Opinion
Randall Avery Sutton, Kitsap Co Prosecutor's Office, Port Orchard, WA, for Respondent.
Catherine E. Glinski, Attorney at Law, Manchester, WA, for Appellant.
PUBLISHED IN PART
HUNT, J.
¶ 1 Brian Keith Lord appeals his aggravated first degree murder conviction. He argues that the trial court erred in (1) excluding evidence of a bloodhound's track, (2) allowing the State to introduce a photograph of the victim's sister, (3) admitting evidence of Lord's drug use, and (4) allowing courtroom spectators to wear buttons with the victim's picture. He argues further that State failed to preserve material exculpatory evidence and that defense counsel was ineffective because he failed to request a mistrial and to object to the prosecutor's misstatement of evidence during closing argument.
¶ 2 In Lord's statement of additional grounds (SAG), he contends (1) the trial court erred by excluding evidence of Tom DeMars' prior convictions and drug use and excluding testimony from Susan Whitney; (2) the State committed misconduct by withholding evidence from him and by failing to collect and to preserve exculpatory entomology evidence; and (3) the cumulative effect of the errors deprived him of a fair trial.
RAP 10.10.
¶ 3 Finding no reversible error, we affirm.
FACTS PERTINENT TO PUBLISHED PART OF OPINION
¶ 4 Brian Keith Lord murdered 16-year old Tracy Parker in 1986. A Kitsap County jury convicted him of aggravated first degree murder, for which he was sentenced to death. The Washington State Supreme Court affirmed Lord's conviction and sentence in 1991. The United States Supreme Court declined to review our Supreme Court's decision and let the conviction and sentence stand.
¶ 5 In 1999, the United States Ninth Circuit Court of Appeals granted Lord's petition for a writ of federal habeas corpus. It reversed his conviction and remanded to Kitsap County Superior Court for a new trial. His retrial began in February 2003.
¶ 6 On the first day of trial, defense counsel asked the trial court to forbid some spectators in the courtroom from wearing buttons bearing a "head and shoulder shot" of Tracy Parker, about two and a half inches in diameter. According to the prosecutor, she was unable to recognize whose photograph was depicted on the buttons when she stood six to ten feet from the front row of the jury. The trial court denied Lord's motion to forbid the buttons. Lord neither moved for a mistrial nor requested a curative jury instruction.
Out of 31 spectators in the courtroom, 13 were wearing these buttons.
The buttons had no writing on them.
¶ 7 On the second day of trial, no one mentioned the buttons. On the third day of trial, eight spectators wore the buttons. Before trial on the fourth day, the trial court directed the spectators not to wear the buttons. The record does not mention that anyone wore the buttons in the courtroom thereafter.
¶ 8 The State did not seek the death penalty on retrial. After a lengthy trial involving many other legal issues, the jury convicted Lord of aggravated first degree murder, as charged. He was sentenced to life in prison.
ANALYSIS
¶ 9 Lord contends the trial court deprived him of his constitutional rights to confrontation and presumption of innocence by allowing courtroom spectators to wear buttons bearing Tracy Parker's picture during the first three days of trial. We agree that the better practice would have been for the trial court to have prohibited the buttons when Lord first requested, rather than on the fourth day of trial. But we find no denial of Lord's constitutional rights and no abuse of trial court discretion under the circumstances.
Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on ... other circumstances not adduced as proof at trial.
Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (citations omitted). Whenever a courtroom arrangement is challenged as inherently prejudicial, the question is not whether jurors actually articulated a consciousness of a prejudicial effect but whether there is an unacceptable risk of impermissible factors coming into play. Holbrook, 475 U.S. at 570, 106 S.Ct. 1340. If the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over. Holbrook, 475 U.S. at 570, 106 S.Ct. 1340. As there are no Washington cases discussing the propriety of spectators wearing buttons portraying a victim's picture, we address this issue as one of first impression.
¶ 10 Several cases from other jurisdictions are informative. Lord relies on Norris v. Risley, 918 F.2d 828 (9th Cir.1990), and State v. Franklin, 174 W.Va. 469, 327 S.E.2d 449 (1985). Norris was charged with kidnapping and sexual intercourse without consent. 918 F.2d at 829. The trial court allowed spectators associated with the Billings Rape Task Force and the National Organization for Women to wear buttons bearing the words, "Women Against Rape," with the word "Rape" boldly underlined in red. Norris, 918 F.2d at 829-30. The spectators wearing these buttons were present in the hallways and elevators at the same time jurors were present, and they prepared and served refreshments outside the courtroom for the State's witnesses. Norris, 918 F.2d at 829. Several jurors saw the buttons and their message. Norris, 918 F.2d at 831.
¶ 11 The Ninth Circuit Court of Appeals ruled that the spectators were sending a message to the jury by wearing the buttons, thereby depriving Norris of a fair trial. Norris, 918 F.2d at 834. The court held that the buttons eroded Norris's constitutionally guaranteed presumption of innocence, interfered with his constitutional right to cross-examine and to confront witnesses, and created an unacceptable risk of influencing the jurors. Norris, 918 F.2d at 834. The court reversed Norris's conviction and remanded for a new trial. Norris, 918 F.2d at 834.
¶ 12 In Franklin, the defendant was charged with driving under the influence of alcohol resulting in death. 327 S.E.2d at 451. Throughout the trial, 10 to 30 spectators seated in front of the jury wore buttons bearing the acronym "MADD," which stands for "Mothers Against Drunk Driving." Franklin, 327 S.E.2d at 454. The spectators were led by the sheriff, who was passing out buttons outside the courtroom; at least one of buttons was given to a potential juror. Franklin, 327 S.E.2d at 454. Despite defense counsel's repeated requests for a mistrial, the trial court neither prohibited the buttons nor granted a mistrial. Franklin, 327 S.E.2d at 454. The West Virginia Supreme Court of Appeals ruled that those spectators, led by the uniformed sheriff, "constituted a formidable, albeit passive, influence on the jury"; the Court reversed Franklin's conviction and remanded for a new trial. Franklin, 327 S.E.2d at 455-56.
In State v. McNaught, a Kansas court found no prejudice where spectators wore "MADD" (Mothers Against Drunk Driving) and "SADD" (Students Against Drunk Driving) buttons. 238 Kan. 567, 713 P.2d 457, 468 (1986). The record did not indicate how many people wore buttons, for how long, or whether any jurors saw the buttons. 713 P.2d at 468. The court ruled that the defendant did not show he was prejudiced. 713 P.2d at 468.
¶ 13 We find more analogous, however, three other cases from Virginia, Texas, and North Carolina in which the spectators wore buttons bearing the victim's photograph. In all three cases, the reviewing court affirmed the defendants' convictions because the buttons caused no prejudice. In Johnson v. Commonwealth of Virginia, Johnson objected to the spectators wearing "campaign-size" buttons with the victim's photo. 259 Va. 654, 529 S.E.2d 769, 781, cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000). The trial court allowed the buttons, provided the jury could not see them; it prohibited any button--wearer from contacting any jurors. Johnson, 529 S.E.2d at 781-82. Johnson did not further object. Johnson, 529 S.E.2d at 782. Nothing in the record showed that the buttons prejudiced Johnson. Johnson, 529 S.E.2d at 781. The Virginia Supreme Court affirmed.
¶ 14 In Nguyen v. Texas, seven of at least 25 courtroom spectators were wearing large buttons portraying a color photograph of the victim. 977 S.W.2d 450, 457 (1998). The trial court denied Nguyen's request to order the spectators to remove the buttons. Nguyen,Nguyen, 977 S.W.2d at 457. The record did not reveal where the spectators were sitting, whether they were sitting together, whether the jurors saw the buttons, or if the buttons improperly influenced the jury's verdict. 977 S.W.2d at 457. Finding no prejudice, the Texas Court of Appeals affirmed the lower court's ruling. Nguyen, 977 S.W.2d at 457.
