State v. Fleeks

• Decision Date: 23 January 2023
• Docket Number: 82911-4-I
• Citation: 523 P.3d 220
• Parties: STATE of Washington, Respondent, v. Robert M. FLEEKS, Jr., Appellant.
• Court: Washington Court of Appeals

523 P.3d 220

STATE of Washington, Respondent,

v.Robert M. FLEEKS, Jr., Appellant.

No. 82911-4-I

Court of Appeals of Washington, Division 1.

Filed January 23, 2023

Jennifer J. Sweigert, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Mann, J.

¶1 Robert Fleeks Jr. was convicted of one count of second degree murder and one count of unlawful possession of a firearm in the second degree. Fleeks raises several arguments on appeal, including that his defense counsel was ineffective in failing to request a jury instruction on revived self-defense after the trial court granted the State's request for a first aggressor jury instruction. We agree with Fleeks that his trial counsel was ineffective and reverse his conviction for second degree murder and remand for a retrial.

¶2 Fleeks also argues that he was denied the right to a jury drawn from a fair cross-section of the community, denied the right to a fair trial because a security guard was stationed behind him while he testified, denied the right to a fair trial because the trial court allowed improper opinion testimony on guilt, denied the right to confront witnesses when the trial court excluded evidence that a key witness was on probation, and that the prosecutor committed misconduct. We disagree.¹

¶3 We reverse² the second degree murder conviction and remand for trial. We affirm the conviction for second degree unlawful possession of a firearm.

I.

¶4 Nineteen-year-old Fleeks often sold drugs on the streets of Seattle to make money.³ On December 3, 2018, Fleeks was in the Pioneer Square neighborhood of Seattle selling drugs. After Fleeks received a text message from an unknown number, one of Fleeks's regular customers approached him and told him the text message was from Marlin George who wanted to buy some crack cocaine. Fleeks met George and sold him a small amount of crack cocaine. George smoked the crack cocaine immediately and asked for more. After Fleeks gave George some more crack cocaine, George reached into his pocket as if to get his money, but then ran away with the drugs before paying Fleeks. Fleeks followed after George.

¶5 According to Fleeks's testimony at trial, Fleeks caught up with George in front of the Best Western Hotel in Pioneer Square and asked for his drugs back. George responded with strange hand gestures, incomprehensible mumbling, and pointing for Fleeks to go away. Then Fleeks saw George reach into his sock. Fleeks testified that he knew George could not have put the drugs into his sock because Fleeks would have seen him do so. Fleeks testified that he also saw a "glint of something" and concluded that George was reaching for a knife. As George moved closer, Fleeks kicked and brushed the side of George's head.

¶6 George then began to empty his pockets onto the sidewalk, as if to show that he did not have the drugs. As Fleeks was bent over looking down at the items on the ground, he testified he thought George was "lining up" as if preparing to throw a punch. George also continued to make strange hand gestures and mumble.

¶7 Fleeks testified that at this point he told George he was leaving and turned to walk away. As he walked, he looked behind and saw that George was following him. He saw George make a throat cutting gesture that Fleeks interpreted as a death threat. Fleeks stopped walking and put his back against the building wall because he did not want George behind him. As the two faced off, Fleeks testified that he saw George reach into his pocket, at which point Fleeks took out his gun and hit George with it. As he hit him, the base part of the gun fell apart and the bullets fell on the ground.

¶8 Fleeks testified that as he was looking at the bullets on the ground, George swung at him. As he did so, Fleeks testified that he saw a glint in George's hand again and thought it was a blade. Fleeks backed down the sidewalk as George was swinging at him, eventually stepping backwards of the sidewalk.

At that point Fleeks testified that he lost his balance, pulled his gun out of his back pocket, and fired one time from his hip.

¶9 After Fleeks checked himself to see if he had been shot, he walked back to where the bullets fell to the sidewalk. George was still standing up, stumbling and then fell to the ground. Fleeks testified that he did not know at that point if George had been shot; he did not see any blood. Fleeks checked the items George had dropped on the ground for the crack cocaine, and then tried to engage George but he wasn't responding. Fleeks then took off running.

