No. 40742-2-I c/w 43911-1-I (Wash. Ct. App. Apr. 28, 2003)

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State v. Smiley

The Court of Appeals of Washington, Division One

Apr 28, 2003

No. 40742-2-I c/w 43911-1-I (Wash. Ct. App. Apr. 28, 2003)

Opinion

No. 40742-2-I c/w 43911-1-I

Filed: April 28, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 94-1-03702-8 Judgment or order under review Date filed: 05/13/1997

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

David L. Donnan, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.

Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

COX, A.C.J.

Eric Smiley appeals the judgment and sentence following his conviction of first degree murder. The giving of an erroneous accomplice liability instruction was harmless error beyond a reasonable doubt in this case. There was substantial evidence supporting his conviction. The trial court properly exercised its discretion in its evidentiary rulings, its other instructions, and its denial of Smiley's motion for a new trial. Moreover, there was no prejudicial violation of Smiley's constitutional right to confront witnesses. The reason for the exceptional sentence was `substantial and compelling.' Finally, the pro se arguments do not warrant reversal. Accordingly, we affirm.

A gunman shot and seriously wounded Officer Antonio Terry of the Seattle Police Department during the early morning hours of June 4, 1994. Officer Terry had stopped on the Swift and Albro off-ramp from the I-5 freeway in Seattle to assist four individuals whose Mustang had come to a stop on the shoulder of the off-ramp. At trial, the parties sharply disputed what took place after Officer Terry stopped. Earlier, Eric Smiley, drove around Seattle in his blue Mustang accompanied by Quentin Ervin, Ira Potts, and Jeremy McAllister. While driving south on Interstate 5, the Mustang malfunctioned and they coasted off the freeway, coming to a stop on the shoulder of the Swift and Albro exit. Ervin, Potts, and McAllister soon went to a nearby tavern to phone for help while Smiley remained in his car. After making the phone calls, the group headed back toward Smiley's car. Ervin stopped near the intersection and flagged down cars.

Officer Terry, wearing civilian clothes, drove by the Mustang in an unmarked car. Ervin then jumped out in front of the officer's car. According to Potts, the car stopped, and the driver stepped to the back of the car with a gun in his hand. Ervin and the driver then started arguing with each other. Potts then went to Smiley's Mustang and told Smiley that the driver pulled a gun on Ervin. Next, Potts saw Ervin pull a gun from his waistband and heard gunshots. Ervin then ran to Potts and Smiley who were hiding behind the Mustang, yelling that he got shot. Ervin continued running past the Mustang and into the bushes where McAllister was. Potts heard more gunshots as he went to help Ervin. Smiley eventually joined the group in the bushes. Potts testified that Smiley did not fire or hold the gun that Ervin pulled.

Smiley did not testify at trial. But a detective testified that Smiley stated in an interview that he took the gun from Ervin, fired, and threw the gun away. According to the defense, Smiley thought that the driver of the unmarked car was a gang member, and fired the gun in defense of himself and his friends. Officer Terry described the events differently to fellow officers as he lay wounded in the South Precinct police station following his encounter on the off-ramp. He said he was flagged down by a group of black men near a Mustang on the Swift and Albro off-ramp. He got out of the car and asked the men what was going on. One of the men replied, `It ain't nothing.' When Officer Terry saw that one of the men had his hands in his pockets, he realized something was wrong and said, `Hey this isn't worth it.' He then turned around to go back to his car, heard one of them yell, `Hey, he's a cop,' and was shot. Officer Terry drew his Chief revolver and fired several shots. He said that he thought it was `the tall one, the driver,' who shot him. The evidence established that Smiley was the driver of the car, and was the tallest of the men.

Officer Terry managed to get back to his car, drove to the parking lot of the South Precinct, and yelled to other officers that he'd been shot. Officer Mark Katzer, who was about to pull out of the parking lot, got out of his car and caught Officer Terry as he started to fall out of his car. Officer Terry then told Officer Katzer and others what had happened. A few hours later, Officer Terry died in the operating room from a .22 caliber bullet gunshot wound.

Originally, the State charged Smiley and Ervin with aggravated first degree murder, first degree attempted murder, and second degree felony murder. They were tried jointly. The jury found Ervin guilty of second degree felony murder, but did not reach a unanimous verdict as to Smiley. Accordingly, the trial court declared a mistrial as to Smiley only. The court sentenced Ervin to an exceptional sentence of 328 months.

The State refiled the same charges against Smiley. Prior to his second trial, Smiley moved to change venue, to sequester the jury, and to exclude as hearsay Officer Terry's statements to police officers at the South Precinct. The trial court denied these motions. The jury returned a guilty verdict of first degree murder. The court denied his motion for a new trial, and imposed an exceptional sentence of 400 months.

Smiley appeals the judgment on the jury verdict and the sentence in this second trial. Accomplice Liability Instruction

A jury found that Smiley committed first degree murder. At Smiley's trial, the court instructed the jury that:

A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:

(1) solicits, commands, encourages, or requests another person to commit the crime; or

(2) aids or agrees to aid another person in planning or committing a crime.

The word `aid' means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

Clerk's Papers at 1387, Court's Instruction 34.

This instruction mirrors the pattern jury accomplice instruction that our state supreme court held misstated the statutory requirements in State v. Roberts and State v. Cronin. The instruction allowed the jury to convict a defendant as an accomplice if he or she acted with knowledge that his or her actions would promote `a crime,' rather than `the crime.' As our state supreme court recently stated in State v. Brown:

142 Wn.2d 471, 509-13, 14 P.3d 713 (2000).

142 Wn.2d 568, 14 P.3d 752 (2000).

It is a misstatement of the law to instruct a jury that a person is an accomplice if he or she acts with knowledge that his or her actions will promote any crime. The Roberts and Cronin courts have held that for accomplice liability to attach, a defendant must not merely aid in any crime, but must knowingly aid in the commission of the specific crime charged.

State v. Brown, 147 Wn.2d 330, 338, 58 P.3d 889 (2002) (citing Roberts, 142 Wn.2d at 509-13; Cronin, 142 Wn.2d at 578-80).

The State incorrectly argues that Smiley waived this claim of error by not objecting to the erroneous instruction below. A party may assert error for the first time on appeal if it is a manifest error affecting a constitutional right. An instruction that relieves the State of the burden of proving every element of the crime beyond a reasonable doubt is such an error, and may be challenged for the first time on appeal. This is such an instruction.

RAP 2.5(a)(3).

State v. Stein, 144 Wn.2d 236, 240-41, 27 P.3d 184 (2001).

An erroneous jury instruction may be harmless if the reviewing court is convinced beyond a reasonable doubt that the error did not contribute to the verdict. In Brown, our state supreme court held that the use of a defective accomplice liability instruction may be harmless error under certain circumstances. In particular, the court held that when the evidence establishes that the defendant acted as a principal rather than an accomplice, the error is harmless.