¶ 15 In State v. Braxton, defendants appealed the trial court's denial of a mistrial, claiming that spectators' buttons bearing a photograph were an attempt to influence the jury and, therefore, inherently prejudicial. 344 N.C. 702, 477 S.E.2d 172, 176 (1996). The North Carolina Supreme Court distinguished Braxton from cases where the spectators' badges exclaimed a specific message, as in Norris and Franklin. Braxton, 477 S.E.2d at 177. As in Nguyen, in Braxton, the record did not show the number or identity of the spectators, the identity of the person in the photograph, whether the jury saw the buttons, or that the spectators belonged to a well-known organization. Braxton, 477 S.E.2d at 177. Finding no facts in the record to show prejudice or to indicate that the trial court abused its discretion by allowing spectators to wear the buttons, the Braxton Court affirmed the convictions. Braxton, 477 S.E.2d at 177.
¶ 16 On the first day of Lord's trial, defense counsel noted that courtroom spectators were wearing buttons. The record shows that 13 out of 31 spectators were wearing buttons bearing a "head and shoulder shot" of Tracy Parker, about two and a half inches in diameter, with no written message. Standing six to ten feet from the front row of the jury, the prosecutor could not recognize whose photograph was depicted on the buttons. The trial court denied Lord's request to exclude the buttons. For the next two days of trial, the record contains no further mention of the buttons.
¶ 17 The record does show that on the third day of trial, eight spectators wore the buttons. Before trial began on the fourth day, in response to Lord's continuing objection, the court revisited the button issue and directed the spectators to cease wearing the buttons. The trial court noted, however:
[The buttons do] not convey a message other than to the friends and family of Tracy Parker, and there's no comment contained in the buttons other than you have an association with Ms. Parker, and in my personal opinion this does not rise to the level of being inherently prejudicial or presenting an unacceptable threat to a fair trial.
Report of Proceedings (RP) Vol. 9 at 1195. Lord neither moved for a mistrial nor requested a special jury instruction about the buttons. And the record does not reveal that anyone wore the buttons during the remaining 28 days of trial.
¶ 18 Lord does not allege, nor has he shown, prejudice. The record does not show that (1) any jurors ever saw the buttons; (2) even had the jury noticed the buttons, they could have seen the photo, and whom it depicted, from where they were seated; or (3) there was any contact between any juror and any spectator wearing a visible button. Moreover, the buttons did not portray a message, and only a few spectators wore them during the first three days of the 31-day trial.
¶ 19 The record Before us does not demonstrate that the buttons influenced the jury. Although the better practice would have been to have prohibited the buttons in the court house at first sight, the trial court later ordered the buttons removed, in spite of the absence of prejudice. In so doing, the trial court avoided the possibility of future contamination of the jury and prejudice to Lord.
¶ 20 We hold, therefore, that the buttons did not deprive Lord of his constitutional rights to confrontation and presumption of innocence, and any error was harmless.
¶ 21 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
******UNPUBLISHED TEXT FOLLOWS******
FACTS PERTINENT TO REMAINDER OF OPINION
¶ 22 Tracy Parker was 16 years old in 1986 when she regularly rode horses at the home of Sharon and Wayne Frye in Poulsbo with their permission. There was a one-half mile path through the woods between the Frye and the Parker residences.
¶ 23 Brian Keith Lord was a friend of the Fryes and worked for them as a handyman. He became acquainted with Parker at the Frye residence while he was there working and she was there riding the horses.
Many of Lord's family members and friends refer to Lord by his middle name, Keith.
¶ 24 Lord had lived with the Fryes in the past, but he had moved in with his girlfriend a month Before Parker's murder. Lord worked various odd jobs, including working on the Fryes' roof; he had permission to enter the Fryes' house and to use their telephone.
¶ 25 Lord also worked at his brother Kirk's business, Door Details. In September 1986, Kirk was working in California, where he was joined by his wife and sons.
I. LORD'S AND PARKER'S ACTIVITIES ON THE DAYS PRECEDING HER MURDER
¶ 26 On September 15, 1986, Robert Machinski, a co-worker, helped Lord burn some old green fencing. They used an orange U-Haul blanket to sweep the remaining debris, and Lord dropped part of the blanket into the fire and singed it. When they were done, Machinski folded the blanket and put it in Kirk's shop.
¶ 27 Kirk's wife, Robin, notified her parents, the Carrolls, that she and Kirk were returning from California on September 16. During the day, on September 16, Don Carroll made three trips to Kirk's house to deliver wood for the family when they returned. The Carrolls went out for their anniversary dinner around 6:30 P.M.
¶ 28 At approximately 6:30 or 7:00 P.M., Lord was late for a meeting with Chris Rongve to discuss work. Rongve was busy speaking with other people, but he saw Lord waiting in his car with a beer between his legs. Lord and Rongve rescheduled their meeting for another time.
¶ 29 Earlier that same day, Parker had told her mother that she was going to ride horses after school. No one was home at the Frye residence that evening, but several people saw Parker riding the Fryes' horse between 7:00 and 8:00 P.M. While riding, Parker stopped at separate times to talk with Pat Germaine and Jana Vanderdoes May, telling them she planned to return the horse Before dark and go home.
¶ 30 According to the Fryes' telephone bill, someone used their phone to call Lord's apartment from 7:44 until 7:56 P.M. At approximately that time, Lord's girlfriend spoke with Lord on the phone, she was upset because Lord was not at their apartment for a special dinner with her family. Lord was also supposed to be building a dinner table for their apartment at Kirk's shop. Lord told his girlfriend that he would be late for the dinner, but he was not sure how late.
¶ 31 Sometime around 8:00 P.M., Parker called her friend Taunya Olson, but Taunya's mother said that she could not come to the telephone. Parker did not say from where she was calling, but Taunya's mother said Taunya would call her back.
¶ 32 Mrs. Frye left her friend's house to go home at approximately 8:00 P.M. and would have arrived home around 8:30. No one was at her house when she arrived, and nothing appeared out of order.
. The horse Parker had been riding was put away.
¶ 33 Parker's mother, Barbara, came home from work at approximately 8:30 P.M. Parker was not home yet. Barbara fell asleep waiting for her daughter in the living room.
¶ 34 Expecting Robin and Kirk to arrive home at 9:00 P.M., the Carrolls finished eating dinner and went to Kirk's house at about 8:30 to start a fire for them.
¶ 35 At 8:35, Lord drove Kirk's truck quickly into Kirk's driveway; the truck was smoking and steaming. Lord got out of the truck, wearing only jeans. He looked like he was preparing to leave in his Camaro until Don Carroll told Lord that Kirk was coming home.
¶ 36 Lord then washed the truck and hosed down the bed, leaving debris still in it. Lord also hosed off one side of the Camaro. He told Don Carroll that he was building a stereo cabinet for Kirk, but Lord would not let Carroll see it.
Not only did Lord not make a stereo cabinet for Kirk, but also he did not make a dining table for the apartment he shared with his girlfriend.
¶ 37 Kirk and his family arrived home between 9:00 and 9:30 P.M. Kirk spoke with Lord for 10 to 15 minutes and then went inside his house. Kirk did not go into the shop that night. Lord remained outside the house for another 20 to 30 minutes and then left in his Camaro.
¶ 38 When Lord arrived at his apartment at approximately 10:00 P.M., dinner guests were sitting in the living room. Lord leaned against the wall with a blank look on his face, and no one said anything. After a few moments, one guest, Dennison, said, "Somebody say something." Lord turned and walked into the bathroom.
¶ 39 Some of the guests left, but Lord did not come out of the bathroom. When Lord came out of the bathroom five or six minutes later, he walked into the kitchen and cleaned a cut on his arm. He offered no explanation for why he was late.
¶ 40 The next morning, September 17, Kirk woke up at approximately 8:00 A.M. Lord was already outside moving shop wood scraps and about 10 to 12 inches of sawdust from the back of Kirk's blue truck into a beige truck owned by his Lord's girlfriend's father. On the shop floor were water puddles, apparently caused by someone having hosed it out the night Before .
II. PARKER DISCOVERED MISSING
¶ 41 When Parker's mother, Barbara, woke up that same morning, September 17, she noticed that Parker had not come home. Parker had not slept in her bed and her purse was still there. Barbara called Parker's father, but he had not heard from Parker either. Nor did Parker attend school that day, September 17.
¶ 42 Around 10:00 A.M., approximately 100 people gathered at the Parker residence and began to look for Parker; they searched the area until dark. The Kitsap County Sheriff's Department was treating Parker as a runaway, so the family hired a private investigator and dog tracker to search for Parker.