¶10 Responding officers found George "pretty much lifeless." He had a crack cocaine pipe clutched in his left hand and a gunshot wound to his chest. George died later in the hospital. George had crack cocaine concealed behind his upper lip.

¶11 Police officers found Fleeks running through Pioneer Park. Ignoring commands to stop, Fleeks ran into an alleyway, abandoned his jacket in a stairwell, and discarded his pistol in the back of a garbage truck. Officers detained Fleeks and Anthony Leui identified him as George's assailant. Officers recovered nine unfired rounds of ammunition, baggies of crack cocaine, and a $100 bill in a trash pile near the alley. Fleeks's jacket contained an electronic scale, another baggie of crack cocaine, the baseplate for a pistol magazine, and ammunition. Officers also found a red beanie containing loose cigarettes in the alley.

¶12 Various surveillance cameras and Joshua Villalta's cell phone recorded a majority of the events. In the recordings, George appears intoxicated and is stumbling and swaying. Various cameras show George running for several city blocks, with Fleeks in pursuit, until they stop in front of the Best Western. George and Fleeks appear to have an animated discussion. When George bends over, Fleeks kicks him in the head. George then empties his pockets onto the ground and Fleeks looks through the items. George periodically lifts his shirt, presumably to show Fleeks that nothing is concealed.

¶13 Fleeks appears to walk away with George following close behind and to his side. Fleeks then strikes George with a pistol. George throws a hard punch at Fleeks. After walking away, Fleeks returns and begins picking small objects from off the ground and rifling through George's pockets. Fleeks finally picks up the loose cigarettes and runs from the scene.

¶14 The State charged Fleeks with one count of murder in the second degree, and one count of unlawful possession of a firearm in the second degree. The jury convicted Fleeks as charged. The court imposed an exceptional sentence below the standard range based on Fleeks's youth and "functional maturity."

¶15 Fleeks appeals.

II.

¶16 Fleeks argues that his trial counsel was ineffective in failing to request a jury instruction on revived self-defense. Because we agree, and conclude that his counsel's conduct requires reversal of his conviction, our analysis begins here.

A.

¶17 To establish ineffective assistance of counsel, a defendant must show that counsel performed deficiently and that the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This court reviews allegations of ineffective assistance of counsel de novo. State v. Wafford, 199 Wash. App. 32, 41, 397 P.3d 926 (2017).

¶18 An attorney acts deficiently if their conduct falls "below an objective standard of reasonableness." State v. Grier, 171 Wash.2d 17, 33, 246 P.3d 1260 (2011). The defendant must show that any errors made were "so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment." State v. Fortun-Cebada, 158 Wash. App. 158, 167, 241 P.3d 800 (2010). The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wash.2d 322, 335-36, 899 P.2d 1251 (1995). Competency of defense counsel is determined based on the entire record below. McFarland, 127 Wash.2d at 335, 899 P.2d 1251.

¶19 Fleeks argues that his trial counsel was ineffective by failing to request a jury instruction on revived self-defense. To show deficient conduct based on failure to request a jury instruction, the defendant must first establish that he would have been entitled to the instruction. State v. Cienfuegos, 144 Wash.2d 222, 227, 25 P.3d 1011 (2001).

¶20 A defendant is entitled to an instruction if it is "supported by substantial evidence in the record." State v. Griffith, 91 Wash.2d 572, 574, 589 P.2d 799 (1979). To determine whether there is sufficient evidence to support giving an instruction, a court views the evidence in the light most favorable to the party requesting the instruction, in this case, Fleeks. State v. Fernandez-Medina, 141 Wash.2d 448, 455-56, 6 P.3d 1150 (2000). To show prejudice, the defendant must prove that, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In re Pers. Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).

¶21 "Generally, a slayer may not claim self-defense to justify a killing when they were the aggressor or provoked the confrontation." State v. Hatt, 11 Wash. App. 2d 113, 135, 452 P.3d 577 (2019) (citing State v. Craig, 82 Wash.2d 777, 783, 514 P.2d 151 (1973) ). A court may give a "first aggressor" jury instruction where "there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense." State v. Riley, 137 Wash.2d 904, 909, 976 P.2d 624 (1999).⁴ Washington recognizes, however, that the right of self-defense is revived as to the aggressor if that person in good faith withdraws from the aggression in...