Brown, 147 Wn.2d at 341 (citing Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).

Brown, 147 Wn.2d at 341, 343.

Harmless Error: One Crime

The State argues that there was no reasonable possibility that the jury might have mistakenly held Smiley responsible for his participation in some crime other than murder because he was only charged with that crime. Much of Smiley's argument does not truly address the `a crime' versus `the crime' issue discussed in recent accomplice liability jurisprudence. Rather he attempts to relitigate the standards for accomplice liability in Washington. Smiley's arguments focus on the fact that at trial, Smiley contested whether he had the specific intent to commit murder, and whether he had premeditated the crime. But in Washington, an accomplice need not share the principal's mental state. As our state supreme court stated in Roberts:

The accomplice liability statute requires only a mens rea of knowledge, and an actus reus of soliciting, commanding, encouraging, or requesting the commission of the crime, or aiding or agreeing to aid in the planning of the crime.

Roberts, 142 Wn.2d at 502 (citing RCW 9A.08.020(3)(a)).

The Court in Roberts specifically adhered to the holdings in State v. Davis and State v. Rice, stating, `an accomplice need not have knowledge of each element of the principal's crime in order to be convicted under RCW 9A.08.020. General knowledge of `the crime' is sufficient.'

State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984).

State v. Rice, 102 Wn.2d 120, 683 P.2d 199 (1984).

Roberts, 142 Wn.2d at 513.

After the supreme court decided Cronin and Roberts, this court reiterated the rule regarding accomplice liability in Washington in In re Personal Restraint of Sarausad. In Sarausad, the issue was:

109 Wn. App. 824, 836, 39 P.3d 308 (2001)

Presuming that the State presented substantial evidence from which the jury could find beyond a reasonable doubt that Sarausad knowingly facilitated a drive-by shooting, is that a sufficient basis to find him guilty as an accomplice to murder for the death of Fernandes, the attempted murders of Lam and Nguyen and the assault of Brent Mason? We conclude that it is. As the Roberts court observed, our Legislature intended to impose accomplice liability upon those having `the purpose to promote or facilitate the particular conduct that forms the basis for the charge' and not to impose such liability `for conduct that does not fall within this purpose.' The particular conduct that formed the basis for the charged crimes here was the drive-by shooting. The State had to prove that Sarausad knowingly facilitated the drive-by shooting; it did not have to prove that Sarausad knew that Ronquillo had formed the premeditated intent to kill rival gang members.

Sarausad, 109 Wn. App. at 837 (citations omitted).

Smiley's attempt to relitigate the standards for accomplice liability in Washington is unpersuasive, and his arguments have been repeatedly rejected by the courts of this state.

Here, there was no question that Officer Terry died. Thus, it is unclear why the State charged Smiley in the alternative with attempted first degree murder. Nevertheless, the only real difference in the elements between murder and attempted murder is the death of the victim.

Under the law of accomplice liability in Washington, if an individual had knowledge of the general crime of attempted murder, and solicited, commanded, encouraged, or requested another person to commit that crime, or aided or agreed to aid another person in planning or committing that crime, he would be guilty as an accomplice to murder if the victim died. For purposes of accomplice liability, attempted murder and the completed crime are both `the crime' under the Cronin/Roberts/Brown `a crime' versus `the crime' analysis.

This issue is more complicated as to the second degree felony murder charge, given that the felony murder rule for murders based on a predicate offense of assault was recently rejected by our supreme court in In re Personal Restraint of Andress. But this does not preclude a conclusion that the giving of the erroneous accomplice liability instruction was harmless error in this case.

147 Wn.2d 602, 613, 56 P.3d 981 (2002).

As stated above, an accomplice need not share the same mental state as the principal, but need only have general knowledge of the crime. Washington cases have tended to analyze this issue in terms of classes of crimes, e.g., robberies, assaults, homicides. But logically, whether the crimes fall under the same heading in the RCW is of less importance than whether the crimes are of the same general nature.

This view is supported by Sarausad, wherein we held that a defendant who knowingly participates as an accomplice to a drive-by shooting could be found guilty of murder. As this court held in Sarasaud, A rational trier of fact reasonably could base accomplice liability for a murder, an assault, or both, on its determination that an ordinary person would know that a drive-by shooting is likely to result in the death or injury of one or more people — and thereby infer that a given defendant who knowingly facilitated a drive-by shooting thereby knowingly facilitated the murder, attempted murders and assaults that resulted from the drive-by shooting.

Sarausad, 109 Wn. App. at 838.

How the crime is classified is not determinative. Rather, the determinative factor is the nature of the crime, and its logical consequences. There was only one crime on which the jury could have premised liability in this case: a shooting. And the evidence supports the view that Smiley had general knowledge of the nature of the crime. The erroneous accomplice liability instruction was therefore harmless beyond a reasonable doubt.

Harmless Error: Principal Liability

The State further argues that the error here was harmless because `there can be no doubt that Smiley acted as a principal in the murder of Officer Terry.' This argument directly contradicts the State's argument to the jury during closing when it stated: `We may never absolutely know who fired the fatal shot. But Mr. Smiley is also an accomplice to the acts done by Quentin Ervin.'

Second Supplemental Brief of Respondent at 3.

Report of Proceedings on March 18, 1997 (closing argument) at 16.

Nevertheless, review of the jury instructions given in this case persuades us that there can be no doubt that the jury found that Smiley acted as a principal in the murder of Officer Terry. Accordingly, the erroneous accomplice liability instruction was harmless beyond a reasonable doubt for a second reason.

Here, the jury was given the WPIC instruction on accomplice liability held to be defective in Cronin and Roberts. But the `to convict' instruction on the first degree murder charge differed significantly from the `to convict' instruction on the charge of second degree felony murder. Specifically, the first degree murder `to convict' instruction here provided:

To convict the defendant Eric Smiley of the crime of Murder in the First Degree, as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 4th day of June 1994, defendant Eric Smiley, together with another, assaulted Antonio Terry; (2) That the defendant acted with intent to cause the death of Antonio Terry; (3) That the intent to cause death was premeditated; (4) That Antonio Terry died as a result of the defendant's acts; and (5) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk's Papers at 1367, Court's Instruction 14 (italics ours).

On the other hand, the second degree murder (felony murder) instruction provided:

To convict defendant Eric Smiley of the alternative crime of Murder in the Second Degree, as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 4th day of June 1994, Antonio Terry was killed; (2) That the defendant was committing or attempting to commit Assault in the Second Degree; (3) That the defendant or an accomplice caused the death of Antonio Terry in the course of and in furtherance of such crime; (4) That Antonio Terry was not a participant in the crime; and (5) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk's Papers at 1380, Court's Instruction 27 (italics ours).