¶ 43 Paul Holden, Robert Huff, and Greg Ayers attended school with sisters, Tracy and Shannon Parker. The three males knew Tracy and Shannon as acquaintances. Holden, Huff, and Ayers had been riding in a car together sometime around September 17, when they believed they saw Tracy Parker walking on the side of the road. After learning that Tracy Parker was missing, they reported to police that they thought they had seen her.
¶ 44 On September 21, the Parkers and a local boy scout with search and rescue experience organized another search party of more than 200 people. Late in the day, they found Parker's jacket, red sweatshirt, jeans, underpants, and shoes near Island Lake. Nearby, they found a bath towel that looked like the towel used as a curtain in the Fryes' garage. The search leader called the sheriff's department.
¶ 45 Deputies arrived, photographed the scene, and collected the clothing. Before sending the clothing to the crime lab, Detective Hudson examined it and found wood chips, paint chips, and charcoal or sand. From that point on, the Sheriff's Department treated Parker's disappearance as a major crime.
¶ 46 On September 22, a third search party found an orange U-Haul blanket in a residential construction area near where the clothes had been found; the blanket appeared to have blood stains on it, and it was singed. A deputy seized the blanket. Machinski read about the blanket in the newspaper and, recognizing the blanket as similar to the one he had helped Lord use to unload debris at Kirk's shop, he contacted the police.
III. INVESTIGATION
¶ 47 On September 24, Lord told detectives that (1) he had last seen Parker about two weeks earlier when she was riding a horse at the Frye residence; (2) he had not seen her on September 16; (3) on the 16th, he had been at his brother Kirk's house during the day, polishing Kirk's truck and building a coffee table; (4) after going home for a while, he returned to the Fryes' house; (5) he did not see anyone at the Frye residence, but the door to the basement was open; (6) he used the telephone to call his brother Kirk and then went back to Kirk's house; (7) Lord returned home some time between 9:00 and 10:00 P.M.; and (8) he returned to Kirk's house the next morning to spray lacquer on the table that he built and to work on Kirk's truck. Lord mentioned nothing about having driven Kirk's truck on the 14th or the 16th.
¶ 48 Lord told his girlfriend's father that (1) Parker was missing; (2) if he were looking for someone, he would look in the Island Lake area; and (3) he could have been the last person to see Parker alive because he had seen her the day she disappeared. Lord's girlfriend's father called the police after reading a newspaper article reporting that Lord had told the police he had not seen Parker on the day she disappeared.
¶ 49 On September 27, detectives went to the Frye residence. While examining the basement, detectives found red stains on the door panel, red splatters on the wall and ceiling next to the door, and red drops on the floor and near the base of the wall.
¶ 50 On September 29, detectives inspected Kirk's property. There were wood shavings on the floor of the shop similar to those found on Parker's clothes and the blanket. The overhead door had red splatters on it, and there were swirls adjacent to the splattered area, as if the area had been cleaned. Detectives collected samples of the red stain and the shavings on the floor.
¶ 51 About 10 feet from the shop was a fire pit and a sand pile. The sand was "sharp" like the sand found on Parker's clothes. The detectives collected some sand, a broom from Kirk's shop, a rope from the back of Kirk's blue truck; floor sweepings from the cab of the blue truck; the truck's steering wheel; and paint samples from the truck's exterior.
IV. LORD'S ARREST
¶ 52 On September 30, teenagers riding horses discovered Parker's body in some bushes off the road. Her sweatshirt, polo shirt, T-shirt, and bra were pushed up above her breasts. They called 911 and officers arrived within five to ten minutes. The Kitsap County Sheriff's Department asked members of King County's Green River Task force to assist in processing Parker's body.
¶ 53 On September 30, detectives went to Lord's residence to speak with him again, but Lord said he had a job to do and he would not be home until 6:00 P.M. When the detectives returned at 4:45, Lord was home. They asked Lord to come to the sheriff's office for questioning, and he agreed. The detectives read and Lord waived his Miranda rights. Lord then gave a statement.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
¶ 54 For the most part, Lord's statement was similar to the one he had previously given detectives on September 24. This time, however, Lord told the detectives that the last time he had driven Kirk's blue truck was September 14. Lord contradicted himself: He first stated that no one else was present when he was at Kirk's residence on the 16th from 8:00 to 9:00 P.M.; later, he said that the Carrolls had been at Kirk's residence "the entire time."
¶ 55 When detectives asked if Lord knew whether Parker had a crush on anyone, Lord said that Parker "had the hots for" Matt Kelly and someone named "Dave." Lord also stated that Parker was attractive and starting to "fill out."
¶ 56 Lord told detectives that (1) he had smoked marijuana and had been drinking alcohol approximately two weeks Before that interview; and (2) when he uses alcohol and marijuana together, he loses control and becomes a different person.
V. POST-ARREST
¶ 57 After officers arrested him, Lord called Machinski several times from the jail to discuss what Machinski had told police. Lord offered to give Machinski a truck and a motorcycle if he would change what he had told police about the color of the U-haul blanket.
¶ 58 Lord also contacted his friend Thomas DeMars. Lord asked DeMars if he could find someone who would tell the police that he or she had been driving Kirk's truck on September 16. Lord offered to give DeMars a truck and motorcycle if DeMars would tell police that he (DeMars) was driving Kirk's truck that day. Lord called DeMars multiple times about this offer.
Some of the items found on Parker's clothes matched items found in the truck and sweepings from the truck: charcoal, colored fibers, green paint chips, blue paint chips, and metal shavings.
¶ 59 On October 2, the medical examiner, Dr. John Howard, performed the autopsy on Parker and determined that the time of death had been 10 to 20 days earlier. Parker's body had sustained many blunt force injuries; blunt force impact to her head was the cause of her death. The medical examiner also found (1) a laceration of her labia caused by a hard blunt object; (2) sperm in her vagina; and (3) insects on her body, which he did not recall collecting for evidence.
¶ 60 King County Detectives William Beden, Doug Hudson, and Sheriff Dave Reichert assisted Kitsap County in collecting evidence. They were somewhat familiar with the forensic value of entomological evidence, but they did not preserve any insects or consult with an entomologist on this case.
¶ 61 Dr. Neal Haskell, a private forensic entomologist hired by Lord, conducted simulations to determine the possible times of Parker's death. Based on the growth speed of various species of blowflies, Dr. Haskell opined that (1) the insects colonized Tracy Parker's body between September 18 and 24, 1986; (2) the most likely colonization dates were September 20 or 21; and (3) the insects would likely colonize a body on the date when the body appears outside.
¶ 62 The State crime lab tested various pieces of evidence and completed comparative analyses with the following results:
¶ 63 Charcoal fragments: Fragments of charcoal, similar to those on the singed, orange U-Haul blanket, were also collected from the clothes found at Island Lake, the broom from Kirk's shop, in the sweepings from Kirk's blue truck, on the clothes that remained on Parker's body, and in Parker's hair.
¶ 64 Orange fibers: The orange U-Haul blanket was made of tough, course polyester fiber. Consistent orange fibers were collected from the clothes found at Island Lake, the clothes that remained on Parker's body, Parker's hair, the blue blanket from Kirk's shop, and the rope from the back of Kirk's truck.
¶ 65 Pale brown carpet fibers: Pale brown fibers were collected from the red sweatshirt and the towel found with Parker's clothes in Parker's hair, on the orange U-Haul blanket, and in the debris from Kirk's blue truck. The source of these fibers was unknown.
¶ 66 Red cotton fibers: Red cotton fibers were on the orange U-Haul blanket and the jeans found at Island Lake, on the clothing on Parker's body, on Kirk's blue truck's steering wheel, and in the sweepings from the truck.
¶ 67 Royal blue cotton fibers: The polo shirt found on Parker's body was made of royal blue cotton fibers. Matching royal blue cotton fibers were found on Kirk's blue truck's steering wheel.
¶ 68 Plaster: Plaster was found on the orange U-Haul blanket, on the clothes found at Island Lake, and on the clothes on Parker's body.
¶ 69 Yellow paint chips: Consistent yellow paint chips were found on the orange U-Haul blanket and on the clothes on Parker's body.
¶ 70 Red paint chips type 1: Red paint chips type 1 were collected from the orange U-Haul blanket, the jeans and sweatshirt found in the Island Lake woods, Parker's hair, and the blue blanket and broom in Kirk's shop.
