,
336 P.3d 1134 (2014).
2. ABUSE OF DISCRETION
Newby testified that the relevant community was the local “drug community,” that he and
Afo had been a member of this community for approximately 25 years, that this was Afo’s
exclusive community, that the community was small, and that he (Newby) had spoken to about 50
people within the group about Afo’s reputation for violence. In addition, Newby’s testimony
established that the local drug community was Afo’s only community. This community was also
highly relevant because Afo and Williams were both members of the community.
Newby’s offer of proof clearly established that the Land factors weighed in favor of the
admissibility of his reputation testimony. Although the trial court concluded that the entire
community was more like a family or group of close friends, nothing in the offer of proof
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No. 60299-7-II
demonstrated that Afo had a familial relationship with anyone within the community or a close
friendship with anyone in the community other than Newby. Because the trial court’s conclusion
that this community was more like a familial association or a group of close friends was conjecture,
the trial court abused its discretion in excluding Newby’s reputation testimony.
B. INTRODUCING FACTS NOT IN EVIDENCE
Williams further argues that the prosecutor improperly introduced facts not in evidence in
his rebuttal argument when he argued that Afo was retreating when he kicked Williams’ car door
because he saw Williams with a gun in his hand.2 The State argues that the prosecutor was arguing
reasonable inferences from the evidence. We agree with Williams.
“Prosecutors have wide latitude to argue reasonable inferences from the evidence in closing
argument.” State v. Houser, 30 Wn. App. 2d 235, 272, 544 P.3d 564, review denied, 3 Wn.3d 1015
(2024). But a prosecutor must not “submit evidence to the jury that has not been admitted at trial.”
In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 705, 286 P.3d 673 (2012). “A prosecutor may
not suggest that evidence not presented at trial provides additional grounds for finding a defendant
guilty.” State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994).
Williams is correct that the State’s rebuttal argument is not supported by the record. There
was no testimony that Afo saw a gun in Williams’ hand before Afo attacked the Camry and the
evidence presented does not support this inference. The evidence shows that Afo immediately
began kicking the Camry; that the Camry’s windows were so darkly tinted that it was difficult to
see who was in the Camry let alone see a gun in someone’s hands; and Afo paused to reach down
2
We note that the first time the State mentioned the theory that Afo had seen Williams with a gun
in his hand before Afo started acting aggressively toward Williams was in the State’s rebuttal. The
State did not make this same argument in support of its request for the first aggressor instruction.
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No. 60299-7-II
and grab rocks to throw at the Camry, which would be wholly inconsistent with having seen
Williams with a firearm and trying to retreat or trying to kick the door shut. Accordingly, the
prosecutor erred when he presented this argument.
C. FIRST AGGRESSOR INSTRUCTION
Williams further argues that the trial court erred when it gave the State’s first aggressor
instruction. The State appears to concede that the first aggressor instruction was not supported by
the evidence. We agree.
1. LEGAL PRINCIPLES
We review de novo a trial court’s decision to give a first aggressor jury instruction. State
v. Kee, 6 Wn. App. 2d 874, 878, 431 P.3d 1080 (2018). “Jury instructions are sufficient if they are
supported by substantial evidence, allow the parties to argue their theories of the case, and when
read as a whole properly inform the jury of the applicable law.” State v. Clausing, 147 Wn.2d 620,
626, 56 P.3d 550 (2002). Jury instructions are reviewed on “a case-by-case inquiry.” Grott, 195
Wn.2d at 271. In making this determination, we view the evidence in the light most favorable to
the party who proposed the instruction, here the State. Id. at 270.
A defendant’s use of force is lawful, and self-defense can be asserted as a defense if the
defendant subjectively and reasonably believed that the victim would inflict imminent harm. Id. at
266. But a defendant cannot invoke self-defense if they were the first aggressor. Id.
First aggressor jury instructions should be given if the evidence supports the instruction.