(Emphasis added). The second degree murder `to convict' instruction referenced accomplice liability, but the first degree murder `to convict' instruction did not.

The first degree murder `to convict' instruction states that to convict Smiley, the jury would have to find that Officer Terry died as a result of the `defendant's [Smiley's] acts.' In contrast, the second degree murder instruction states that to convict Smiley, it need only find that the defendant or an accomplice caused Terry's death. A reasonable juror reading these instructions together would conclude that if the jury found that Smiley caused the death of Officer Terry, he could be found guilty of first degree murder, assuming the other elements were proven. In contrast, a reasonable juror would also conclude that if either Smiley or an accomplice caused Officer Terry's death, Smiley could be found guilty of second degree murder, assuming the State proved the other elements. The jury's first degree murder verdict makes clear which choice it made. Accordingly, the instructional error on accomplice liability was harmless beyond a reasonable doubt because the jury's verdict indicates that it found Smiley guilty as a principal. Complete Defense The State also argues that the instructional error was harmless because Smiley presented a complete defense (self-defense) to the crime. In support of this contention, the State cites to State v. Borrero, wherein the court stated:

See Brown, 147 Wn.2d at 341-43 (instructional error harmless beyond a reasonable doubt when evidence establishes that defendant acted as the principal and was `as active as his co-defendant').

147 Wn.2d 353, 365, 58 P.3d 245 (2002).

Borrero's defense was that he was not present and was not involved with the kidnapping and attempted murder of Lemieux. If the jury found he was actually present, the testimony of Lemieux and Vaughn provides a sufficiency of the evidence to find Borrero liable as a principal for both charged crimes. There was no allegation that Borrero was assisting from afar. If the jury had believed that he was not present, Borrero's defense would have required an acquittal. In either event, the use of the improper article in the jury instruction would be immaterial. .

We note that only a plurality of four Justices concurred on this point. Two other Justices concurred in the result on the basis that the instructional error was harmless because the trial court `clarified' the defect in response to a jury inquiry, while the three remaining Justices dissented on the basis that the instructional error was not harmless.

Moreover, while self-defense is a complete defense if successful, a defendant could have an incomplete claim of self defense. For example, a jury could believe that a defendant acted in self defense, but that the force used was excessive. Or the jury could believe that the defendant initially acted in self-defense, but then became the aggressor once the threat was removed. Thus, while self-defense is a `complete defense,' it is different in nature than the defendant's defense in Borrerro, wherein the defendant claimed not to have participated in the crime at all. For these reasons, we decline to adopt this argument by the State. `A crime' vs. `the crime': other possible crimes

Smiley argues that the error was not harmless because the jury could have convicted him of the crime of first degree murder if it found that he was the accomplice to any other crime. Specifically, he contends that in this case, the jury could have convicted him of first degree murder because he was an accomplice to the crime of drug dealing. This argument is unpersuasive.

It would be a misstatement of the law to argue that the jury could convict Smiley as an accomplice to `the crime' of first degree murder merely because he had participated in any crime. Liability for murder cannot be based on mere participation in drug dealing. But there is nothing here to demonstrate that the jury premised its verdict on Smiley's alleged drug dealing.

There was no charge of delivery or possession of a controlled substance. And there was no instruction on the elements of, for example, either possession or delivery of a controlled substance. While there was a general reference that Smiley was a drug dealer, and that this was his motive for the murder, there was no real evidence or proof presented at trial of any drug dealing.

There was no suggestion at trial that Smiley acted as an accomplice to drug dealing, rather than as a principal. The prosecutor did not argue that the jury could convict Smiley of murder if they found that he had participated in drug dealing. Nor did the prosecutor even argue that Smiley was guilty of the crime of delivery of a controlled substance. For these reasons, it is simply not reasonable to conclude that this jury made such a leap of logic. Sufficiency of the Evidence Principal Liability Smiley contends that the evidence is insufficient on the charge of first degree murder as to Smiley as a principal. In reviewing the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In determining whether sufficient proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, only that substantial evidence supports the State's case. We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses. Under this standard, the evidence was clearly sufficient to support a conviction for Smiley as a principal. A person commits first degree murder when `with a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person.' `Premeditation' 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. Motive, procurement of a weapon, stealth, and method of killing are factors relevant to establish premeditation. The State presented evidence of premeditation. Smiley admitted to officers that he fired multiple shots from a semi-automatic pistol after getting the gun from Ervin. And there was evidence that Smiley procured the gun from Ervin. Contrary to Smiley's contention, the procurement of a weapon factor need not be established by evidence that Smiley brought the pistol to the off-ramp specifically to shoot Officer Terry. For example, in Gentry, our supreme court found that the fact that the defendant picked up a large rock at the scene to strike the victim's head indicated premeditation. Likewise, in State v. Sargent, the court found premeditation where killing was `not the result of a heated argument,' but the defendant had `sufficient time to pick up a weapon and deliver two separate blows' to the victim. Two jailhouse informants testified that Smiley told them in jail that he recognized Terry as a police officer at the off-ramp. Forensic evidence showed that Officer Terry was shot from behind. Christine Maupin testified that Officer Terry was shot when he was walking back to his car. And Officer Terry stated that he was turning to go back to his car when he was shot. This evidence supports a finding that Smiley acted with stealth and reveals a method of killing that supports an inference of premeditation. Significantly, there was evidence that Smiley was the shooter. Officer Terry told Officer Katzer that he thought it was `the tall one, the driver' who shot him. It is undisputed that Smiley was the driver, and at six feet four inches, the tallest of the four men in his car. And Maupin, who drove by when the shooting occurred, testified that Smiley shot Officer Terry in the back. Viewed in a light most favorable to the State, the evidence was sufficient for a rational trier of fact to conclude that Smiley had acted as the principal in the shooting, and caused the death of Officer Terry with premeditation. Accomplice Liability

See State v. Wren, Wn.2d, P.3d (March 3, 2003) (erroneous accomplice liability instruction on delivery of a controlled substance harmless beyond a reasonable doubt; because defendant committed crime of possession of a controlled substance alone, not with another, the possession did not constitute `a crime' committed by another person under the accomplice instruction).

See State v. Stovall, Wn.2d, P.3d (February 18, 2003) (erroneous accomplice liability instruction harmless even though jury was presented with evidence that defendant had committed another crime; prosecutor did not argue that the jury could convict defendant of delivery of cocaine merely because she possessed a crack pipe).

State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).

State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303, review denied, 119 Wn.2d 1003 (1992).

State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964, review denied, 135 Wn.2d 1015 (1998).

RCW 9A.32.030(1)(a).

State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995) (citations omitted).

State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).

Gentry, 125 Wn.2d at 600-01.