¶ 71 Red paint chips type 2: Red paint chips type 2 were collected from the orange U-Haul blanket, the Island Lake clothing, and the clothes on Parker's body.
¶ 72 Green paint chips type 1: Green paint chips type 1 found on Parker's leg and in Kirk's shop sweepings matched the paint on the fence that Lord had demolished and burned on September 15, 1986.
¶ 73 Green paint chips type 5: Green paint chips type 5 collected from the orange U-Haul blanket, Parker's jacket and the red sweatshirt found in the brush at Island Lake, and the sweepings from Kirk's blue truck also matched paint on the same fence.
¶ 74 Blue paint: Detectives scraped blue paint from Kirk's truck. They also collected "consistent" blue paint chips from the orange U-Haul blanket, the clothes found at Island Lake, the clothing on Parker's body, Parker's hair, Kirk's blue truck's steering wheel, the debris inside the truck's cab, and the broom police had seized from Kirk's shop on September 29.
¶ 75 White paint chips: White paint chips were collected from the orange U-Haul blanket; debris from the truck; the jacket, towel, jeans, and red sweatshirt found in the brush at Island Lake; and the clothes on Parker's body.
¶ 76 Metal shavings: Metal shavings, consistent in color and shape and microscopically and chemically indistinguishable, were collected from the orange U-Haul blanket, the Island Lake clothing, Parker's body, the cab of Kirk's blue truck, and the broom from Kirk's shop.
¶ 77 Dog Hair: There were 16 dog hairs on the orange U-Haul blanket, four on the clothes at Island Lake, and eight in the shop were "consistent" with hairs from Kirk's dog "Tammy." Eight other dog hairs on the blanket, nine on the Island Lake clothes, six hairs from the clothes on Parker's body, and six hairs from the shop were consistent with the Fryes' dog, "Shandy."
"Consistent" with Tammy's hair means "there could be another dog out there that had the same range of characteristics or partial range of characteristics." RP Vol. 22 at 3238.
¶ 78 Since 1986, several different laboratories have tested the blood and other fluid samples. There were multiple attempts to test the vaginal swabs for DNA, but the samples were so small and deteriorated that the results did not produce a conclusive DNA profile.
¶ 79 Mitotyping Technologies tested a hair from the Island Lake towel for mitochondrial DNA. The results excluded Parker, Wayne Frye, and Machinski, but the sequence was the same as Lord's. Statistically, only .06 percent of the population would have the same sequence as Lord, and his maternal blood line. LabCorp conducted the same type of testing on a hair collected from the orange U-Haul blanket and found that it matched Lord's hair and excluded 99.4 percent of the population.
Mitochondrial DNA is the same from a mother to her child and among siblings.
¶ 80 LabCorp tested one of the wood scrapings, which contained red splatter from the inside of the overhead shop door at Kirk's residence. The test produced a complete genetic profile consistent with Parker and excluding Lord as the source of the blood.
VI. FIRST TRIAL, 1986
¶ 81 In 1986, the Kitsap County Prosecuting Attorney charged Brian Keith Lord with aggravated first degree murder for killing Tracy Parker in the course of raping and/or kidnapping her. In addition to other information, the State disclosed to the defense a police report that private (non-police) searchers had brought in bloodhounds to search for Parker.
¶ 82 A jury found Lord guilty. Based on the aggravating facts, the trial court sentenced him to death. The Washington Supreme Court affirmed Lord's conviction and sentence on direct appeal. State v. Lord, 117 Wash.2d 829, 916, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992). The Washington Supreme Court also denied Lord's petition for post conviction relief. Matter of Personal Restraint of Lord, 123 Wash.2d 296, 333, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994).
¶ 83 Lord petitioned for a writ of habeas corpus in federal court. Ultimately, the Ninth Circuit Court of Appeals granted his petition, reversed his conviction, and remanded the case to Kitsap County Superior Court for a new trial. Lord v. Wood, 184 F.3d 1083, 1096 (9th Cir.1999).
VII. SECOND TRIAL, 2003
¶ 84 The State again charged Lord with aggravated first degree murder, using the amended information from November 24, 1986.
A. Motion To Dismiss
¶ 85 On October 2, 2002, Lord moved to dismiss, contending that the State had failed to disclose evidence about a private bloodhound tracker's encounter with a person who might have seen Parker get into a car sometime during the weeks surrounding her disappearance. On August 12, 2002, defense investigators spoke with Harry Anderson, who told them that (1) he and his dog had tracked Parker's scent from the Frye residence, through the woods, and out to the street; (2) a woman in a motor home on the side of the road had told Anderson that she saw someone who looked like Parker get into a black car with a bird on it; (3) he (Anderson) had called the Kitsap County Sheriff's Department and reported his activities, including what the woman in the motor home had said; and (4) the sheriff's office had said they were treating Parker as a runaway at that time. Lord argued that the State should have disclosed all of this information back in 1986, because in 2002, the defense was unable to locate the woman from the motor home.
¶ 86 The State responded that it had provided the defense with all its evidence about the bloodhound tracking and Anderson back in 1986. Moreover, the additional information that defense investigators had found was not in any police report and the State was not aware of the details.
¶ 87 The trial court denied the motion, ruling that the State had properly disclosed the information that it possessed, and it did not withhold any material evidence.
B. Motions in Limine
¶ 88 The State moved in limine to exclude the bloodhound track, arguing that it was not relevant under Evidence Rule (ER) 401. Lord made an offer of proof, including testimony from Anderson. But Anderson could not narrow the time frame to less than a two-week window, which meant Parker could have left the track the blood hound followed days Before she disappeared. The trial court granted the State's motion and excluded evidence of Anderson's dog tracking as irrelevant.
¶ 89 Lord moved to exclude evidence of his drug use, which had been admitted at his first trial. In his first appeal, the Washington Supreme Court had affirmed the trial court's admission of this evidence, stating, "Under ER 403, the [trial] court concluded that the evidence was relevant because the proximity in time, coupled with Lord's own activities and statements, made the statements rationally and probatively related to the crime." Lord, 117 Wash.2d at 873, 822 P.2d 177. Noting the Supreme Court's earlier decisions and finding no changes in the law or facts since the earlier decision, the trial court held that the law of the case doctrine applied and the evidence was admissible, over Lord's objections.
The Court again rejected Lord's claim in his subsequent personal restraint petition. Lord, 123 Wash.2d at 329-31, 868 P.2d 835.
¶ 90 The State moved to exclude testimony from Susan Whitney, the court clerk from Lord's first trial. Lord argued that part of his defense theory was that Parker's DNA was found in the wood chips as a result of cross-contamination that might have occurred during the handling of unsealed evidence during the first trial. The State argued: (1) it was highly unlikely that Whitney would have an individual recollection of what happened with some 400 exhibits in 1987; (2) Whitney's testimony was not relevant under ER 401 because it did not make a significant fact more or less likely; and (3) Whitney's testimony should be excluded under ER 403 because it was likely to mislead the jurors into believing that all exhibits in the first trial had been unsealed and remained unsealed, when many exhibits had never been unsealed during the first trial. The trial court granted the State's motion and excluded Whitney's testimony.
C. Trial
1. Motions to exclude evidence
¶ 91 The State moved to exclude DeMars' prior convictions because they were over 10 years old. Lord argued that the convictions showed DeMars' potential bias. The trial court excluded DeMars' prior convictions because they were more than 10 years old and found there was no compelling reason to admit them.
¶ 92 The State also moved to exclude evidence of DeMars' drug use, arguing there was no connection between his drug use and his credibility. Lord contended that long-term methamphetamine use affected DeMars' memory and "fried his brain." DeMars testified that (1) he currently remembered both his 1987 testimony and the events of 1986 and 1987; and (2) drugs were not affecting his perceptions or ability to testify truthfully at Lord's trial. The trial court excluded DeMars' drug use.
