Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  40692-6-II

                             Respondent,

       v.

CHARLES WALTER NETTLEBECK,                                 UNPUBLISHED OPINION

                             Appellant.

       Penoyar, C.J.  --  Charles Nettlebeck killed his wife and adult stepdaughter with an ax.  He 

asserted a diminished capacity defense, arguing that he lacked the capacity to form premeditated 

intent.1 A jury rejected this defense and convicted him of two counts of aggravated first degree 

murder.  He appeals, arguing that the trial court erred by (1) permitting a Western State Hospital 

psychologist to testify that Nettlebeck's statement to police shortly after the murders that he did 

not "know the difference between right and wrong" was similar to a statement in a March 20, 

1984 letter from Western State Hospital to Pierce County Superior Court stating that Nettlebeck 

"was not able to distinguish right from wrong" when he allegedly committed an assault earlier that 

year, and (2) failing to give his proposed jury instruction defining the term "deliberation."  

Additionally, he contends that (3) the prosecutor committed misconduct in closing argument by 

asking whether he found "joy" and "pleasure" in knowing that his stepdaughter was suffering and 

dying, and (4) insufficient evidence supported the portion of the jury's special verdicts finding that 

"the murders were part of a common scheme or plan." We affirm.

1 Nettlebeck's theory of the case was that he committed second degree murder, not first degree 
murder.  Thus, he argued only that his diminished capacity prevented him from forming the mens 
rea for first degree murder; he did not argue that it prevented him from forming the mens rea for 
second degree murder.  See RCW 9A.32.030, .050. 

40692-6-II

                                            FACTS

       In early 2009, after more than three years of marriage, Barbara Nettlebeck decided to 

divorce Nettlebeck.  She and her adult daughter Bretta Hawkins consulted a divorce attorney.  On 

February 2, 2009, Barbara2 served Nettlebeck with divorce papers and asked him to leave their 

Orting home.  He moved out and checked into a Puyallup hotel two days later.

       Hawkins assisted her mother with the divorce.  She arranged to serve the paperwork on 

Nettlebeck and she was present at two divorce hearings.

       The divorce proceedings upset Nettlebeck.  He told a counselor at Good Samaritan 

Community Health that he needed "'help for thoughts and feelings'" because his wife had 

separated from him, had withdrawn money from their account, and had left him "'homeless'" and 

"'penniless.'"  Report of Proceedings (RP) at 733-34.  He told a hotel employee that he and his 

wife were having problems because of Hawkins, his stepdaughter, who had never really liked him.  

       On March 13, 2009, Barbara and Nettlebeck held a garage sale at the Orting house.  

Hawkins arrived at some point.  That evening, a dispute arose in the living room when Barbara 

and Nettlebeck were splitting the sale proceeds.  Nettlebeck picked up an ax that was about six 

feet away and hit Barbara twice in the head, fracturing her skull.  Then, as she lay on the ground, 

he brought the ax down on her neck with considerable force, severing her spinal cord and killing 

her.  Nettlebeck walked to the back porch, ax in hand, and struck Hawkins in the head once with 

the ax handle and once with the blunt end of the ax.  She suffered a skull fracture and died the 

next evening.  

2 To avoid confusion, we refer to Barbara Nettlebeck by her first name and to Charles Nettlebeck 
by his surname.  We intend no disrespect.
                                               2 

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       After the assaults, Nettlebeck wandered around the Orting property for about two hours 

and spray-painted messages on the exterior walls of the house and various outbuildings.3      At 

10:22 p.m., he called 911 and told the operator that he had struck a woman with an ax blade and 

another woman with the blunt side of an ax.  About 10 minutes later, several police officers 

arrived and arrested him.  

       The State charged Nettlebeck with two counts of aggravated first degree murder.4      For 

both counts, the State alleged the presence of the aggravating circumstance that "[t]here was 

more than one person murdered and the murders were part of a common scheme or plan or the 

result of a single act of the person."  Clerk's Papers (CP) at 49, 50.  

I.     Pre-Trial Matters

       At a pretrial hearing, Nettlebeck stated that he planned to assert a diminished capacity

defense.5 The State informed the trial court that, in 1984, Western State Hospital doctors had 

evaluated Nettlebeck's sanity in connection with a pending charge for second degree assault.  On 

March 20, 1984, the doctors wrote a forensic letter to the trial court, which stated in relevant 

3 In closing argument, the prosecutor recounted the content of these messages: 

   ?   "Liveing [sic] in motel.  Money running out.  Nowhere to live."
   ?   "Sorry to my friends.  Could not get help."
   ?   "Could not frind [sic] help.  Nowhere to go."
   ?   "Thank you for two years.  I have knowwhere [sic] to live [now]."
   ?   "I need help and could not find it.  I loved my wife.  Why was she so mean to me?  For 
       better or worst [sic], I wanted to grow old here."

RP at 1134-35.

