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State v. Salas

Court of Appeals of Washington, Division 1

January 8, 2018


          BECKER, J.

         The appellant, Encarnacion "EJ" Salas, was charged with first degree murder with a deadly weapon for stabbing his close friend Jesus "Jesse" Lopez in October 2014. Salas testified that he acted in self-defense. A jury convicted Salas of second degree murder. We reverse the conviction, finding prosecutorial misconduct in the use of PowerPoint slides and ineffective assistance of counsel for failure to suppress statements Salas made to medical providers.


         According to testimony at trial, Salas moved from Texas to Washington in 2013. He was 21 at the time. He shared a Lynnwood apartment with his aunts, Ruby Salas and Cristal Salas. Lopez lived with his mother in the same apartment complex and was Ruby's coworker. Lopez was about 10 years older than Salas. The two developed a friendship. Salas said they regularly visited each other's apartments to "drink, smoke marijuana, talk, watch TV shows, cartoons."

         After a while their relationship became, as Salas described it, "kind of homosexual." Their friends saw them as a couple. Salas testified that "it wasn't a true homosexual relationship. It was more trying to get to that level, to be comfortable, in order to get there." Salas described a time around August 2014 when Lopez made a sexual advance. "I tell him I'm uncomfortable with that, I'm not ready."

         On October 24, 2014, around 11:30 p.m., police were dispatched to the Lopez apartment. They found Lopez dead, lying on his back in the kitchen, blood on the walls and floors, and "blood in quite a few places around his body." An officer observed "a very significant injury to the right side of his neck." A forensic pathologist determined that Lopez died from knife injuries. He had 15 total knife wounds. Some were stab wounds, and others were referred to as "incised" wounds. There were significant injuries to his lungs, his liver, and his external jugular vein, all of which the examiner believed sufficient to cause death if not urgently treated.

         The trial took place over 10 days in October 2015. The State's theory was that Salas "brutally hacked up" Lopez and he did it "not because he was scared, but because he was conflicted about his sexuality." The defense theory was that Lopez attacked Salas and Salas killed him in self-defense.

         Antonia Lopez, the decedent's mother, testified that Salas and Lopez were both drinking that night in the apartment. Antonia came out of her bedroom when she heard a loud noise. She saw the two of them "struggling" near the door to a balcony. Lopez, who had blood on his arm, was inside the apartment and Salas was outside on the balcony. Antonia believed that Salas was trying to pull Lopez outside onto the balcony.

         Antonia said she pulled her son away from Salas and leaned him up against the kitchen counter. Salas ran to the front door. Antonia followed and tried to prevent Salas from leaving, but at that point, Lopez "basically fell and fainted" and said, "'Mom, help me, I'm dying.'" Antonia saw Salas take "something" from his backpack. Salas came back to where Lopez was lying on the kitchen floor, kneeled over him, and did "something on the neck." Antonia could not see if Salas was holding anything, but "he was really mad, just going at it, " "Like cutting him." She did not notice whether Lopez had injuries or blood on his face or neck before Salas started "doing something" to his neck. Antonia said she grabbed Salas by his ears "to get him out of there." Salas left the apartment by jumping down from the balcony. Antonia summoned aid, but within minutes, Lopez was dead where he lay on the floor.

         Salas testified that he came over to the Lopez apartment that evening with a backpack containing alcohol and a knife. Salas testified that he "always" carried a knife on him and had done so since living in Texas. He said he and Lopez were drinking and playing with his knife, twirling or spinning it. At one point, they went outside on the balcony to smoke marijuana. Salas said Lopez "made a pass" at him by attempting to grab his genital area. Salas started yelling, and Lopez struck him with what Salas soon realized was his knife. Salas said he pried the knife away from Lopez and Lopez tried to get it back. They ended up back inside the apartment, in a close and "constant" struggle. Salas said that he cut and stabbed Lopez to fend off his attack.

         Salas testified that he knocked Lopez to the ground and saw that there was blood coming from his neck. Salas said he knelt down and "applied pressure" to stop the bleeding. He denied making any cutting motion. He remembered Antonia pulling him off, at which point he left the apartment. He spent a night in the woods before returning to his apartment.