¶ 93 Over Lord's objection, the State offered a photograph of sisters Tracy and Shannon Parker to rebut the testimonies of Holden, Ayers, and Huff, who claimed to have seen Tracy Parker the day after her murder. The photograph, taken approximately three months Before Tracy Parker was killed, showed the striking similarity between the two sisters. The trial court allowed the photograph as appropriate rebuttal testimony because (1) there were discrepancies in the three young men's testimonies concerning their alleged sighting of Tracy Parker; (2) looking at Shannon Parker as she testified in court in 2003, the resemblance between her and Tracy in 1986 was no longer apparent; (3) the photograph was relevant to show the sisters' similar looks in 1986; and (4) unfair prejudice did not outweigh the photo's probative value.
¶ 94 Lord asked the trial court to preclude the State from arguing that the three male witnesses had mistaken Shannon Parker for Tracy Parker when they reportedly saw Tracy walking along the road on September 17. The trial court granted Lord's motion, ruling that because there was no evidence that Shannon had been on the road on September 17, the State could not argue that the three young men had seen Shannon, not Tracy Parker. The trial court did allow the State to argue that the men's sighting had been very brief, they unsure of the details, and they could have been mistaken about whom they saw.
¶ 95 Lord appeals his jury conviction.
ANALYSIS OF REMAINING ISSUES
II. EVIDENCE
A. Dog Tracking
¶ 96 A criminal defendant is entitled to exculpatory evidence uncovered by the State. Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We review alleged Brady violations de novo. United States v. Woodley, 9 F.3d 774, 777 (9th Cir.1993). There was no Brady violation here because: (1) the State disclosed to Lord all the information it had about Anderson's dog tracking; (2) the information Lord claims the State withheld (namely, Anderson's contact with a woman on the road) was only potentially exculpatory; and (3) the allegedly withheld information was available to and discovered by the defense.
¶ 97 In October 2002, Lord moved to dismiss the charges against him, based on the State's failure to disclose evidence. In 1986, Before Lord's first trial, the State had disclosed to the defense in a police report that private searchers had brought in bloodhounds. On August 12, 2002, defense investigators discovered that (1) Harry Anderson and his dog had tracked Tracy Parker's scent from the Frye residence through the woods and out to the street; (2) a woman in a motor home on the side of the road had told Anderson that she saw someone who looked like Parker get into a black car with a bird on it; and (3) Anderson had called the Kitsap County Sheriff's Department to report his activities. Lord argued that the State should have discovered and disclosed to him all of this information because, in 2002, the defense was unable to locate the woman in the motor home.
¶ 98 The State responded that it had provided Lord with all its available bloodhound track evidence and had no duty to search independently for exculpatory evidence. In re Personal Restraint of Gentry, 137 Wash.2d 378, 399, 972 P.2d 1250 (1999). The State argued that Lord could have followed up on the police report of the bloodhound track back in 1986 and he might then have discovered the identity or location of the woman in the motor home. Ruling that the State had properly disclosed the information it had without withholding any material evidence, the trial court denied Lord's motion to dismiss. We agree.
¶ 99 Anderson was a private citizen hired by the Parkers to assist in the search for Tracy Parker. In Lord's offer of proof, Anderson stated that he had told the Sheriff's Department what he had learned, but he did not know with whom he had spoken. At the time, the Sheriff's Department had told Anderson that Parker was a runaway, Parker was not missing, that they did not have a search number, and Anderson should go home. A detective recorded that Anderson had conducted a dog track, and the State disclosed the Sheriff's Department report to the defense. The detective testified he was unaware of any dog tracking details other than those in the report. Nothing in the record shows that the State knew additional details about the dog tracking and/or the identity of the woman in the motor home; nor does it show that the State suppressed or destroyed such information.
Furthermore, Lord is not entitled to dismissal because, at best, the information was only potentially exculpatory, a fact not known to the State. See Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).
1. Preservation
¶ 100 Lord argues that we must dismiss the charges against him because the State failed to preserve material exculpatory evidence, namely Anderson's bloodhound's tracking and Anderson's conversation with a possible witness to Parker's disappearance. This argument fails for several reasons.
¶ 101 First, Lord has failed to show that the State uncovered, had knowledge of, or possessed such additional evidence of private parties' dog-tracking. See Brady, supra. On the contrary, Lord argues, in essence, that the State should have gathered the additional dog-tracking evidence that his investigators uncovered.
¶ 102 Second, to show a Brady violation, an accused must show that the prosecution suppressed evidence that was favorable and material to the defendant's guilt or to punishment. United States v. Bagley, 473 U.S. 667, 674-75, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). To be constitutionally material, the evidence must have an exculpatory value that is apparent Before the police destroy it, and it must not be reasonably available by other means. California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); State v. Straka, 116 Wash.2d 859, 883-84, 810 P.2d 888 (1991). Even assuming, without deciding, that the State destroyed or failed to preserve relevant dog--tracking evidence, Lord's argument also fails because he does show the evidence was clearly exculpatory. His argument that the evidence was exculpatory is speculative.
See section 2, infra, discussion about relevance and speculative nature of this evidence.
¶ 103 And when the evidence is only potentially exculpatory, as here, Lord must show that (1) its destruction, or failure to preserve it, resulted from bad faith by the police; and (2) the loss of this evidence was prejudicial. Otherwise, failure to preserve the evidence does not deny due process of law. Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Lord, 117 Wash.2d at 868, 822 P.2d 177; Straka, 116 Wash.2d at 886, 810 P.2d 888; United States v. Loud Hawk, 628 F.2d 1139, 1146 (9th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980). Lord has shown neither prejudice nor bad faith by the police.
Prejudice generally exists where there is a reasonable probability the outcome of the proceeding would have differed had the evidence been present. In re Personal Restraint of Benn, 134 Wash.2d 868, 916, 952 P.2d 116 (1998) (citing Bagley, 473 U.S. at 682, 105 S.Ct. 3375). In determining whether there was prejudice in the context of alleged failure to preserve evidence, the court weighs:
¶ 104 We hold, therefore, that Lord is not entitled to dismissal of his conviction based on the State's alleged destruction or failure to preserve additional details about Anderson's dog tracking.
2. Exclusion
¶ 105 Lord further argues that the trial court erred in excluding evidence of Anderson's bloodhound track as irrelevant because it deprived Lord of his constitutional right to present a defense. Again, we disagree.
¶ 106 A trial court maintains discretion over the admission of evidence. We will not disturb a trial court's evidentiary decision absent a showing of abuse of discretion. State v. Stubsjoen, 48 Wash.App. 139, 147, 738 P.2d 306, review denied, 108 Wash.2d 1033 (1987). The trial court abuses its discretion when its decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wash.App. 186, 190, 647 P.2d 39 (1982), reversed on other grounds, 99 Wash.2d 538, 663 P.2d 476 (1983). Lord fails to meet his burden here.
¶ 107 The trial court excluded the dog tracking because Anderson could not sufficiently pinpoint the time to establish relevance under ER 401. Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence. ER 401. The dog tracking evidence did not meet the relevance test.
. Moreover, we note that in 1986, dog tracking evidence had only recently developed acceptance in the scientific community. In State v. Loucks, the Washington Supreme Court held that dog tracking evidence should be admissible in a criminal prosecution where proper foundation is made showing the qualifications of the dog and handler. 98 Wash.2d 563, 566, 656 P.2d 480 (1983). Prior to the court admitting dog track evidence, a proponent must show:
¶ 108 In Lord's offer of proof, Anderson testified that his dog followed Parker's scent from the Fryes' barn, onto a trail, and out to the road, where he suspected Parker had gotten into a car. But Anderson could not remember the date that his dog followed Parker's scent, and he could not determine the date that Parker made the track. Anderson testified that his dog could track scents that were up to 17 days old; he opined, without legal foundation, that Parker's scent was likely fresher than 17 days old because the dog picked up the scent easily. Anderson could narrow the time frame to about only a two-week window during which Parker could have left the track.
¶ 109 Even assuming Lord could have established its scientific reliability and acceptance, Anderson's testimony would have shown only that the dog could have been tracking a path that Parker had made Before the date of her disappearance during one of her frequent visits to the Frye residence to ride horses. Without the exact date, the dog track does not tend to make a fact of consequence more or less likely than it would be otherwise. See ER 401. In excluding the evidence as irrelevant, the trial court noted that if Anderson had been able to determine that Parker had left her scent-track on September 16 or 17, then the dog track would have been relevant and admissible. But lacking such certainty, the dog track evidence was, at best, speculative, and, in any case, irrelevant.