4 RCW 9A.32.030(1)(a); RCW 10.95.020(10).

5 Nettlebeck did not assert an insanity defense.  The experts at trial agreed that he was not legally 
insane at the time of the murders.  
                                               3 

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part:

       Our diagnostic impression is acute paranoid disorder, and the opinion is that he 
       was not able to distinguish right from wrong, nor capable of appreciating the 
       nature and quality of his conduct.  If he is acquitted, it is our recommendation he 
       be placed on release.

RP at 695 (emphasis added).  The trial court subsequently acquitted Nettlebeck of the assault 

charge on the grounds of insanity.  

II.    Trial Testimony About Nettlebeck's Post-Murder Admissions 

       At trial, several police officers testified about Nettlebeck's comments to them6 on the 

night of the murders.  Pierce County Deputy Sheriff John Heacock was one of the officers who 

arrived at the Orting house about 10 minutes after the 911 call.  Heacock testified that, as he led 

Nettlebeck to the patrol car, Nettlebeck said, "'I hurt my wife with an ax.  I think she is dead.'"  

RP at 263.  After placing Nettlebeck in the patrol car, Heacock asked, "What is going on here?"  

RP at 263.  Nettlebeck responded that he and his wife Barbara were going through a divorce, that 

he had been staying at a motel, and that he was at the property for a garage sale.  According to 

Nettlebeck, he and Barbara had been arguing about a court date when he "lost it" and assaulted 

her.  RP at 264.  He told Heacock that he had also assaulted Hawkins, but he did not explain why.  

Heacock asked what had triggered the assaults.  Nettlebeck stated that he "'didn't blackout'" but 

said that he could not explain why he committed the assaults.  RP at 266.  Nettlebeck told 

Heacock that, after the assaults, he walked around the property for about two hours, spray-

painted the buildings, and planned to commit suicide.  

6 The trial court concluded after a CrR 3.5 hearing that the officers' testimony was admissible 
during the State's case because Nettlebeck had knowingly, voluntarily, and intelligent waived his 
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), rights.  
                                               4 

40692-6-II

       During this interview, Nettlebeck repeatedly told Heacock that he needed help.  These 

statements were not responsive to Heacock's questions.  Nettlebeck told Heacock that he had 

been in Western State Hospital in 1984; that he was afraid; that he had experienced "a break in 

reality;" and that Good Samaritan Hospital staff had told him approximately three weeks earlier 

that he needed medication but would be unable to provide it for three months.  RP at 267.  

       At 11:33  p.m., Pierce County Detectives Denny Wood and Ben Benson interviewed 

Nettlebeck for about 10 minutes while he was still seated in the back of the patrol vehicle.  One of 

Nettlebeck's first statements was, "It's been a bad month." RP at 549.  Nettlebeck explained that 

his wife Barbara had filed for divorce in February; that he had been having a tough time dealing 

with the divorce; that he had been living in a hotel and could not find a place to live, which was 

stressful because he was running out of money; and that he was at the property for a garage sale 

to raise money.  He explained that he had been under a lot of stress and anxiety and that he had 

been seeking help but nobody would help him.  

       He explained that he and Barbara had been talking about a court date related to the 

divorce.  He had been preparing to leave and she had been getting "a little short" with him.  RP at 

572.  As they were splitting the sale proceeds, he "lost it" and struck her with an ax in the head.  

RP at 37.  He stated, "The wife and I started talking.  I can't tell you what started it.  I hit her 

with an ax." RP at 551.  Then he took the ax outside to the back porch and hit his stepdaughter 

two or three times.  He was not sure if she was alive.  Afterwards, he painted some things on the 

house and walked around the property trying to figure out what to do.  He also told the 

detectives, "'I didn't know the difference between right and wrong.'" RP at 549.  This statement 

was not in response to any of the detectives' questions.  

                                               5 

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       Dr. Barry Ward, a psychologist at Western State Hospital and a member of the team that 

performed a court-ordered evaluation of Nettlebeck, also testified7 about the statements that 

Nettlebeck made about the murders during two forensic interviews in January 2010.  Nettlebeck 

told Dr. Ward that, on the night of March 13, 2009, he and Barbara were in the house talking 

about the divorce "and it got to be too much for me to take, and I just went insane, went crazy."  

RP at 904.  The following exchange occurred:

       [Dr. Ward:]    How do you go from talking to having the ax?
              . . . .
       [Nettlebeck:]  The ax was six feet away, approximately.
              . . . . 
       [Dr. Ward:]    Walk me through it.
              . . . . 
       [Nettlebeck:]  I grabbed the ax and swung the ax.
              . . . . 
       [Dr. Ward:]    What were your thoughts and emotions when you saw the ax?
              . . . . 
       [Nettlebeck:]  Real light-headed.  There were so many changes.  Now everything 
                      totally changed.  I just lost it, just snapped.

RP at 906 (internal quotation marks omitted).  Nettlebeck followed up, saying that he was 

stressed because he did not have money or a place to stay.  He then told Dr. Ward, "The stress I 

was getting from Barb and her attorney was overwhelming me."      RP at 906.  At another point, 

Dr. Ward asked Nettlebeck if he felt remorse after hitting Barbara with the ax.  He responded, 

"After it happened, I felt real bad about that, and I wished I could have controlled myself, and that 

wouldn't have happened." RP at 910.