Id. at 270-71. There is sufficient evidence to support a first aggressor instruction when the jury
could determine through credible evidence that the defendant provoked the need to act in self-
defense either by a separate aggressive act or by engaging “in a course of aggressive conduct,
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No. 60299-7-II
rather than a single aggressive act.” Id. at 271, 273. The provoking act cannot, however, be the
assault with which the defendant is charged. Id. at 271.
2. FIRST AGGRESSOR INSTRUCTION NOT SUPPORTED
As the State appears to recognize, taking the evidence in the light most favorable to the
State, the evidence did not show that Williams acted in an aggressive manner during the short time
leading up to the shooting. All the evidence showed that the entire incident took place during a
matter of seconds and that Afo confronted Williams in an aggressive manner immediately upon
leaving his vehicle. Regarding Williams’ behavior, the evidence shows only that he was trying to
leave in the Camry and that his sole act of aggression was the shooting. There is no evidence that
Williams engaged in a separate instance of aggression before the shooting or that he engaged in a
course of aggressive conduct rather than a single aggressive act.
Even if, as the prosecutor suggested in in his rebuttal, Afo had seen that Williams had a
gun as Williams attempted to exit the Camry, there is no evidence suggesting that this was a
separate display of the weapon or part of a course of aggressive conduct rather than part of
Williams’ act of shooting at Afo. Because Williams’ possession and display of the gun was part
of a single aggressive act, the trial court erred when it gave the first aggressor instruction.
D. CUMULATIVE ERROR
Having determined that Williams has established three errors that could potentially have
affected his second degree murder and drive-by shooting convictions, we next turn to whether
these errors require reversal of those convictions. Presuming, but not deciding, that each of the
three errors would not individually warrant reversal, we hold that the cumulative effect of these
errors denied Williams his right to a fair trial.
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No. 60299-7-II
When the combined effect of trial errors effectively denies a defendant of their right to a
fair trial, even if each individual error would alone be harmless, we may reverse a defendant’s
conviction under the cumulative error doctrine. State v. Lazcano, 188 Wn. App. 338, 370, 354 P.3d
233 (2015). It is the defendant’s burden to establish that the accumulated prejudice from multiple
trial errors affected the outcome of their trial. Id.
First, the trial court’s erroneous decision to exclude Newby’s reputation testimony
weakened Williams’ self-defense claim. Although the exclusion of this testimony did not prevent
him from presenting his self-defense claim altogether, it meant that the only evidence of Afo’s
reputation for violence came from Williams, who was clearly an interested party. The admission
of Newby’s testimony would have provided support for Williams’ testimony about Afo’s
reputation for violence and supported his reasonable fear of Afo and, in turn, his self-defense claim.
Second, permitting the State to argue facts outside of the record could have misled the jury,
particularly when the trial court failed to correct this misstatement of the facts by addressing the
substance of Williams’ objection. And permitting the State to make this argument in rebuttal is
especially egregious because it deprived Williams of any opportunity to respond to this argument.
Furthermore, introducing a factual assertion that is not in evidence is a serious trial irregularity
when it could have the effect of nullifying a defendant’s theory of the case. The jury members,
who are instructed that they must rely on their memories of the testimony, could have surmised
that they merely forgot this part of the testimony.
And third, the improper first aggressor instruction, coupled with the improper introduction
of evidence during rebuttal argument, could have permitted the jury to conclude that Williams was
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No. 60299-7-II
not entitled to claim self-defense because he was the first aggressor based solely on a single
aggressive act that was the basis of the charged offense.
All three errors affected Williams’ self-defense claim. We hold that, considered together,
the improper instruction and argument, combined with the improper limitation on evidence
supporting his self-defense claim impaired his ability to present his defense and deprived Williams
of a fair trial on the second degree murder and drive-by shooting charges. Accordingly, we reverse
those convictions.
II. PROSECUTORIAL MISCONDUCT IN VOIR DIRE
Williams also argues that the prosecu