Lord argues that Anderson explained that he started the track at the Frye stable and his dog followed the freshest scent. There was evidence at trial that Parker was at the Frye stable on September 16, the day she disappeared. Therefore, Lord concludes, Parker must have made the track in question on September 16. In order to reach this conclusion, the trial court would have had to rely on Anderson's assumption that his dog followed the most recent scent. Additionally, Parker was at the Frye residence on the day Before her disappearance, September 15, and she left on foot, after Ms. Frye declined to give her a ride home. That may have been the most recent track through the woods, and it would not be relevant. The trial court did not abuse its discretion by not relying on speculation.
Because Lord failed to establish the relevance of this evidence, we do not address his additional argument that excluding this evidence violated his constitutional right to present a defense because the evidence would have seriously undermined the State's theory of the crime.
¶ 110 We hold, therefore, that the trial court did not abuse its discretion in excluding this evidence as irrelevant.
B. Sperm Testing
¶ 111 In his SAG, Lord asserts that the State failed to disclose to the defense that Michael Nolan, from the State Crime Laboratory, counted the number of sperm on Parker's vaginal slide.
¶ 112 On March 31, 2003, Nolan testified that he had detected "very, very low levels of seminal fluid and very few spermatozoa." On April 10, 2003, Nolan testified more precisely that he had seen "five or less" spermatozoa. Lord did not object to either statement. And there is no indication in the record that the State withheld this information from the defense Before Nolan's testimony.
¶ 113 Generally a defendant's failure to object at trial waives the asserted error on appeal. State v. Brush, 32 Wash.App. 445, 456, 648 P.2d 897 (1982) (citing State v. Fagalde, 85 Wash.2d 730, 731, 539 P.2d 86 (1975)), review denied, 98 Wash.2d 1017 (1983). See also State v. Scott, 110 Wash.2d 682, 685-86, 757 P.2d 492 (1988) (appellate courts will not sanction a party's failure to point out at trial an error that the trial court, if given the opportunity, might have been able to correct). Although errors that affect manifest constitutional rights may be raised for the first time on appeal, see RAP 2.5(a)(3), Lord does not explain how Nolan's testimony affected such a constitutional right here.
Moreover, even were we to allow Lord to raise this issue for the first time on appeal, he does not explain how the exact number of sperm would have been of any consequence, either to his case or to the State's, especially in light of the small number of sperm, their aged condition, and the state of DNA testing and sperm preservation almost 20 years ago.
¶ 114 We hold, therefore, that Lord waived any challenge to Nolan's testimony about the number of spermatozoa on the vaginal slide.
C. Entomology Evidence
¶ 115 Lord further asserts in his SAG that the prosecution committed misconduct by failing to collect and to preserve exculpatory entomology evidence. Again, we disagree.
Lord presumes that entomology evidence would have been exculpatory. This is pure speculation.
¶ 116 Lord's argument presumes that collecting entomology evidence was standard practice in 1986, and that failing to do so was misconduct. The record does not establish that insect collection was a standard practice in 1986. Rather, the evidence in the record is to the contrary. For example, William Beden, of the King County Sheriff's Department, was the lead detective in evidence collection for the Green River Task Force; he assisted Kitsap County in processing Parker's crime scene. Beden testified that in 1986, the study of entomology was just developing and evolving. He recalled that Professor Paul Katz gave officers a one-day training session about the types of things that could be learned from insects. Beden did not recall consulting with an entomologist on this case, however.
¶ 117 King County Detective Doug Hudson recalled collecting a couple of insects from Parker's jeans, but he did not know what had become of them. Hudson did not consult an entomologist on this case.
¶ 118 King County Sheriff Dave Reichert testified that in 1986, he was familiar with the forensic significance of entomology. He testified that in some cases he had recognized and collected entomological evidence, but he did not recall doing so in this case. Reichert stated that as the science progressed, in the early 1990s, detectives would call an entomologist to the scene if there was a possibility of finding relevant evidence.
In some cases, someone in the medical examiner's office would collect entomological evidence from the body. Dr. John Howard, the associate medical examiner who conducted the autopsy on Tracy Parker, testified that insects were present on her body; but he did not recall collecting any for evidence.
¶ 119 In light of the nascence of entomological study in 1986, as compared to the present, we hold that Lord has failed to show that the State committed misconduct in failing to collect insects from Parker's body.
Nonetheless, we note that at his 2002 trial, Lord offered entomological testimony based on a simulation and current scientific knowledge in entomology. He called Dr. Neal Haskell, a private forensic entomologist, who testified about his conclusions regarding the date of Parker's death. Dr. Haskell testified that he was unaware of any insect samples collected from Parker's body, but he has consulted in a number of cases where police and medical examiners failed to collect and to preserve adequate specimens. Dr. Haskell had reviewed photographs from the autopsy and crime scene, the climatological data, the crime scene videotape, the autopsy report. He had also interviewed the forensic pathologist who had conducted the autopsy in 1986. Dr. Haskell had traveled out to the crime scene, collected insects from road-kill on the September murder anniversary dates, and had grown the insects to adulthood.
D. Photograph of Victim and Sister
¶ 120 Lord next argues that the trial court erred by allowing the State to introduce a photograph of Shannon and Tracy Parker for the purpose of impeaching the testimony of Paul Holden, Robert Huff, Jr., and Greg Ayers, who claimed to have seen Tracy Parker alive the day after her disappearance and murder.
¶ 121 Holden, Huff, and Ayers attended school with sisters Tracy and Shannon Parker, whom they knew as acquaintances. Generally, each of the young men testified that they had been riding in a car together when they saw Tracy Parker walking on the side of the road, the day after she went missing, September 17, 1986, approximately a half-mile from the Parker residence. The young men had reported seeing Tracy Parker to the police.
¶ 122 Holden testified that (1) he was not certain on what date he had seen Tracy Parker, walking eastbound on the Keyport Highway off Silverdale Way junction; (2) he was certain it was Tracy Parker, not Shannon Parker; and (3) when he told police about the sighting in 1986, he had been unsure of the date until he conferred with his friends, after which they determined that they had seen Tracy Parker on September 17.
¶ 123 Holden had originally told police in 1986, that he had seen Tracy Parker wearing blue jeans and a sweatshirt at noon, near the Scandia dip (north of the Silverdale Way and Keyport Highway intersection). Thereafter, Holden conferred with Huff and Ayers. Holden spoke with police again on September 21, at which time, he told police that (1) he had seen Tracy wearing a plaid button-up shirt between 5:30 and 6:00 P.M. where Silverdale Way intersects with Highway 308 (which is not the Scandia dip); (2) initially he had not thought he had seen Tracy Parker on Wednesday, September 17, because he would not have been in that area on that date; (3) but after talking to his friends, he decided it must have been that date, Wednesday, September 17.
¶ 124 Greg Ayers testified that (1) he really did not remember much at the time of trial; (2) when he spoke with police on September 21, 1986, he had thought he was certain about having seen Tracy Parker walking on September 17; (3) even in 1986, he was uncertain of the exact date until after speaking with his friends; (4) they had viewed Tracy Parker for approximately 10 seconds as they drove past her in a car; and (5) he had told police that Parker was wearing a yellow top, possibly a jacket.
¶ 125 Robert Huff testified, "I was fairly certain that it was her that I saw. Not 100 percent certain, but I was fairly certain. The exact day, though, we were a little bit in question about, and we wanted to collaborate and pinpoint the correct date." RP Vol. 30 at 4419. Huff described Tracy Parker's demeanor on the roadside as slow, slumped over, depressed, looking slightly down. Huff told police that he had seen Parker at Scandia dip between Keyport and Poulsbo at approximately noon.
¶ 126 Later in the trial, the State offered a photograph of Tracy and Shannon Parker taken approximately three months Before Tracy Parker was killed. The photograph showed the striking similarity between the sisters and the State offered it to rebut the testimony of Holden, Ayers, and Huff by casting doubt on their credibility in reporting having seen Parker on September 17. The trial court noted that when Shannon Parker testified in 2002, she no longer resembled her sister Tracy Parker, as she had in 1986. Thus, the trial court admitted the photograph, ruling that it was appropriate rebuttal to the discrepancies in the three young men's testimony, it was relevant, and unfair prejudice did not outweigh its probative value.