III.   Expert Testimony About Diminished Capacity

       Dr. Ward testified  that Nettlebeck suffered from "an alcohol-related disorder" and  "a 

7 Nettlebeck called Dr. Ward as a witness.
                                               6 

40692-6-II

personality disorder not otherwise specified with dependent, borderline and paranoid features."

RP at 850.  He testified that, at the time of the murders, Nettlebeck was experiencing moderate to 

severe psychological stressors because he was "out of his home and facing divorce."  RP at 856.  

But he testified that the clinical data did not support the conclusion that Nettlebeck lacked the 

ability to premeditate the murders.  He testified that "even people with severe mental illness are 

capable of forming intents and acting on those intents most of the time."  RP at 858.  He also 

testified that he relied on the following facts to infer that Nettlebeck had the capacity to 

premeditate: he armed himself with the ax, which was approximately six feet away; he swung the 

ax; he took the ax outside and killed Hawkins with several blows to the head; he discarded the ax; 

he spray painted messages about his state of mind on an outbuilding; and he contacted police to 

report the incident.  

       Dr. Craig Beaver, a licensed psychologist, testified for the defense.  He diagnosed 

Nettlebeck with "schizophrenia, paranoid type" and  "mild situational depression." RP at 963, 

1010.  He testified that Nettlebeck also "episodically had alcohol abuse problems" and was 

"borderline mentally deficient" with an intelligence quotient (IQ) of 76.  RP at 957, 965.  Dr. 

Beaver testified that Nettlebeck's "limited intellectual skills and his psychiatric difficulties . . . 

collide[d] with each other" when he became stressed.  RP at 967.  Dr. Beaver testified that these 

issues would significantly impact Nettlebeck's ability to "rationally . . . weigh different options."  

RP at 978.  Dr. Beaver concluded that, at the time of the murders, Nettlebeck experienced 

diminished capacity that affected his ability to form premeditated intent.  Although Nettlebeck had 

the capacity to act intentionally, he did not have the capacity to deliberate, weigh his options, or 

reflect on the goals of his actions.  

                                               7 

40692-6-II

IV.    Dr. Ward's Testimony About March 20, 1984 Forensic Court Letter

       During its case in chief, the State moved to admit the March 20, 1984 forensic court letter

from the prior assault case into evidence.  The State argued that, by telling Wood and Benson that 

he "didn't know the difference between right and wrong" and by telling Heacock that he had 

experienced a "break in reality," Nettlebeck had "parroted back the language from the legal 

standard for not guilty by insanity . . . as soon as police showed up at the scene of this double 

homicide."  RP at 266-67, 549, 697.  The State argued, therefore, that the letter was relevant.  

Nettlebeck objected to the admission of the letter in its entirety because some of the information 

in the letter was not relevant.  The trial court denied the State's motion to admit any part of the 

letter in its case-in-chief.  

       On direct examination, Nettlebeck asked Dr. Ward several questions about Nettlebeck's

commitment to Western State Hospital in 1984 and the diagnoses that he received while there.  

Dr. Ward testified that the hospital staff had  diagnosed Nettlebeck with schizophrenia and a 

personality disorder.  

       On cross examination, Dr. Ward testified that he had reviewed the March 20, 1984 

forensic court letter as part of his team's court-ordered forensic evaluation of Nettlebeck.  The 

State then asked several questions about the letter's contents:

       Q:     Is it fair to say that in that letter, the evaluation of the doctors who signed 
              it, was that the defendant was competent to stand trial?
       A:     That was the opinion expressed in the letter, yes.
       Q:     And does the letter express the opinion that the defendant, at the time of 
              the alleged crime, was unable to distinguish right from wrong?
       A:     That opinion is expressed in the letter, also, yes.
       Q:     Does the letter express the opinion that the defendant, at the time of the 
              alleged crime, had a psychotic break with reality?
       A:     Yes, it does.
              . . . .
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40692-6-II

       Q:     The material that you reviewed prior to your interview with the defendant, 
              did they include statements that he had made to Deputy Heacock of the 
              Pierce County Sheriff's Department?
       A:     I don't recall Deputy Heacock's name specifically, but they did include a 
              transcribed interview.
       Q:     Is it your recollection in preparing for the interviews with the defendant 
              and your evaluation in . . . December '09 and January '10, that he told 
              deputies at the scene that he had a break from reality?
       A:     My recall was that that was in quotes, yes.
       Q:     And that he told deputies and detectives maybe more than once that he 
              didn't know the difference between right and wrong?
       A:     I recall him reading that specifically, yes.
       Q:     Did that strike you as similar to the language you've described in the 
              letter that's before you?
              [DEFENSE]:             Objection, Your Honor.  Your Honor, can we have 
                                     a sidebar, please?
              THE COURT:             Okay.
                                     (Sidebar conference held.)
              THE COURT:             Okay.  [State], you may proceed.
       Q:     . . . I am trying to remember the question, . . . did it strike you that the 
              statements that you recall reading, given to the police or the deputy 
              sheriffs and detectives were strikingly similar to the -- 
              [DEFENSE]:             Objection, Your Honor.  Calls for speculation and 
                                     relevance.
              THE COURT:             Got to let her finish her question first, and I think I 
                                     understand the question, and I will overrule your 
                                     objection.  Go ahead.  Do you want her to repeat?
              [STATE]:               If I could.
              . . . .
       Q:     . . . Does that language strike you as similar to the language that's in the 
              letter, in the document before you?
       A:     Yes, it does.