40 Wn. App. 340, 698 P.2d 598 (1985).

Sargent, 40 Wn. App. at 353.

State v. Ollens, 107 Wn.2d 848, 853, 733 P.2d 984 (1987) (evidence that victim was struck from behind indicative of premeditation); Sargent, 40 Wn. App. at 353 (defendant delivering two separate blows to the victim while she was lying down facing away from defendant indicative of premeditation).

As noted above, it is clear that the jury convicted Smiley as a principal rather than as an accomplice. The State did argue in the alternative that Smiley was an accomplice. But what was uncontested was that both Smiley and Ervin fired shots, and that one or more of those shots killed Officer Terry.

As this court held in State v. Haack, Although we agree with Haack that [the jury instructions], read together, would allow the jury to convict based on splitting the elements of the crime between Haack and his brother, such is not an incorrect statement of the law of accomplice liability. . . . Accomplice liability and principal liability are not alternative means of committing a crime. As long as there is sufficient evidence to support the giving of an accomplice instruction, jurors are not required to determine which participant acted as a principal and which acted as an accomplice. Jurors need only conclude unanimously that both the principal(s) and the accomplice(s) participated in the crime, but need not be unanimous as to the manner of that participation.

88 Wn. App. 423, 958 P.2d 1001 (1997), review denied, 134 Wn.2d 1016 (1998).

Haack, 88 Wn. App. at 427-28 (citations omitted).

And as stated above, the evidence was sufficient to convict Smiley as a principal. Smiley fired the gun two times. The evidence as to both intent and premeditation was far stronger as to Smiley than to Ervin. Smiley was the second shooter. Because the instructional error in the accomplice liability instruction was harmless, the jury was not required to determine whether it was Ervin or Smiley who fired the fatal shot. Assuming arguendo that it was Ervin who fired the fatal shot, the evidence was nonetheless sufficient to convict Smiley as either an accomplice or the principal.

Missing Witness Instruction

Smiley argues that the trial court erred in denying his request for a missing witness instruction as to McAllister. The trial court correctly denied the request.

When a party fails, without explanation, to call a witness they would naturally call if the witness's testimony would be favorable, the `missing witness' doctrine permits an inference that the uncalled witness's testimony would have been unfavorable. The doctrine does not permit the inference when (1) the witness is not peculiarly available to the party failing to call the witness; (2) the witness's testimony is unimportant or cumulative; or (3) the circumstances do not establish, as a matter of reasonable probability, that the State would not knowingly fail to call the witness in question unless the witness's testimony would be damaging. We review for abuse of discretion a court's decision regarding a missing witness inference.

State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991); State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968) (quoting Wright v. Safeway Stores, Inc., 7 Wn.2d 341, 346, 109 P.2d 542 (1941)).

Davis, 73 Wn.2d at 276-80; Blair, 117 Wn.2d at 488-90.

United States v. St. Michael's Credit Union, 880 F.2d 579, 597 (1st Cir. 1989); Harris v. United States, 430 A.2d 536 (1981).

The trial court denied Smiley's request for a missing witness instruction, in part, because it found McAllister not peculiarly available to the State. Because this was a tenable basis for the decision, we need only discuss this basis.

The missing witness instruction that Smiley sought states:

In this case, the defendants sought to call Jeremy McAllister as a witness in this matter. However, Mr. McAllister was unavailable to the defense as a witness. The State had the power to make Mr. McAllister available in their own case, but did not.

If a party does not produce the testimony of a witness who is within the control of or peculiarly available to that party and as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case. Supplemental Clerk's Papers at 2005.

The question of a witness being peculiarly available to a party does not mean that the witness is in court or is subject to the subpoena power:

For a witness to be [peculiarly] `available' to one party to an action, there must have been such a community of interest between the party and the witness, or the party must have so superior an opportunity for knowledge of a witness, it is reasonably probable that the witness would have been called to testify for such party except for the fact that his [or her] testimony would have been damaging.

Davis, 73 Wn.2d at 277.

Here, McAllister was one of the four men at the off-ramp where the shooting occurred. There is absolutely nothing here to show either that there was a community of interest between the State and McAllister or that the State had superior opportunity for knowledge of this witness. McAllister was not peculiarly available to the State.

We also note that Washington courts have held that the inference that a witness's testimony would be damaging is not proper where the testimony is privileged. Blair, 117 Wn.2d at 489; State v. Charlton, 90 Wn.2d 657, 661-63, 585 P.2d 142 (1978) (marital privilege); State v. Torres, 16 Wn. App. 254, 259-61, 554 P.2d 1069 (1976) (marital privilege). Other jurisdictions have specifically held that a witness's invocation of his or her Fifth Amendment privilege does not give rise to a missing witness instruction. Morrison v. United States, 365 F.2d 521, 524 (D.C. Cir. 1966); Alston v. U.S., 383 A.2d 307, 314 (D.C.App. 1978); People v. Saiz, 923 P.2d 197, 207-08 (Colo.App. 1995), cert. denied, 519 U.S. 1069 (1997); McDuffie v. State, 115 Md. App. 359, 693 A.2d 360, 363 (1997); State v. Dachtler, 318 N.W.2d 769, 774 (N.D. 1982). As discussed infra, McAllister's testimony is protected by the Fifth Amendment privilege against self-incrimination. Thus, an inference that his testimony would be damaging to the State is not warranted.

Smiley counters that because the State had the power to grant immunity to McAllister, he was peculiarly available to the State. We decline to consider this argument because it is unsupported by citation to authority. Right to Confront Witnesses Smiley argues that the trial court violated his right to confront McAllister by allowing him to assert his Fifth Amendment privilege against self-incrimination. We hold that the court did not abuse its discretion in allowing McAllister to assert his Fifth Amendment privilege with respect to events that occurred at the off-ramp or thereafter. Any error with respect to allowing assertion of the privilege for the events prior to those at the off-ramp were harmless beyond a reasonable doubt.

See RAP 10.3; State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990) (declining to review argument unsupported by authority); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (court will not consider an argument unsupported by authority).

Under the Washington Constitution and the Sixth Amendment to the United States Constitution, a criminal defendant has a constitutional right to compel attendance of witnesses at trial. Our supreme court has declined to interpret the state constitutional provision as conferring broader protection than its federal counterpart. Thus, the analysis is the same under both clauses.

U.S. Const. amend. 6 states in relevant part that '[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.' Const. art. I, § 22 (amend. 10) provides that '[I]n all criminal prosecutions, the accused shall have the right to meet the witnesses against him face to face.'

State v. Palomo, 113 Wn.2d 789, 794, 783 P.2d 575 (1989), cert. denied, 498 U.S. 826 (1990).