¶ 127 The following day, Lord asked the trial court to preclude the State from arguing that the three young men had mistaken Shannon Parker for Tracy Parker when they reportedly saw Tracy walking on September 17. The trial court granted this request: Noting there was no evidence that Shannon had been on the road on September 17, the trial court ruled that the State could not argue that the men had seen Shannon. The trial court did allow State, however, to argue that the men had had a very brief sighting, they were not sure of the details, and they could have been mistaken about whom they saw and the date.
Shannon Parker testified, "As far as I know I worked an eight-hour day that day, [September 17, 1986), to the] best of my knowledge." RP Vol. 8 at 1154. She further testified that she had gotten off work that evening, had dinner with her boyfriend at her mother's house, and engaged in searches on September 18 and 21, in which she walked along the road and looked in ditches.
¶ 128 Lord argues that suggesting the three young men had mistaken Shannon for Tracy is analogous to suggesting another suspect had committed the crime, without sufficient foundation for such speculation. We disagree. The cases that consider other-suspect evidence require a train of facts or circumstances that tend clearly to point to someone besides the one charged as the guilty party. State v. Stenson, 132 Wash.2d 668, 734-35, 940 P.2d 1239 (1997); State v. Briggs, 55 Wash.App. 44, 66, 776 P.2d 1347 (1989). The reason for requiring such a connection is to avoid situations where a defendant points to other suspects simply to divert suspicion from himself, where there is no real evidence to support the inference. See State v. Mak, 105 Wash.2d 692, 716-17, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986), overruled on other grounds, 123 Wash.2d 641, 870 P.2d 313 (1994). "[A] great many trial days might be consumed in the pursuit of inquiries which could not be expected to lead to any satisfactory conclusion." Mak, 105 Wash.2d at 717, 718 P.2d 407.
¶ 129 But these cases do not apply here. First, the State was not attempting to divert suspicion to a different victim or suspect; nor was the State trying to prove that the young men had seen Shannon rather than Tracy. Rather, the State used the photograph simply to question the reliability of the three young men, who thought they had seen Tracy Parker on the road the day after her murder, though it was only for 10 seconds and they were not even sure about the date.
¶ 130 We hold that the trial court did not abuse its discretion in admitting the Parker sisters' photograph and allowing the State to suggest that the three young men might have been mistaken in their identification of Tracy on the road on September 17.
Lord further contends that admission of this photograph invited the jurors to dismiss the three young men's testimonies, which the Ninth Circuit deemed critical in Lord v. Wood, 184 F.3d 1083 (9th Cir.1999). The Ninth Circuit ordered a new trial for Lord because defense counsel in the first trial failed to call, or interview, these three witnesses, who, if the jury had believed them, would have delivered "a serious blow" to the State's case. Lord, 184 F.3d at 1089.
E. Lord's Drug Use
¶ 131 Lord next argues that the trial court erred by admitting evidence of his drug use because it was irrelevant and highly prejudicial. This claim lacks merit.
¶ 132 Although the trial court improperly applied the law of the case doctrine in ruling this evidence admissible, we review this evidentiary decision in the context of the retrial. We hold that the trial court properly admitted Lord's drug use because it was relevant and the prejudice to him did not substantially outweigh its probative value. See ER 401, 403.
¶ 133 Wayne Frye testified that Lord and the other men who worked around his house had smoked marijuana and drunk alcohol in the days surrounding Tracy Parker's disappearance in September. Ray Magerstaedt, a detective with the Kitsap County Sheriff's Department, had interviewed Lord on September 30, 1986. During the interview, Lord told Magerstaedt that (1) he drank beer during the time surrounding Tracy Parker's disappearance; (2) he had last smoked marijuana approximately two weeks earlier, which would have been September 16, the day Tracy Parker disappeared; and (3) he becomes a different person and loses control when he uses marijuana and drinks at the same time. This evidence of Lord's loss of control when drinking and smoking marijuana, as he had at the time of Parker's death, was clearly relevant.
¶ 134 We hold that the trial court did not abuse its discretion by admitting this evidence.
F. Tom DeMars
1. Prior convictions
¶ 135 Lord also argues in his SAG that the trial court erred by preventing him from impeaching Tom DeMars with DeMars' prior convictions. We disagree.
¶ 136 Tom DeMars was convicted of third degree theft and criminal trespass in 1985; and second degree possession of stolen property, trespassing, and forgery in 1987. The trial court ruled that DeMars' prior convictions were not admissible under ER 609(a) or 609(b) because they were over ten years old.
ER 609(b) provides:
¶ 137 Lord argued that the convictions showed DeMars' potential bias to testify against Lord, because DeMars would have a "great incentive to curry favor with the police and prosecutors because of the nature of his repeat business with the system." RP Vol. 14 at 2089. Noting the lack of evidence that DeMars had received favorable treatment or any kind of deal, the trial court excluded DeMars' prior convictions because they were more than 10 years old and it found no compelling reason to admit the convictions. We find no abuse of discretion in this ruling.
2. Drug use
¶ 138 In his SAG, Lord also contends that the trial court erred by preventing his impeachment of DeMars with evidence of his drug use. We disagree.
¶ 139 A party may impeach the credibility of a witness with evidence of drug use at the time of the event in question, provided the party offering the evidence shows a connection between the drugs and the witness's credibility. State v. Russell, 125 Wash.2d 24, 83, 882 P.2d 747 (1994); State v. Renneberg, 83 Wash.2d 735, 737, 522 P.2d 835 (1974). Although drugs may affect the perception, recollection, or truthfulness of a witness, Division Three of this court affirmed the trial court's exclusion of evidence that a State's witness was on methadone at the time of trial because Dault had failed to show that using methadone affected his credibility. State v. Dault, 19 Wash.App. 709, 719-20, 578 P.2d 43 (1978), review denied, 93 Wash.2d 1030 (1980).
¶ 140 Lord argued here that DeMars would testify that long-term methamphetamine use has affected his memory and "fried his brain." The trial court ruled:
[I]f it's shown that he was under the influence of drugs at the time of the occurrence or the incident, or whatever time frame he's going to be questioned, the occurrence and time of testimony, those two, then it might come in, but there would have to be a hearing outside the presence of the jury as to that. The idea that he's a long-term drug user does not come in. It has to be specific to the time and place and the event itself.
RP Vol. 14 at 2094. The trial court also ruled that the defense could not introduce evidence of the long term effects of methamphetamine use without expert testimony.
¶ 141 Lord provided an offer of proof to show the relevance of DeMars' drug use. DeMars stated that in 1986 and 1987, he was smoking marijuana approximately every other day and ingesting methamphetamine approximately once a week. But DeMars testified that his drug use in 1986 and 1987, did not affect his ability to perceive what was going on, his ability to speak to Lord, his ability to remember what Lord said, his ability to testify in 1987, or his truthfulness. DeMars stated that he currently remembered his testimony from 1987, he remembered the events of 1986 and 1987, and drugs were not affecting his perceptions or ability to be truthful at this trial.
¶ 142 The trial court ruled that there must be a showing that the witness was using or influenced by drugs at the time of the occurrence or the time of testimony, and that was not shown here. We hold that the trial court properly excluded evidence of DeMars' drug use.
G. Susan Whitney's Testimony
¶ 143 Lord also claims in his SAG that the trial court erred in excluding testimony from Susan Whitney, the court clerk from the first trial. Whitney reportedly would have testified that, during Lord's first trial, "sealed items were unsealed by witnesses during the course of the trial, removed from bags, shown to jurors in the courtroom, and then placed back in the evidence bags but not re-sealed at the time that they went to the jury room." Clerk's Papers at 798.
¶ 144 The State moved to exclude Whitney's testimony because (1) it was highly unlikely that Whitney would have an individual recollection of what happened with some 400 exhibits in 1987; (2) Whitney's testimony was not relevant under ER 401 because it did not make a fact of consequence more or less likely; and (3) Whitney's testimony should be excluded under ER 403 because it is likely to mislead the jurors into believing that all exhibits were unsealed and remained unsealed, when many items were never opened during trial. The State argued that jurors in the current trial would be able to see if an item was not sealed; the condition of the evidence would be self-evident. Additionally, the State might not be able to complete the foundation necessary to admit an item if it were not properly sealed and accounted for.