RP at 875, 878-79 (emphases added).

V.     Jury Instructions

       At the instruction conference, the parties agreed that the trial court should give the pattern 

jury instruction defining "premeditation." That instruction reads:

              Premeditated means thought over beforehand.  When a person, after any 
       deliberation, forms an intent to take human life, the killing may follow immediately 
       after the formation of the settled purpose and it will still be premeditated.  
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40692-6-II

       Premeditation must involve more than a moment in point of time.  The law 
       requires some time, however long or short, in which a design to kill is deliberately 
       formed.

CP at 29; 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 26.01.01, at 

360 (3d ed. 2008) (WPIC).  

       Additionally, Nettlebeck asked the trial court to give an instruction defining "deliberation"

in order to "assist the   jury in understanding how significant the difference is between 

premeditation and intent." RP at 1091, 1101.  Specifically, he asked the trial court to give the 

following instruction, which he took verbatim from State v. Rutten, 13 Wash. 203, 212, 43 P. 30 

(1895): "[D]eliberation means to weigh in the mind, to consider the reasons for and against, and 

consider maturely, to reflect upon."     The trial court declined to give the instruction and 

Nettlebeck took exception.  

       The trial court instructed the jury on the lesser included offense of second degree murder.  

The trial court also gave a diminished capacity instruction that was consistent with Nettlebeck's 

theory of the case: "Evidence of mental illness or disorder may be taken into consideration in 

determining whether the defendant had the capacity to form premeditated intent." CP at 30.

VI.    Closing Argument and Verdict

       In closing argument, the parties focused on whether Nettlebeck had the capacity to 

premeditate the murders.  The State ended its closing argument as follows:

              [THE STATE]:  Right after he killed Barbara, he felt remorse and he 
       wished he could have controlled himself.  This is what he said to Dr. Ward.  How 
       did he feel right after he killed Barbara, and this was his answer.  But you know 
       what, he walked over and killed Bretta anyway.  That's why Dr. Beaver's 
       testimony is unreasonable.
              . . . . 
              Barbara married late in life, and after she married, she and the defendant 
       got a farm. . . . But not too soon after that marriage, she realized it had been a 
                                               10 

40692-6-II

       financial mistake; it had been an emotional mistake, and ultimately, it became a 
       fatal mistake, not only for herself, but for her daughter, Bretta, the love of her life, 
       the one she grew up with, the one who stood by her and supported her and helped 
       her and guided her as her marriage fell apart.
              He wasn't Bretta's mistake.  She didn't choose him.  Did he have to kill 
       her, too[?]  Did it -- did he find pleasure knowing that she was laying there on the 
       ground alive and suffering and dying?  Did he find joy when he -- 

              [DEFENSE]:  Your Honor, I object.  We are allowing latitude, but this
       continuation is improper.

              THE COURT:       This is closing argument.  Overruled.

              [THE STATE]:  Did he find joy when he knew that she was dying and he 
       could have called for help, picked up that phone?  One phone call would have 
       brought them there.  And as minutes turned to hours and her body was dying, what 
       was he thinking?  He is guilty of everything that  he did, no excuses.  Guilty, 
       Aggravated Murder in the First Degree, against the woman who married him, 
       Barbara Nettlebeck; guilty, Murder in the First Degree, Aggravated Murder in the 
       First Degree . . . for Bretta Hawkins, stepdaughter in name only.  Thank you.

RP at 1138-40.

       In closing argument, Nettlebeck's counsel stated that his client had committed second 

degree murder.  He explained to the jury that premeditation "means to think . . . to reflect . . . to 

weigh your options."   RP at 1173.  He asserted that Nettlebeck had experienced stressors that 

caused a break from reality, which in turn prevented him from "forming the idea, weighing the 

options, deliberating." RP at 1177.   

       The jury convicted Nettlebeck as charged.  The jury entered special verdicts finding the 

aggravating circumstance on both counts.  The trial court sentenced him to life in prison without 

the possibility of parole.  He appeals. 

                                          ANALYSIS

I.     Dr. Ward's testimony About Similarity of Statements

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40692-6-II

       Nettlebeck first argues that the trial court's admission of Dr. Ward's "irrelevant opinion 

testimony" denied him a fair trial.  Appellant's Br. at 11.  Specifically, he contends that the trial 

court should not have permitted Dr. Ward to testify that Nettlebeck's statement to Wood and 

Benson that he "didn't know the difference between right and wrong" when he killed his wife and 

stepdaughter was "similar" to the conclusion in the March 20, 1984 forensic court letter that 

Nettlebeck "was not able to distinguish right from wrong" at the time of the alleged 1984 assault. 

