State v. Fluker
| Decision Date | 04 September 2018 |
| Docket Number | No. 75060-7-I,75060-7-I |
| Citation | 425 P.3d 903 |
| Parties | The STATE of Washington, Respondent, v. Marque Deandre FLUKER, Appellant, Jerry Allen Fluker, Defendant. |
| Court | Washington Court of Appeals |
425 P.3d 903
The STATE of Washington, Respondent,
v.
Marque Deandre FLUKER, Appellant,
Jerry Allen Fluker, Defendant.
No. 75060-7-I
Court of Appeals of Washington, Division 1.
FILED: September 4, 2018
Kevin Andrew March, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842 for Appellant
Donna Lynn Wise, King County Prosecutor's Office, Prosecuting Attorney King County, King County Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2362 for Respondent
PUBLISHED OPINION
Schindler, J.
¶ 1 Mar'Que Deandre Fluker shot and killed LeMaun Lancaster. The State charged Fluker with intentional murder in the second degree while armed with a firearm. The jury rejected his claim of self-defense and convicted Fluker of the lesser included crime of manslaughter in the first degree while armed with a firearm. Fluker seeks reversal. Fluker contends (1) the court violated his right to present a defense by excluding evidence that he had a permit to carry the gun and (2) the court erred by refusing to instruct the jury on manslaughter in the second degree. Because the court did not abuse its discretion by excluding the evidence and ruling the evidence did not support instructing the jury on manslaughter in the second degree, we affirm.
FACTS
¶ 2 King County Sheriff Deputy Matthew Paul responded to reports of a shooting in the parking lot at 68th Avenue South and Renton Avenue South at approximately 7:41 p.m. on August 12, 2015. Deputy Paul saw a black man, later identified as LeMaun Lancaster, on the ground surrounded by people "providing first aid." Lancaster "had several gunshot wounds to his body." Lancaster had been shot 8 to 10 times in the chest, abdomen, back, legs, arm, and hand.
¶ 3 While Deputy Paul put pressure on the wounds, he asked Lancaster, "[D]o you know who shot you." In response, Lancaster "kept saying Mar'Que repeatedly."
¶ 4 While waiting for medics, Detective Aaron Thompson helped apply pressure to the wounds in the left upper chest area. Lancaster was having "difficulty breathing" and was "in and out of consciousness." Detective Thompson asked Lancaster "if he could tell me who shot him." Lancaster told Detective Thompson "Mar'Que Fluker" shot him.
¶ 5 Lancaster died in the ambulance on the way to Harborview Medical Center.
¶ 6 Deputy Paul interviewed witnesses. Detective Chris Johnson collected 9 mm bullet casings from the parking lot where Lancaster was shot. Detective Thien Do obtained surveillance videos from Ezell's Famous Chicken and a marijuana dispensary, GHL. The police later watched the surveillance videos.
¶ 7 The surveillance video from Ezell's Famous Chicken and GHL show what happened leading up to the shooting and the shooting.
¶ 8 Lancaster, Jalen Coleman-Roy, and Joseph "Tank" Davison are talking while standing together in front of Ezell's and GHL. Lancaster is wearing a white T-shirt and grey sweatpants; Coleman-Roy is wearing a black sweatshirt, gray sweatpants, and red shoes; and Davison is wearing a white T-shirt, dark shorts, white shoes, and a red hat. Mar'Que Deandre Fluker, his older brother Jerry Allen Fluker, and their nephew Jayvon "Bubba" Grayson drive into the parking lot near Ezell's in a silver Chevrolet Impala. Mar'Que is wearing a Seattle Seahawks jersey with the number 24; Jerry is wearing a Portland Trailblazers jersey, black pants, and a red hat; and Grayson is wearing a green shirt and a green and blue stocking cap.1 The two groups stand near the curb, talking. Lancaster tries to give a flyer to Grayson. Grayson pushes Lancaster's hand away and they gesture to each other.
¶ 9 Lancaster punches Grayson. Lancaster and Grayson then posture and throw punches for several minutes. After the fight moves into the parking lot, Coleman-Roy and Mar'Que intervene and separate Lancaster and Grayson. Coleman-Roy pushes Grayson toward the Impala. Mar'Que and Davison push Lancaster in the opposite direction.
¶ 10 Jerry then approaches Lancaster and pushes him in the chest. Lancaster punches Jerry in the face, knocking off his hat. Mar'Que has his hands at his waist. Davison is standing with his hands behind his back.
