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
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."
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."
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.
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.
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
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.
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
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.
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).
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.
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
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."
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.
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.
PowerPoint slide show
raises a more serious concern with his challenge to part of
the PowerPoint presentation that accompanied the
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).
prosecutor began closing argument by summarizing the evidence
of intentional murder. Then she moved to the topic of
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