RP at 549, 693.  We conclude that the erroneous admission of this testimony was harmless.  

       A.     Standard of Review

       We review the trial court's decision to admit evidence by determining whether the trial 

court's  "'exercise of its discretion [was] manifestly unreasonable or based upon untenable 

grounds or reasons.'" State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008) (quoting State 

v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).  Evidence that is not relevant is not 

admissible.  ER 402.  Relevant evidence is "evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence."  ER 401.  The improper admission of evidence 

to support a criminal conviction may be harmless error.  State v. Bashaw, 169 Wn.2d 133, 143, 

234 P.3d 195 (2010).  An evidentiary error is not harmless if within reasonable probabilities, had 

the error not occurred, the outcome of the trial would have been materially affected.  Bashaw, 

169 Wn.2d at 143.

       B.     The Error Was Harmless

       Here, the similarity between the two statements was relevant.  The key fact of 

consequence here was whether Nettlebeck had the capacity to premeditate the murders.  The fact 

                                               12 

40692-6-II

that he characterized his mental state at the time of the murders to investigating police officers in 

a nearly identical fashion as the Western State Hospital doctors had described his mental state in 

the March 20, 1984 letter -- a letter that led to his acquittal of an earlier crime -- had some 

tendency to suggest that he was parroting language that had resulted in a previous acquittal rather 

than being truthful with the officers about his mental state at the time of the murders.  And 

although the State did not present direct evidence that he saw the March 20, 1984 letter, it is 

reasonable to infer that he was aware of the letter's "right from wrong" language because this 

legal standard was the basis of his acquittal.  Accordingly, the similarity between the two 

statements had some tendency to undermine his diminished capacity defense.

       But although the statements' similarity was relevant to the issues before the jury, Dr. 

Ward's opinion on the degree of similarity was not.  In other words, his thoughts on this issue did 

not tend to prove anything of substance in this case.  The erroneous admission of Dr. Ward's 

testimony, however, was entirely harmless.  The two statements were before the jury and the 

statements' similarity, or lack thereof, was as apparent to the jury as to any other observer.  The 

trial's outcome was therefore not affected by this testimony.8  

II.    Trial Court's Rejection of Proposed "Deliberation" Instruction

       Nettlebeck next argues that the trial court violated his right to present a complete defense 

8 In addition to challenging the relevance of Dr. Ward's testimony, Nettlebeck maintains that the 
testimony did not meet the criteria for admission of expert opinion under ER 702 because the 
State did not present evidence that Dr. Ward had "specialized training in comparing statements"
and "the jury . . . was capable of deciding, without expert assistance, whether the language was 
similar." Appellant's Br. at 15.  Because Nettlebeck did not object to Dr. Ward's testimony on 
ER 702 grounds, he did not preserve this issue for appeal.  See RP at 879; State v. Guloy, 104 
Wn.2d 412, 422, 705 P.2d 1182 (1985) ("A party may only assign error in the appellate court on 
the specidic ground of the evidentiary objection made at trial.").
                                               13 

40692-6-II

when it refused to give his proposed jury instruction defining "deliberation" as "[t]o weigh in the 

mind, to consider the reasons for and against and consider maturely[,] to reflect upon."  RP at 

1101.  He concedes that WPIC 26.01.01 -- the pattern instruction defining "premeditation" that 

the trial court gave here -- accurately states the law with regard to premeditation.  But he 

contends that because the trial court did not define "deliberation," a term that appears in WPIC 

26.01.01, the jury did not understand that "premeditation requires a weighing of the reasons for 

and against a course of conduct." Appellant's Br. at 20.  This argument fails.  

       A.     Standard of Review

       A trial court's refusal to send a proposed instruction to a jury is a discretionary decision 

that we review for abuse of discretion.  State v. Buzzell, 148 Wn. App. 592, 602, 200 P.3d 287, 

review denied, 166 Wn.2d 1036 (2009).  Jury instructions are adequate if they allow a party to 

argue its theory of the case and do not mislead the jury or misstate the law.  State v. Stevens, 158 

Wn.2d 304, 308, 143 P.3d 817 (2006).  It is not error to refuse to give a specific instruction when 

a more general instruction adequately explains the law and allows each party to argue its theory of 

the case.  State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).  Although a trial court 

must define "technical" words in jury instructions, the trial court has discretion to define words 

"that are of ordinary understanding or self-explanatory."  State v. Brown, 132 Wn.2d 529, 611-

12, 940 P.2d 546 (1997).  A word is  "technical" if its meaning differs from common usage.  

Brown, 132 Wn.2d at 611.  