¶ 145 Lord argued that part of the defense theory was that the wood chips contained DNA from Tracy Parker due to cross-contamination, which may have occurred during the handling of the evidence in the first trial. Lord expected that although Whitney was not in the jury room, she could have testified that the jurors were not given special instructions on handling the evidence and so they could have handled several items, transferring DNA from one item to the next.
¶ 146 The State responded that the jury could have opened and examined the exhibits, but the broken seals would have been apparent when the jury was finished with the evidence (i.e. the jury did not have evidence tape to reseal the envelopes). After the first trial was completed, the critical evidence, including the wood chips, went back to the laboratory. The laboratory noted upon receipt of the items that all of the exhibits were sealed.
¶ 147 After hearing these arguments, the trial court granted the State's motion to exclude Whitney's testimony. A reasonable person could find Whitney's testimony was not relevant under ER 401 because it did not tend to make any fact of consequence more or less likely. Whitney cannot testify about the handling of evidence in the jury room. The only thing she can testify to, if she has an independent recollection, is how evidence was handled in court. That information should be apparent to the jury from the status of the seal.
¶ 148 We hold, therefore, that the trial court did not abuse its discretion in excluding Whitney's testimony.
III. ASSISTANCE OF COUNSEL
¶ 149 Lord also argues that trial counsel rendered ineffective assistance. We disagree.
¶ 150 To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. Stenson, 132 Wash.2d at 705, 940 P.2d 1239. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).
¶ 151 We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).
A. Failure to Request Mistrial
¶ 152 Lord claims that defense counsel's performance was deficient because he failed to request a mistrial after the trial court allowed spectators to wear buttons bearing Tracy Parker's picture. As we discussed above, there was no showing of prejudice to Lord and the trial court did not err by permitting spectators to wear the buttons for the first three days of the thirty-one day trial. Therefore, counsel's performance was not deficient for failing to request a mistrial.
B. Failure to Object to Closing Argument
¶ 153 Lord next claims that defense counsel's performance was deficient because he failed to object when the prosecutor misstated the facts in evidence during closing argument.
¶ 154 In closing arguments, a prosecutor has wide latitude to draw reasonable inferences from the evidence and to express such inferences to the jury. Stenson, 132 Wash.2d at 727, 940 P.2d 1239. We view the allegedly improper statements within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003). Comments that encourage a jury to render a verdict on facts not in evidence are improper. State v. Stover, 67 Wash.App. 228, 230-31, 834 P.2d 671 (1992), review denied, 120 Wash.2d 1025, 847 P.2d 480 (1993).
¶ 155 Here, the prosecutor argued in rebuttal that Lord was asking the jury not to believe the testimony of witnesses who recalled the night in question, but to believe the witnesses who were recreating the evidence. The prosecutor then gave a few examples to illustrate her point. One such example pertained to the Carrolls' testimony about when they had arrived at Kirk's house on September 16. The prosecutor recalled Don Carroll's testimony that he expected Robin and Kirk to arrive home around 9:00 P.M. Don and his wife, Radwyn, wanted to get to Kirk's house at least 15 minutes early, so that they could have a fire going when Robin and Kirk arrived. The prosecutor then inferred that Don and Radwyn Carroll arrived at Kirk's residence at 8:45 P.M. The prosecutor contrasted that with Lord's witness who recalculated the time frame, placing the Carrolls at Kirk's residence at 8:05 P.M.
Don Carroll passed away two years Before this second trial, but the trial court admitted his testimony from the first trial.
¶ 156 Although there was differing testimony, the prosecutor's inference was not unreasonable. Don and Radwyn testified that they expected Robin and Kirk to get home at 9:00 P.M., so they went over to Kirk's house at about 8:30 P.M. to start a fire for them. Don and Radwyn testified that Lord pulled into the driveway at 8:35, according to the clock in the front room of Kirk's house. From that testimony, it is likely that Radwyn and Don were at Kirk's residence approximately 15 minutes earlier than the prosecutor's inference of 8:45. But Don Carroll also testified, "I've got 9:00 o'clock in my mind thinking about we've got to get over there and at least have 15, 20 minutes, because it's a two story house, get the fire going and get it warmed up." Exhibit G-43 at 2927. This passage could reasonably have lead the prosecutor to infer that the Carrolls arrived at Kirk's residence at 8:45. Therefore, it was a reasonable inference, permissible during closing argument.
¶ 157 But even assuming the prosecutor's argument was in error, defense counsel may have chosen not to object because doing so would have highlighted the State's calculation of the time frame. If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot be the basis for an ineffective assistance of counsel claim. State v. McNeal, 145 Wash.2d 352, 362, 37 P.3d 280 (2002). Such is the case here.
¶ 158 Moreover, Lord has failed to prove the prejudice prong of his ineffective assistance claim. Jury Instruction No. 1 cautioned the jurors that the attorneys' remarks, statements and arguments were not evidence, and they should disregard remarks the evidence did not support.
¶ 159 Lord has not shown that, but for the prosecutor's comment, the outcome of the trial would have differed. Therefore, Lord has failed to prove ineffective assistance of counsel.
IV. CUMULATIVE ERROR
¶ 160 Under the cumulative error doctrine, a defendant may be entitled to a new trial when the trial court's cumulative errors were fundamentally unfair. In re Personal Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835 (1994) (citing Walker v. Engle, 703 F.2d 959, 963 (6th Cir.1983)). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. Matter of Personal Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994). Where the defendant cannot show prejudicial error occurred, cumulative error cannot be said to have deprived the defendant of a fair trial. State v. Stevens, 58 Wash.App. 478, 498, 794 P.2d 38, review denied, 115 Wash.2d 1025, 802 P.2d 128 (1990).
¶ 161 Because Lord has not shown prejudicial error, this claim, too, fails.
¶ 162 Affirmed.
We concur: QUINN-BRINTNAL L, C.J., and VAN DEREN, J.
[T]he centrality of the evidence to the case and its importance in establishing the elements of the crime or the motive or intent of the defendant; the probative value and reliability of the secondary or substitute evidence; the nature and probable weight of factual inferences or other demonstrations and kinds of proof allegedly lost to the accused; the probable effect on the jury from absence of the evidence, including dangers of unfounded speculation and bias that might result to the defendant if adequate presentation of the case requires explanation about the missing evidence.
United States v. Tercero, 640 F.2d 190, 192-93 (9th Cir.1980).
(1) the handler was qualified by training and experience to use the dog, (2) the dog was adequately trained in tracking humans, (3) the dog has, in actual cases, been found by experience to be reliable in pursuing human track, (4) the dog was placed on track where circumstances indicated the guilty party to have been, and (5) the trail had not become so stale or contaminated as to be beyond the dog's competency to follow.
Loucks, 98 Wash.2d at 566, 656 P.2d 480.
Despite not having a sample of actual insects from the crime scene, Dr. Haskell testified that he was able to determine that Parker's remains had been infested with blowflies. He further testified,
With a reasonable degree of scientific certainty, based on my experience of working with hundreds of thousands of maggots and 20 years of experience, I was able to come to a conclusion that we didn't have anything any larger than second stage maggots. RP Vol. 29 at 4230. Then Dr. Haskell concluded, based on the growth speed of various species of blowflies, that the insects colonized Parker's body between September 18 and 24, 1986. Dr. Haskell opined that the most likely colonization dates were September 20 or 21. He also opined that insects would likely colonize on the date that a body appears outside. Dr. Haskell's testimony effectively called into question the timing of Parker's death, which the State argued was September 16, 1986. Thus, even assuming, without deciding, that the State somehow erred in failing to collect and preserve insect samples from Parker's body in 1986, Lord's expert was, nevertheless, able to simulate the results and explain them to the jury. Therefore, error, if any, was harmless.
We disagree. First, the Ninth Circuit opinion does not control this issue here. Second, and more importantly, Lord's 2002 retrial cured the defect the Ninth Circuit had identified in the original 1987 trial--namely the defense's failure to interview and to call the three young men as witnesses on Lord's behalf. The trial court's 2002 ruling struck a discretionary balance between allowing Lord to call his witnesses and allowing the State to question the accuracy of their perceptions, short of suggesting, however, that it was Shannon, not Tracy, they had seen.
Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.