The right to confront witnesses is limited, however, by the Fifth Amendment's protection that no person ' `shall be compelled in any criminal case to be a witness against himself.'" When there is arguably a conflict between a witness's Fifth Amendment privilege and a defendant's Sixth Amendment right to compulsory process, such conflict is resolved in favor of the witness's right to silence. Once a witness waives the privilege and testifies as to some matters, the witness is then subject to cross-examination on questions germane to the direct examination. Once the privilege is invoked, the question becomes what the proper scope of the privilege is:

State v. Lougin, 50 Wn. App. 376, 379, 749 P.2d 173 (1988) (citing State v. Parker, 79 Wn.2d 326, 331, 485 P.2d 60 (1971); United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir. 1978) (the Sixth Amendment right to compulsory process does not include the right to compel a witness to waive the witness's Fifth Amendment privilege).

United States v. Cuthel, 903 F.2d 1381, 1384 (11th Cir. 1990) (citing Alford v. United States, 282 U.S. 687, 694, 75 L.Ed.2d 624, 51 S.Ct. 218 (1931)).

Lougin, 50 Wn. App. at 380 (citing State v. Morgan, 151 Wn. 306, 308-09, 275 P. 717 (1929)).

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim `must be governed as much by [her] personal perception of the peculiarities of the case as by the facts actually in evidence.'

State v. Hobble, 126 Wn.2d 283, 290, 892 P.2d 85 (1995) (quoting Seventh Elect Church v. Rogers, 34 Wn. App. 105, 114, 660 P.2d 280, review denied, 99 Wn.2d 1019 (1983)). See also Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) (In order to sustain the Fifth Amendment privilege, `it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.').

The witness `must establish a factual predicate from which the court can, by use of `reasonable judicial imagination' (aided by suggestions of counsel), conceive of a sound basis for the claim' of privilege. The answer need only furnish a link in the chain of evidence needed to prosecute the witness for a crime. The danger of incrimination must be substantial and real, not merely speculative. There is no blanket Fifth Amendment right to refuse to answer questions based on an assertion that any and all questions might tend to be incriminatory. The privilege must be claimed as to each question and the matter submitted to the court for its determination as to the validity of each claim. We review for abuse of discretion a trial court's determination of whether the privilege against self-incrimination applies.

Hobble, 126 Wn.2d at 290.

Hobble, 126 Wn.2d at 291; United States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) (the danger of incrimination confronted by defendant must be confronted by substantial and real, and not merely trifling or imaginary).

Eastham v. Arndt, 28 Wn. App. 524, 532, 624 P.2d 1159, review denied, 95 Wn.2d 1028 (1981); State v. Nelson, 65 Wn.2d 189, 197, 396 P.2d 540 (1964).

Estham, 28 Wn. App. at 532; United States v. Moore, 682 F.2d 853, 856 (9th Cir. 1982).

Lougin, 50 Wn. App. at 382.

Smiley first claims that the trial court erred by granting a `blanket privilege' allowing McAllister to refuse to answer any questions. This claim misstates the record.

After an in camera review of questions with McAllister and his counsel, the trial court returned to the courtroom and the following ensued:

[The Court:] Mr. McAllister, you are directed to answer those questions: [The Court:] Do you know Quentin Ervin? [McAllister:] Yes. [The Court:] Do you know Eric Smiley? [McAllister:] Yes. [The Court:] Do you know Coffy McAllister? [McAllister:] Yes. [The Court:] And do you know Betty Ervin? [McAllister:] Yes. [The Court:] As to all of the other questions that were asked, as I stated, the in camera hearing has provided the basis for the court to make the determination that there are legitimate Fifth Amendment concerns and that Mr. McAllister can assert the Fifth Amendment as to all other questions that were posed. Report of Proceedings on February 2, 1996 at 90-91.

At the 1996 trial of Ervin and Smiley, the trial court, out of the presence of the jury, required each question that defense counsel sought McAllister to answer to be put to him. To most, he responded by asserting a Fifth Amendment privilege. At this second trial for Smiley, he again sought McAllister's testimony. Smiley incorporated the arguments he made at the first trial and made no new arguments. The trial court incorporated into this record the briefing done in the first trial and reiterated its 1996 rulings.

Smiley also claims that the trial court erred by allowing McAllister to assert his Fifth Amendment privilege as to other questions relating to the events of the night in question. He claims there was no reasonable basis upon which to invoke the privilege. For purposes of our analysis, we look first to assertion of the privilege for events occurring at the off-ramp and thereafter. Here, aided by McAllister's counsel's suggestions, the trial court exercised `reasonable judicial imagination' in concluding that McAllister had a reasonable basis to invoke his Fifth Amendment privilege. Questions about what had occurred on the off-ramp could expose McAllister to the substantial risk of accomplice liability. He had been present at the scene of the fatal shooting and it was clear that at least two of his companions had fired shots. Moreover, Smiley had told the police that either Ervin or McAllister had handed the gun to him before it `went off.' Certainly, answers to questions concerning these events could furnish a link in the chain of evidence needed to prosecute an accomplice to murder. In short, this ruling was a proper exercise of discretion.

We next consider the assertion of the privilege for matters occurring before the incident at the off-ramp. Smiley argues that McAllister's claim of privilege to questions regarding his association with Smiley and Ervin before the shooting is unreasonable because the fear of the imposition of accomplice liability is tenuous. He points out that case law requires more than mere presence at the scene and knowledge of a crime. He also claims that theories of conspiracy are too attenuated to support sustaining the privilege. Finally, he asserts that claims of obstruction based on statements already given do not support assertion of the privilege for events preceding the shooting. .

See State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981) (for accomplice liability to attach, one must prove that defendant was `ready to assist' in the perpetration of the crime).

We review the trial court's determination for abuse of discretion. While there was arguably a tenable basis for the trial court's decision to allow assertion of the privilege as to questions directed to events prior to arriving at the off-ramp, we need not decide that question. Assuming, without deciding, that allowing assertion of the privilege for that period was incorrect, we hold that any error was harmless beyond a reasonable doubt.

A constitutional error is harmless if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result without the error. Here, any error in allowing McAllister to assert his Fifth Amendment privilege for this period was harmless beyond a reasonable doubt. The jury would have reached the same result if McAllister had testified regarding events occurring prior to the off-ramp. Smiley argues that McAllister's testimony was important to establish two things: that Officer Terry was the first person at the off-ramp to display a gun and that no one on the off-ramp said `he's a cop.' But these two claims do not relate to events prior to the off-ramp. In addition, Potts testified as to both of these claims. Eastham v. Arndt, a civil action for satisfaction of a judgment, is distinguishable. There, this court held that the judgment debtor failed to demonstrate a sufficient nexus between possible criminal prosecution and the questions propounded to him concerning his assets and liabilities in order to sustain a Fifth Amendment privilege claim:.

State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990).