       B.     "Deliberation" is a Word of Ordinary Understanding

       Nettlebeck's proposed "deliberation" instruction is nearly identical to the dictionary 

definition of "deliberation."  Compare RP at 1101 ("deliberation" means "[t]o weigh in the mind, 

                                               14 

40692-6-II

to consider the reasons for and against and consider maturely to reflect upon") with Webster's 

Third New International Dictionary 596 (2002) ("deliberation" means "the act of weighing and 

examining the reasons for and against a choice or measure: careful consideration: mature 

reflection").  Accordingly, because he asked the trial court to define a term of "ordinary 

understanding" rather than a technical term, the trial court had discretion as to whether to give the 

instruction.  Brown, 132 Wn.2d at 611-12.  Here, the trial court properly exercised that discretion 

because, as our Supreme Court has previously held, WPIC 26.01.01 "adequately state[s] the rule 

regarding premeditation."  State v. Benn, 120 Wn.2d 631, 657-58, 845 P.2d 689 (1993) (holding 

that the trial court did not err when it gave WPIC 26.01.01 and rejected defendant's proposed 

instructions9 on premeditation); accord State v. Clark, 143 Wn.2d 731, 770-71, 24 P.3d 1006 

(2001) (stating that WPIC 26.01.01 was not misleading, correctly stated the law, and provided 

"ample room" for the defendant to argue that he did not premeditate the murder)10; In re Pers. 

9 In Benn, the defendant's proposed instructions on premeditation read as follows:

              Premeditation must involve more than a moment in point of time. 
       Premeditated means thought over beforehand.  It is the deliberate formation of and 
       reflection upon the intent to take a human life and involves the mental process of 
       thinking beforehand, deliberation, reflection, weighing or reasoning for a period of 
       time, however short.

              . . . . 

              The mere passage of time for a killing to occur shows only an opportunity 
       to deliberate and by itself is insufficient to sustain the premeditation element absent 
       evidence that the defendant did in fact deliberate.

120 Wn.2d at 657-58 n.3

10 The Clark court held that the trial court did not err when it rejected the defendant's proposed 
instruction on premeditation, which combined WPIC 26.01.01 with language stating that 
premeditation  "involves the mental process of thinking beforehand, deliberation, reflection, 
weighing or reasoning for a period of time, however short." 143 Wn.2d at 770.
                                               15 

40692-6-II

Restraint of Lord, 123 Wn.2d 296, 317, 868 P.2d 835 (1994) (stating that appellant's challenge 

to WPIC 26.01.01 was "patently frivolous" because the court had previously held that instruction 

to be adequate in Benn and Rice); State v. Rice, 110 Wn.2d 577, 604, 757 P.2d 889 (1988) 

(holding that the trial court did not err and did not violate the defendant's constitutional rights 

when it gave WPIC 26.01.01 instead of the defendant's proposed instruction11 differentiating 

"premeditated" from "intent").

       By giving WPIC 26.01.01, the trial court accurately stated the law and gave Nettlebeck 

"ample room" to argue his theory of the case -- namely, that he killed his wife and stepdaughter 

without premeditation.  See Clark, 143 Wn.2d at 771.  Nettlebeck explained to the jury that 

premeditation "means to think . . . to reflect . . . to weigh your options." RP at 1173.  And he 

tried to persuade them, based primarily on the experts' testimony, that he experienced stressors 

that caused a break from reality, which in turn prevented him from "forming the idea, weighing 

11 In Rice, the defendant's proposed instructions read as follows:

              The terms "intent" and  "premeditation" are not synonymous. They are 
       separate and distinct elements of the crime of murder in the first degree.

              "Intent" involves the mental state of acting with the objective or purpose to 
       accomplish a result which constitutes a crime.

              On the other hand, the term "premeditate" encompasses the mental process 
       of thinking before hand, deliberation, reflection, weighing or reasoning for a period 
       of time, however short. Thus, the objective or purpose to take human life 
       (sufficient to support a charge of second degree murder) must have been formed 
       after some period of deliberation, reflection or weighing in the mind for the act to 
       constitute first degree murder.

110 Wn.2d at 603.
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the options, deliberating." RP at 1117.  The jury, however, rejected this theory. In short, the trial 

court properly exercised its discretion when it denied the proposed instruction.12  

III.   Prosecutorial misconduct

       Nettlebeck further argues that the prosecutor committed misconduct in closing argument 

when she stated the following:

       [D]id he find pleasure in knowing that she was laying there on the ground alive and 
       suffering and dying ...  . . Did he find joy when he . . . knew that she was dying and 
       he could have called for help, picked up that phone?  One phone call would have 
       brought them there.  And as minutes turned to hours and her body was dying, what 
       was he thinking?  

Appellant's Br. at 22 (citing RP at 1139-40).  He asserts that this argument constituted 

misconduct because it "deliberately aroused the jury's emotions by presenting a highly 

inflammatory portrait of what [the prosecutor] believed went through Nettlebeck's mind after he 

struck Hawkins."   Appellant's Br. at 22.  This argument fails because Nettlebeck cannot 

demonstrate prejudice.