         The court instructed the jury on first and second degree murder. Over the State's objection that the evidence "clearly rises above manslaughter, " the court instructed the jury to consider the lesser included offenses of first and second degree manslaughter if unable to agree on murder. The court also provided a standard self-defense instruction (WPIC 16.02), an instruction defining "great personal injury" (WPIC 2.04.01), an instruction that actual danger is not necessary for a homicide to be justifiable (WPIC 16.07), and an instruction on the meaning of "necessary" force (WPIC 16.05).

         The jury returned a verdict finding Salas guilty of second degree murder. Salas had no prior convictions. With an offender score of zero, the standard range for the sentence was 123 to 220 months. With the deadly weapon enhancement, the presumptive sentence range was 147 to 244 months. The court sentenced Salas to 244 months. Salas appeals from the judgment and sentence.


         Salas contends he was denied a fair trial by several instances of prosecutorial misconduct in argument. To prevail, he must show that in the context of the record and all of the circumstances of trial, the prosecutor's conduct was both improper and prejudicial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). Prejudice means a substantial likelihood that the misconduct affected the jury verdict. Glasmann, 175 Wn.2d at 704. A defendant who does not object to the improper conduct at trial must demonstrate on appeal that the error was so flagrant and ill-intentioned that an instruction would not have cured the prejudice. Glasmann, 175 Wn.2d at 704.

         1. "Cop-out"

         In closing, the prosecutor argued that if there was any issue for the jury to consider, it was premeditation. She explained that she was not going to discuss the manslaughter instructions because the evidence "makes it clear that this is murder, not manslaughter." In rebuttal closing argument, she asserted that convicting Salas of manslaughter "would be a cop-out."

         When there is evidence that the homicide was neither premeditated nor intentional and the trial court has properly put the issue of manslaughter before the jury, it is improper to argue that manslaughter is a "'cop-out'" and inapplicable. People v. Howard, 232 Ill.App.3d 386, 390, 597 N.E.2d 703, 173 Ill.Dec. 729, appeal denied. 146 Ill.2d 639 (1992). Here, the jury could have reasonably concluded that Salas did not kill Lopez intentionally. The two were close friends, and they both were drinking before they began to fight. But Salas did not object to this remark, and it was not incurably prejudicial. Reversal is not warranted based on this comment alone.

         2. Stab wounds

         Salas contends the prosecutor misrepresented the testimony about the amount of blood and the number of lethal stab wounds. We disagree. The record reflects that the prosecutor argued reasonable inferences from the forensic evidence. And the trial court twice sustained defense objections.

         3. PowerPoint slide show

         Salas raises a more serious concern with his challenge to part of the PowerPoint presentation that accompanied the prosecutor's argument.

         Closing argument provides an opportunity for counsel to summarize and highlight relevant evidence and argue reasonable inferences from the evidence. Multimedia tools such as PowerPoint presentations offer an effective and engaging method of communicating such information to the jury. State v. Walker, 182 Wn.2d 463, 476-77, 341 P.3d 976, cert, denied. 135 S.Ct. 2844 (2015). But a prosecutor's freedom in using such tools is not without limits. Prosecutors have a "duty to 'subdue courtroom zeal, ' not to add to it, in order to ensure the defendant receives a fair trial." Walker, 182 Wn.2d at 477, quoting State v. Thoraerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011).

         The prosecutor began closing argument by summarizing the evidence of intentional murder. Then she moved to the topic of self-defense:

And Instruction No. 18 says that necessary means no reasonably effective alternative to the use of force appeared to exist. And two, the amount of force used was reasonable to effect the lawful purpose intended.
This is the only knife out on the balcony. Now, the defendant has it. The defendant could toss it over the edge, now, it's gone. We know that the defendant can take Jesse. He's a fighter, football player. There's no issue there. Jesse was a bandleader, saxophone player, he liked to exercise, but the defendant can take Jesse. You get rid of the knife, you get rid of the threat of any great bodily injury, any death. But instead, according to him, now, he has ...

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