28 Wn. App. 524, 624 P.2d 1159, review denied, 95 Wn.2d 1028 (1981).

We cannot say that the evaluation of the trial court was incorrect that the judgment debtor had not established that answering the questions created a real danger of incrimination. The incriminatory nature of an answer to the questions propounded is not evident from the implications of the questions in the setting in which they were asked.

Eastham, 28 Wn. App. at 535-36.

The criminal prosecution feared in Eastham involved investigation by the Treasury Department of the judgment debtor's stock transactions. The judgment debtor did not explain to the trial court at the in camera hearing how answering questions about his assets and liabilities would subject him to criminal prosecution. Here, there was the required explanation. And the other evidence at trial demonstrated that the outcome would not have been different.

Evidentiary Rulings

Smiley next argues that the trial court erred by refusing to introduce Ervin's statements to the police under ER 804(b)(3)'s exception to the hearsay rule for statements against penal interest. He argues that exclusion of the statements violated his Sixth Amendment right to compel attendance of witnesses. We hold there was no Sixth Amendment violation here.

The Sixth Amendment compulsory process clause does not confer on a criminal defendant an unfettered right to offer testimony that is inadmissible under standard rules of evidence. Rather, in exercising the right to present witnesses in his defense, a defendant must comply with established rules of procedure and evidence designed to ensure both fairness and reliability in the ascertainment of guilt and innocence. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. It is generally inadmissible unless it falls within an exception to the hearsay rule as provided by the evidence rules, other court rules, or statutes. ER 804(b)(3) creates an exception to the hearsay rule by allowing admission of a statement against interest where a declarant is unavailable:

Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

ER 801(c).

ER 802.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

ER 804(b)(3).

Three requirements must be satisfied in order to admit a hearsay statement into evidence under ER 804(b)(3): (1) the declarant must be unavailable; (2) the statement must tend to expose the declarant to criminal liability so that a reasonable person in the same position would not have made the statement unless convinced of its truth; and (3) there must be circumstances that corroborate the statement's trustworthiness. We review a trial court's evidentiary rulings for abuse of discretion. Smiley sought to admit, under ER 804(b)(3), Ervin's statements to the police that he fired shots at a man at the off-ramp. The trial court did not make a finding on Ervin's availability. But it concluded that the statements were not against penal interest, and that the circumstances surrounding the statements did not indicate their trustworthiness. Assuming, without deciding, that Ervin was unavailable, we hold that Smiley did not satisfy the second and third requirement for admission of Ervin's hearsay statements under ER 804(b)(3).

State v. Whelchel, 115 Wn.2d 708, 715-16, 801 P.2d 948 (1990).

State v. McDonald, 138 Wn.2d 680, 693, 981 P.2d 443 (1999).

The second requirement for admission of hearsay statements under ER 804(b)(3) — whether the statement tends to expose the declarant to criminal liability — is not satisfied here. The hearsay exception for statements against interest is generally limited to statements that the declarant knew to be against his or her interest at the time the statement was made. The test is an objective one but courts also look to the purpose of the statement and the motives of the declarant, particularly when it appears that the declarant was motivated by self-serving considerations. A statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. Ervin's tape-recorded statements that he fired at Officer Terry are contained in the following colloquy:

5C Karl B. Tegland, Washington Practice: Evidence Law and Practice, § 804.31 (4th ed. 1999).

Tegland, at sec. 804.32; see also State v. Rice, 120 Wn.2d 549, 565, 844 P.2d 416 (1993); Whelchel, 115 Wn.2d at 720-21; State v. St. Pierre, 111 Wn.2d 105, 117-18, 759 P.2d 383 (1988).

Whelchel, 115 Wn.2d at 717 (citing Fed.R.Evid. 804(b)(3) advisory committee note exception (3)).

[Det. Mixsell] And once he got out you're stating that he had the gun in his hand and pointed in which direction when he immediately exited the car? [Ervin:] It was like, he got out the car and he had it down on his side and then, that's when he, I seen him raising it and that's when I ran and I tried to pull mine and then that's when I got shot. [Det. Mixsell:] Were you able to get your gun out of its concealed place before you were shot? [Ervin:] No. [Det. Mixsell:] And where was the place you were keeping your concealed gun? [Ervin:] Like in my front in my pants in the front of my pants. [Det. Mixsell:] And once again, you were running away firing, is that correct? [Ervin:] Yes. [Det. Mixsell:] And the arm that you held the gun, the hand that you held the gun, it was pointed back towards the officer as you ran away, is that correct? [Ervin:] Yeah. [Det. Mixsell:] And where was the officer when you were firing the shots? [Ervin:] I don't know. I was just running, not, you know, not, I was just shooting like behind me. I wasn't like you know, I didn't turn around or nothing like that. I just was running like this you know trying to shoot hoping that he would stop firing you know so I wouldn't get hit no more. [Det. Mixsell:] Now once you got back towards the disabled Mustang did Eric come to meet you or did you meet Eric somewhere else? Behind the car, beside the car [Ervin:] No, I was running towards it, I was running towards the car and he got out and he came towards me and I'm like `I'm shot' and then he's like `give me the gun' and I gave him the gun and then Jeremy took me to the back and we sitting on the railing and he's like E, you're shot. [Det. Mixsell:] Where was Eric with the gun at this point? [Ervin:] He was, he could have been in the front of the car or in the back of the car. [Det. Mixsell:] You don't know where he was with the gun?] [Ervin:] Na uh. [Det. Mixsell:] And did you see him actually fire the gun? [Ervin:] No, I just heard the shots. [Det. Mixsell:] Was the sound of the shots consistent with your weapon, a .22 caliber? [Ervin:] Yeah. [Det. Mixsell:] It couldn't have been the officer firing anymore shots? [Ervin:] I don't, I don't think so. [Det. Mixsell:] So you're indicating that Eric was firing shots somewhere? [Ervin:] Yeah. [Det. Mixsell:] And nobody else would have had the gun but Eric? [Ervin:] Yeah, that was the person I gave it to.

Exhibit 98 at 4-6.

Here, the circumstances surrounding Ervin's statements that he fired shots at Officer Terry suggest they were self-serving and thus not against his penal interest. Ervin made the statements while he was in custody and knew that Officer Terry had died. Thus, he had a motive for putting his actions during the incident in the best light possible. And the statements that he fired blindly at Officer Terry clearly supports a claim for self-defense — he stated that he fired only after Officer Terry raised his gun and that he fired in an attempt to protect himself. Moreover, when viewed in context of his later statements that he handed the gun to Smiley who then fired more shots at Officer Terry, it becomes clear that the statements absolve or minimize Ervin's criminal liability while assigning a major criminal role to Smiley. Thus, Ervin's statements were not against his penal interest.