12 As an aside, we do not think that the jury's verdict would have differed had the trial court 
given Nettlebeck's proposed deliberation instruction.  Premeditation exists after an individual 
forms an intent to take human life "after any deliberation." WPIC 26.01.01 (emphasis added).  
Here, Nettlebeck presented three definitions of what it means to deliberate: (1) to weigh in the 
mind, (2) to consider the reasons for and against and consider maturely, and (3) to reflect upon.  
Assuming for the sake of argument that these definitions correctly define "deliberate," the use of 
the term  "any" in the pattern instruction suggests that the State proves that an individual 
premeditated a crime by proving that the individual deliberated according to any of these 
definitions.  In the prosecutorial misconduct section below, we describe the compelling evidence 
supporting the conclusion that Nettlebeck premeditated the murderous acts.  In our view, this 
same evidence supports the conclusion that Nettlebeck weighed these acts in his mind before 
committing them.  Accordingly, the jury would likely have convicted him even had it concluded 
that he did not (1) consider the reasons for and against his acts and (2) reflect on his acts. 
                                               17 

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       A.     Standard of Review

       In closing argument, the prosecutor has wide latitude to argue reasonable inferences from 

the evidence.  State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011).  We review a 

prosecutor's comments during closing argument in "'the context of the prosecutor's entire 

argument, the issues in the case, the evidence discussed in the argument, and the jury 

instructions.'"   Thorgerson,  172 Wn.2d at 462 (Chambers, J., dissenting) (quoting  State v. 

Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)).

       A defendant claiming prosecutorial misconduct on appeal must demonstrate that the 

prosecutor's conduct at trial was both improper and prejudicial.  State v. Fisher, 165 Wn.2d 727, 

747, 202 P.3d 937 (2009).  If the prosecutor's conduct was improper, and the defendant objected, 

we examine whether the improper conduct had a "'substantial likelihood the misconduct affected 

the jury's verdict.'"  State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006) (quoting State 

v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997)); State v. Anderson, 153 Wn. App. 

417, 427, 220 P.3d 1273 (2009), review denied, 170 Wn.2d 1002 (2010).  

       B.     Any Improper Argument Did Not Prejudice Nettlebeck

       As an initial matter,  the full context of the prosecutor's argument reveals that the 

prosecutor made the challenged comments while properly attempting to undermine Nettlebeck's 

theory that he lacked the capacity to premeditate.  Specifically, she reminded the jury that he had 

told Dr. Ward that he felt remorse after he killed Barbara and that he wished he could have 

controlled himself.  She then relied on Nettlebeck's subsequent actions -- walking from the living 

room to the back patio, striking Hawkins with two ax blows, and declining to summon help for 

two hours ("[o]ne phone call would have brought them there") -- to draw a reasonable inference 

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that he, in fact, had control over his actions.  See RP at 1140.  Based on this analysis, she asserted 

that Dr. Beaver's conclusion that Nettlebeck lacked the capacity to premeditate was 

unreasonable.  All of this was proper argument.  The prosecutor was relying on evidence, and 

reasonable inferences from that evidence, to suggest that Nettlebeck committed the murders with 

premeditated intent.

       The prosecutor's queries about whether Nettlebeck felt "joy" or "pleasure" at Hawkins's 

suffering, however, are troubling because they potentially appeal to the jury's passion and 

prejudice.  On appeal, the State justifies these queries by stating, "If it is unreasonable, as the 

deputy prosecutor properly inferred from the testimony, that the defendant felt remorse after the 

murder, then it would be reasonable to infer from that testimony that he might have felt something 

else."  Resp't's Br. at 36.  It is difficult to quarrel with that argument.  But the prosecutor here 

took that argument one step further, giving name to the emotions that he "might have felt" after 

committing two gruesome murders.  Resp't's Br. at 36.

       Even if the prosecutor's "joy" and "pleasure" comments constituted misconduct, however, 

Nettlebeck cannot demonstrate a substantial likelihood that these comments affected the jury's 

verdict. See Gregory, 158 Wn.2d at 841.  Here, the State presented compelling evidence of 

premeditation, including Nettlebeck's admissions that he (1) got into an argument with his wife 

about a court date; (2) "lost it" and "snapped" during the argument; (3) retrieved an ax that was 6 

feet away from where he and his wife were arguing; (4) felt overwhelming stress when he saw the 

ax because of "Barb and her attorney" and because he had no money or place to stay, (5) hit his 

wife in the head with the ax; (6) felt remorse after killing his wife but nevertheless proceeded to 

take the ax outside to the back patio; (7) hit his stepdaughter in the head two or three times with 

                                               19 

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an ax; and (8) "didn't blackout" while killing his wife and stepdaughter.  RP at 264, 266, 271, 

906.  Additionally, the State presented medical evidence that the fatal ax blow to Barbara's neck 

likely occurred as she lay on the floor.  Finally, Dr. Ward testified that Nettlebeck had the capacity 

to premeditate at the time of the murders.  Accordingly, there is no substantial likelihood that the 

prosecutor's comments affected the jury verdict.  Rather, there is a strong probability that the 

compelling evidence of Nettlebeck's premeditation -- and not the prosecutor's speculation about 

his emotions after the murders -- led the jury to convict him of two counts of first degree murder.

IV.    Sufficiency of  Evidence to Prove Aggravating Circumstance

       Finally, Nettlebeck contends that insufficient evidence supported the jury's special verdict 

finding the aggravating circumstance in RCW 10.95.020(10).  Specifically, he asserts that the 

State did not prove that the murders were part of a "common scheme or plan" because it "did not 

prove the killings were part of an overarching criminal plan."   Appellant's Br. at 25-26.  We 

disagree. 

