State Of Washington v. Dmarcus George, 46705-4

Background

In 2004 Dmarcus George shot and killed Isaiah Clark at a Tacoma gas station; George fled and was arrested four years later.
First trial (2009) resulted in convictions for lesser included manslaughter and felony murder; this court reversed because the trial court refused a self-defense instruction and ordered a new trial. See State v. George, 161 Wn. App. 86.
At the retrial (2014) George was charged with second-degree intentional murder (count I) and second-degree felony murder (count II), each with a firearm enhancement.
Trial included disputed testimony and several allegedly improper statements by witnesses (e.g., a witness called George a “monster,” and two spontaneous references implying prior shootings) and prosecutorial references to the prior trial despite a court order to call it a prior hearing.
Jury convicted George on both counts and found he was armed; the court entered judgment on count I and stated it dismissed count II without prejudice on double jeopardy grounds, then sentenced George within the standard range (175 months + 60-month firearm enhancement).
On appeal George argued (1) cumulative prejudicial errors and prosecutorial misconduct; (2) double jeopardy violation by referencing the vacated felony-murder verdict in the judgment; and (3) entitlement to resentencing to seek an exceptional downward sentence based on youth at the time of the offense.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (George)	Held
Whether cumulative trial errors and prosecutorial misconduct denied a fair trial	Court should affirm if errors were harmless individually and cumulatively	Multiple evidentiary irregularities and prosecutorial misconduct so pervasive they deprived George of a fair trial	Affirmed conviction; only three errors counted and collectively were not prejudicial enough to require reversal
Whether prosecutor’s references to the prior trial violated court order and warranted mistrial	References to prior testimony were permissible context for impeachment/argument	Prosecutor repeatedly violated court order to call the prior proceeding a hearing, prejudicing trial strategy	Court found references were improper (violation of order) but not shown to have caused reversible prejudice; considered in cumulative-error analysis
Whether entry of judgment and sentence referencing the vacated lesser verdict violated double jeopardy	Vacated lesser verdict should not be referenced in judgment or sentencing	Judgment improperly referred to guilty verdict on count II despite dismissal on double jeopardy grounds	Remanded to strike references to count II in the judgment and sentence to comply with Turner directive
Whether George can seek exceptional downward sentence on grounds of youth when he did not request it at sentencing	O’Dell allows courts to consider youth; but defendant must preserve issue at sentencing to appeal standard-range sentence	George argued youth should permit resentencing	Waived—because George did not request an exceptional downward sentence at sentencing, the standard-range sentence is not appealable

Key Cases Cited

Emery v. State, 174 Wn.2d 741 (2012) (prosecutorial-misconduct reversal requires showing of prejudice likely affecting verdict)
Thorgerson v. State, 172 Wn.2d 438 (2011) (wide latitude for closing argument; reasonable inferences allowed)
Turner v. State, 169 Wn.2d 448 (2010) (judgment and sentence must not reference vacated lesser conviction)
O’Dell v. State, 183 Wn.2d 680 (2015) (trial courts may consider youth as mitigating factor for exceptional downward sentence)
Trujillo v. State, 112 Wn. App. 390 (2002) (when jury convicts on alternative charges, enter judgment on greater offense only)
Cross (In re Personal Restraint of Cross), 180 Wn.2d 664 (2014) (cumulative error doctrine requires multiple errors whose combined prejudice denies a fair trial)
Hughes v. State, 166 Wn.2d 675 (2009) (double jeopardy review de novo)
Pierce v. State, 169 Wn. App. 533 (2012) (prosecutor cannot urge jury to decide based on evidence outside the record)
State v. George, 161 Wn. App. 86 (2011) (prior appellate decision reversing for failure to give self-defense instruction)