¶ 11 Mar'Que removes a gun from his pants and walks toward Lancaster. As Lancaster backs away, Mar'Que raises his left arm and points the gun at Lancaster with his right arm extended.
¶ 12 Mar'Que shoots Lancaster at least eight times. Lancaster doubles over, twists away from Mar'Que, and falls to the ground. Davison (Tank) backs away, turns, and runs away in the opposite direction.
¶ 13 As Lancaster falls to the ground, Jerry picks his hat up off the ground and Mar'Que walks away. Jerry walks to the Impala and gets in the driver seat. Mar'Que puts the gun back in his pants and paces back and forth.
¶ 14 Mar'Que and Grayson get in the car. Coleman-Roy runs to help Lancaster. As Jerry backs out of the parking space, Mar'Que jumps out of the car.
¶ 15 Mar'Que walks toward Lancaster but then turns back, talks to someone in the Impala, and then gets in the back seat of the car. Jerry drives away.
¶ 16 The State charged Mar'Que Fluker with intentional murder in the second degree while armed with a firearm and charged Jerry Fluker with felony rendering criminal assistance in the first degree. Jerry pleaded not guilty. Mar'Que asserted self-defense and defense of others.
¶ 17 The State called over 20 witnesses to testify during the two-week jury trial. The court admitted into evidence a number of exhibits, including an exhibit with the surveillance video from Ezell's and GHL and 872 still photographs of the events leading up to the shooting and the shooting, exhibit 21.
¶ 18 Emergency medical technician Steven Anderson testified he "noticed a group of gentlemen across the parking lot hanging out." Anderson was "about 50 yards" away and "couldn't tell if they were arguing or if they were fighting. It appeared to me that it was a group of friends kind of throwing fake punches at each other." Anderson heard the voices "get louder" and "one person, you know, hit one person, hit the other person, and then vice versa." Anderson testified that the group of men "kind of converged on each other to try to separate the two that were fighting, and that's when one of them pulled out a gun." Anderson testified, "Someone started shooting." Anderson said the group "somewhat dispersed, it backed up, and then somebody had said, you know, why would you pull out a gun." After the shooter "got into the car" and drove away, Anderson went "over to where the kid that was shot was on the ground." There were "multiple bullet wounds in him." While waiting for the medics to arrive, Anderson applied pressure to some of the wounds.
¶ 19 Coleman-Roy testified he was friends with Lancaster and Mar'Que since high school and considered Grayson "like my little brother."
¶ 20 The State played the exhibit with the surveillance video during the testimony of Coleman-Roy, and he described what happened. Coleman-Roy testified that Lancaster was passing out flyers for a "rapper coming to town" and tried to give a flyer to Grayson, but he pushed it away. Grayson started "trash-talking" and said the "rapper is weak." At first, Lancaster and Grayson "were just trash-talking to each other, just joking around with each other how friends do." But then "they got face to face, and that's when it escalated and the fight broke out." After Grayson "kept antagonizing" Lancaster,
Lancaster punched Grayson, and Grayson "defended himself."
¶ 21 Coleman-Roy said Lancaster and Grayson fought for several minutes before he and Mar'Que intervened. Coleman-Roy testified that "[o]nce they started fighting, our first instinct was to break it up." But no one immediately intervened. After "[t]he situation was only escalating more and more between" Grayson and Lancaster, "we started to break it up." Coleman-Roy grabbed Grayson and Mar'Que grabbed Lancaster. Coleman-Roy said Jerry "was just kind of standing off to the side" and "paying no attention" to Lancaster and Grayson.
¶ 22 Coleman-Roy pushed Grayson toward Jerry's silver Impala that was parked nearby. As Grayson "started to get in the car," he "started pointing over [Coleman-Roy's] shoulder." As Coleman-Roy turned around to see what Grayson was pointing at, he heard gunshots and saw Lancaster fall "to the ground."
¶ 23 Coleman-Roy said Davison "was just standing there" and never intervened. "He was scared the whole time ... to get involved." Coleman-Roy did not hear "anybody say anything about a gun" before hearing the gunshots. Coleman-Roy did not see anyone with a gun except Mar'Que. Coleman-Roy stayed with Lancaster and called 911.
¶ 24 King County medical examiner Dr. Desiree Marshall testified...
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