       A.     Standard of Review

       When an appellant challenges the sufficiency of an aggravating circumstance under RCW 

10.95.020, we review the evidence in the light most favorable to the State to determine whether 

any rational trier of fact could have found the presence of the aggravating circumstance beyond a 

reasonable doubt.  State v. Yates, 161 Wn.2d 714, 752, 168 P.3d 359 (2007).  In a sufficiency 

challenge, we draw all reasonable inferences from the evidence in the State's favor.  Yates, 161 

Wn.2d at 752.  Circumstantial and direct evidence are equally reliable.  Yates, 161 Wn.2d at 752.

       A person is guilty of aggravated first degree murder "if he or she commits first degree 

murder as defined by RCW 9A.32.030(1)(a)"13 and one or more of the statutory aggravating 

                                               20 

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circumstances from RCW 10.95.020 is present.  RCW 10.95.020.  Here, the jury found that the 

State proved the following aggravating circumstance: "There was more than one victim and the 

murders were part of a common scheme or plan or the result of a single act of the person." RCW 

10.95.020(10).

       B.     Nature of Nettlebeck's Challenge

       As a preliminary matter, Nettlebeck argues only that the State presented insufficient 

evidence of the "common scheme or plan" prong of the aggravating circumstance.  He does not 

dispute that there were multiple victims or that the murders were the result of a single act.  See 

State v. Guloy, 104 Wn.2d 412, 418-19, 705 P.2d 1182 (1985) (approving a jury instruction 

defining a "single act" as "crimes [that are] . . . part of a continuous transaction, and set in motion 

by a single unintermittent force.").  Because the  "single act" and  "common scheme or plan"

requirements appear in the disjunctive, the State need only prove one of these alternatives.  See 

RCW 10.95.020(10).  Arguably, therefore, because Nettlebeck fails to argue that the State did not 

present sufficient evidence of either prong, his argument on appeal, even if correct, would not 

entitle him to relief.  

       Nevertheless, we address Nettlebeck's claims on the merits.  Because the special verdict 

forms did not break RCW 10.95.020(10) into its constituent parts, there is no way to know 

whether the jury found one or both alternatives.  This is analogous to a situation in which a jury 

convicts a defendant of an alternative means crime; in such cases, we uphold the conviction only if 

sufficient evidence supports each alternative means.  See State v. Kintz, 169 Wn.2d 537, 552, 238 

13 "A person is guilty of murder in the first degree when . . . [w]ith a premeditated intent to cause 
the death of another person, he or she causes the death of such person or of a third person."  
RCW 9A.32.030(1)(a).
                                               21 

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P.3d 470 (2010).  

       C.     The State Presented Sufficient Evidence of a "Common Scheme or Plan"

       To prove the "common scheme or plan" aggravating circumstance, the State must 

demonstrate a "'nexus between the killings.'"  State v. Finch, 137 Wn.2d 792, 835, 975 P.2d 967 

(1999) (quoting State v. Pirtle, 127 Wn.2d 628, 661, 904 P.2d 245 (1995)).  A "nexus" exists 

when "an overarching criminal plan" connects the murders.  Finch, 137 Wn.2d at 835.    

       Viewing the evidence in the State's favor, the jury could have found that Nettlebeck killed 

his wife and stepdaughter as part of "an overarching criminal plan" to avenge his wife's decision 

to divorce him.  Nettlebeck told a counselor that his wife had left him homeless, had withdrawn 

money from their bank account, and had left him penniless.  He told Benson, "'It's been a bad 

month'" and explained that he and his wife had been going through a divorce.  RP at 549.  He 

admitted to both Heacock and Dr. Ward that he and Barbara were discussing the divorce 

proceedings when he killed her.  Specifically, he told Heacock that they were arguing about a 

court date when he "lost it" and killed her.  RP at 264, 270.  Similarly, he told Dr. Ward that they 

"'were talking about the divorce, and it got to be too much for me to take, and I just went insane, 

went crazy.'"  RP at 904.  Additionally, when Dr. Ward asked him about his "'thoughts and 

emotions'" when he saw the ax, Nettlebeck responded that he felt stressed because he had no 

money or place to stay, and he said, "'The stress I was getting from Barb and her attorney was 

overwhelming me.'" RP at 906.  Taken together, this is strong evidence that Nettlebeck killed his 

wife because he was angry at her about the divorce.

                                               22 

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       Additionally, drawing all reasonable inferences in the State's favor, the jury could have 

found that Nettlebeck killed Hawkins for the same reason.  Hawkins actively assisted her mother 

during the divorce.  Hawkins helped arrange service of the paperwork, consulted the divorce 

attorney with her mother, and appeared at multiple court hearings.  Nettlebeck told the hotel clerk 

that Hawkins was the source of his marital problems.  

       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                           Penoyar, C.J.

We concur:

       Van Deren, J.

       Worswick, J.

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