Whelchel, 115 Wn.2d at 720-21 (where police knew that the declarants were involved in murder, declarants had motive to lie and to put their own actions in the best light possible).

Whelchel, 115 Wn.2d at 719.

The third criterion, whether the statements were trustworthy, is also not satisfied because circumstances surrounding the statements do not corroborate their trustworthiness. Courts apply the nine Ryan factors to determine the reliability required of inculpatory statements under ER 804(b)(3):

State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).

(1) Whether the declarant had an apparent motive to lie; (2) whether the general character of the declarant suggests trustworthiness; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) whether the timing of the statements and the relationship between the declarant and the witness suggest trustworthiness; (6) whether the statements contained express assertions of past fact; (7) whether cross examination could not help to show the declarant's lack of knowledge; (8) whether the possibility of the declarant's recollection being faulty is remote; and (9) whether the circumstances surrounding the statements give no reason to suppose that the declarant misrepresented the defendant's involvement. The first and ninth are similar inquiries, and the discussion on whether Ervin's statements were against penal interest reveals that he had a motive to lie. The second factor weighs against admission since Ervin's general character does not suggest trustworthiness given his numerous conflicting statements to the police. The third factor, whether more than one person heard the statements, is largely irrelevant where the statements were tape-recorded. The fourth factor, whether the statements were made spontaneously, does not favor admission. Ervin made the statements in response to police interrogation and thus they were not spontaneous. The fifth factor requires an examination of the timing of the statements and the relationship between the declarant and the witness. The timing of Ervin's statements does not suggest trustworthiness as they were made after the police began investigating his role in Officer Terry's death. The statements also suggest untrustworthiness because they were made to the police rather than to someone with whom Ervin had a close relationship. The sixth factor, whether statements contained assertions of past fact, weighs against admission here because Ervin's statements contained numerous assertions of past fact. The seventh factor, whether cross-examination would not help show declarant's lack of knowledge, probably favors admission. Although Ervin was at the scene of the shooting, it is possible that cross-examination could have shown his lack of knowledge concerning some of the details of the shooting. Finally, the eighth factor, whether the possibility of the declarant's recollection being faulty is remote, favors admission of the statements since less than 24 hours elapsed between Ervin making the statements and the events at the off-ramp. In all, examination of the nine factors shows that six of them support exclusion of Ervin's statements. The trial court properly exercised its discretion by excluding them.

McDonald, 138 Wn.2d at 694.

Whelchel, 115 Wn.2d at 725; Rice, 120 Wn.2d at 569.

Whelchel, 115 Wn.2d at 722 (fact that declarant originally misled the police by filing missing person report when he knew victim died did not suggest trustworthiness); Rice, 120 Wn.2d at 567 (fact that declarant began by lying to police about his involvement in murder suggests a lack of trustworthiness).

Rice, 120 Wn.2d at 568.

Rice, 120 Wn.2d at 568 (declarant's statements were not spontaneous when made in response to detective's questions during interrogation); State v. Mitchell, 117 Wn.2d 521, 530-31, 817 P.2d 398 (1991), overruled on other grounds by State v. Dent, 123 Wn.2d 467, 485, 869 P.2d 392 (1994).

State v. Hutcheson, 62 Wn. App. 282, 295, 813 P.2d 1283 (1991), review denied, 118 Wn.2d 1020 (1992) (fact that statements were made before declarant was suspected of involvement in murder, and to a person with whom declarant had a trusting relationship weighs in favor of reliability); Rice, 120 Wn.2d at 568 (lack of close relationship between declarant and witness suggests unreliability of statement).

McDonald, 138 Wn.2d at 695.

Whelchel, 115 Wn.2d at 724.

McDonald, 138 Wn.2d at 694.

Whelchel, 115 Wn.2d at 725; Rice, 120 Wn.2d at 569.

Rice, 120 Wn.2d at 568.

McDonald, 138 Wn.2d at 695.

Whelchel, 115 Wn.2d at 724.

Smiley claims the trial court abused its discretion by allowing reference to the existence of a first trial but excluding the result of that trial. He asserts the alleged error unfairly prejudiced him because it led the jury to speculate, to his detriment, that his second trial was necessitated by mere technicality. We reject this claim as well.

Evidence that is not relevant is not admissible in a criminal trial. To be relevant, evidence must meet two requirements: (1) the evidence must have a tendency to prove or disprove a fact (probative value), and (2) that fact must be of consequence to the determination of the action, in the context of other facts and the applicable substantive law (materiality). The court may exclude relevant evidence if its probative value is `substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.' The trial court has wide discretion in balancing the probative value of evidence against its potentially prejudicial effect. We will not disturb a trial court's decision to exclude or admit evidence absent a manifest abuse of discretion.

ER 402.

ER 401; 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 401.3 (4th ed. 1999); State v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726 (1987).

ER 403.

State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984).

State v. Jones, 95 Wn.2d 616, 628, 628 P.2d 472 (1981).

The State moved to limit any reference to the first trial to the fact of the trial. Specifically, it sought to exclude any reference to the vote split among jurors in the first trial:

As this court well knows, ordinarily the parties would be precluded from mentioning at all the fact of a prior trial where usually we couch those things in terms of a prior hearing or a matter or disposition

I think, realistically speaking, with approximately 100 witnesses and the fact that I think the jury in large part will be aware that there was in fact a first trial if for no other reason than Mr. Ervin, who will be testifying in this trial, is going to show up here and he will be cross-examined with respect to his testimony at the first trial, it makes sense to allow mention of it. But the substance of the vote split or the fact that there was a mistrial declared is absolutely immaterial.

The defense ultimately elected not to call Ervin as a witness. See Report of Proceedings on March 10, 1997 at 5-6.

I don't believe that's fair to Mr. Smiley, to allow [the jurors] to hear [about the vote split of jurors in the first trial.] And to [say] that it was in fact a mistrial is simply an effort by the defense to say to the jurors[,] well, gee whiz, 12 other people couldn't agree, you shouldn't either. It has no relevance to this trial.

Report of Proceedings on October 8, 1996 at 9-10; Clerk's Papers at 399.

Counsel for Smiley agreed that evidence of the vote split was irrelevant, but sought to admit the fact that the jury was unable to convict Smiley in the first trial:

I agree that the vote split is irrelevant I agree the new jury should not hear anything about the vote split. They need to know that Mr. Smiley was not convicted, because we certainly don't want them to think oh, well, he's been convicted, there is some technicality we're all here on, and he's going to be convicted again. That would be wrong. So I think they're entitled to know that the jury was unable to reach a verdict in the last trial. So — and I agree that normally there is no reference to a prior trial. In the circumstances of this case that would simply be a charade.

The jury should be entitled to know there was a prior trial. They are likely to know that anyway.

Report of Proceedings on October 8, 1996 at 10-11 (italics ours).

In its ruling, the trial court allowed the parties to refer to the fact of a prior trial, as stipulated. But it prohibited the parties from disclosing that the jury was unable to reach a verdict in the first trial. Here, evidence of the outcome of Smiley's first trial did not meet the relevancy requirements of probative value and materiality. Evidence that the jury in Smiley's first trial did not reach a verdict does not tend to prove or disprove any fact that was of consequence in the second trial.

The trial court properly excluded this evidence. Citing State v. Quigg, Smiley claims that the outcome of the first trial was relevant `as background evidence' even if it did not play a part in the shooting incident. But Quigg is of no help. Quigg was a prosecution for rape of a child and child molestation. The court there held that a handwritten story by defendant, describing in detail the characters and the sexual acts the defendant allegedly committed, was relevant even though it played no part in the crimes charged. The Quigg court so concluded because elements of the story bore significant similarities to the events surrounding the charges and thus was relevant as to identification, course of conduct, intent, and motive. Here, regardless of whether the outcome of Smiley's first trial is characterized as `background evidence,' it is simply irrelevant. And Smiley cites no authority for the proposition that such evidence is relevant because of its potential to preempt any prejudicial speculation by the jury that Smiley was convicted but reversed on a technicality.

72 Wn. App. 828, 866 P.2d 655 (1994).

Quigg, 72 Wn. App. at 838-39.

Smiley also claims that, even if irrelevant, the outcome of his first trial was nonetheless admissible because the State `opened the door' to the fact of the first trial so that it would be unfair not to allow Smiley to introduce evidence of the result. We decline to consider this claim because it is raised for the first time on appeal.

See 5 K. Tegland, Evidence, sec. 85 at 241 (`the introduction of inadmissible evidence is often said to `open the door' to the introduction of normally inadmissible evidence to explain or contradict the initial evidence').

RAP 2.5(a).

Smiley next contends that the trial court abused its discretion in refusing to inform the jury of the degree of Ervin's murder conviction for Officer Terry's death after allowing the jury to be informed that Ervin was convicted. The trial court properly excluded evidence of the degree of Ervin's murder conviction. Smiley first argues that evidence of Ervin's second degree murder conviction was admissible under ER 609. But this argument misses the point because the record shows that the State never sought to impeach Ervin with his second degree murder conviction. Moreover, since Ervin never testified at Smiley's trial, any issue regarding the admissibility of Ervin's conviction under ER 609 to impeach him became moot. Here, Smiley argued below that if Ervin testified, he would seek to admit Ervin's second degree murder conviction and the sentence imposed under ER 609. The State countered that it would be prejudicial to allow such evidence because the jury would speculate about Smiley's case without knowing the evidence in Ervin's trial. The State also added that it would be in favor of excluding the fact that Ervin was convicted at all, but that it would be obvious to the jury that he was convicted given that he is in custody. The trial court then ruled that the jury should not be informed of Ervin's second degree murder conviction:

ER 609(a) states For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

The State said:

To allow in either the degree of murder of which Mr. Ervin was convicted or the sentence, would be very misleading and prejudicial. It would be misleading because it would suggest to the jury or communicate wrongly what potential penalties are faced by [Smiley].

In addition, but most important, it would be unfair because it would communicate to the jury something about the case against Mr. Ervin and potentially against Mr. Smiley, in that they would be left understandably wondering why murder two against Mr. Ervin, and they would not know and may not know the types of evidence that were admitted, that was admitted, at the first trial versus the second trial. It would allow them to speculate. It would allow them to draw conclusions with respect to the cases offered against each defendant. Report of Proceedings on February 13, 1997 at 122-24.

The prejudicial effect of allowing the jury to hear what the last jury found as to Mr. Ervin, far outweighs its probative value. The reason for that is that the jury had a very different case before it with very different facts. And there is no way for this jury to know that.

Therefore, referencing the degree that Mr. Ervin was convicted of is, I do not believe, appropriate.

Report of Proceedings on February 21, 1997 at 27.

As the above demonstrates, the State never sought to impeach Ervin through his conviction for the murder of Officer Terry. And contrary to Smiley's assertion, the trial court never ruled that the State could impeach Ervin with the murder conviction but without mention of the degree. Instead, the trial court undertook an ER 403 balancing and ruled that the prejudicial effect of informing the jury of Ervin's conviction outweighed its probative value. Finally, any issue regarding admissibility of Ervin's conviction under ER 609 became moot because Ervin never testified.

In State v. Alexis, 95 Wn.2d 15, 19, 621 P.2d 1269 (1980) (our supreme court held that a trial court exercising its discretion under ER 609(a)(1) must not only weigh the prejudicial effect of the prior conviction against the probative value of the evidence but must additionally consider and weigh the following factors: (1) the length of the defendant's criminal record; (2) remoteness of the prior conviction; (3) nature of the prior crime; (4) the age and circumstances of the defendant; (5) centrality of the credibility issue; and (6) the impeachment value of the prior crime. But because ER 609(a)(1) is not implicated, the trial court did not consider and weigh the above factors).

Citing two instances where the State allegedly attacked Ervin's character by referring to him as a `cop shooter', Smiley argues the issue is not moot because he was then entitled `to place that information in context by informing the jury he was only convicted of second degree murder.' But the record does not support Smiley's claim that the State twice attacked Ervin's character at trial by referring to him as a cop shooter. Instead, the record shows that the State only asked a defense investigator whether she was aware of Ervin's prior felony convictions in an attempt to impeach her testimony that Ervin was a `sweet kid.' The other instance involved the State arguing at closing that a jailhouse informant who testified as to what Smiley told him in jail initially denied to defense investigator that he had conversations with Smiley because he didn't want to face `cop shooters' as a snitch. Smiley did not object to this fleeting reference, and so has waived the issue on appeal. Moreover, ER 609 is `concerned only with the use of the witness's convictions for impeachment.' As stated above, Ervin was not a witness at trial. And Smiley has not cited any authority allowing admission of conviction under ER 609 for someone other than a witness.

Brief of Appellant at 85.

5A, Karl B. Tegland, Washington Practice sec. 609.2 (4th ed. 1999).

Smiley next argues that Ervin's second degree murder conviction was admissible under ER 402 because it was relevant. But such evidence has no bearing on any fact that is of consequence to Smiley's guilt or innocence at a second trial with different evidence. Moreover, even if Ervin's conviction was relevant, the trial court has broad discretion in balancing the probative value of such evidence against its possible prejudicial impact under ER 403. The trial court undertook that balancing here and found that the prejudicial impact outweighed probative value. The evidence could have confused the jury or caused them to extrapolate on Smiley's culpability without knowing the evidence at the first trial. In sum, we conclude that the trial court did not abuse its discretion in refusing to admit evidence of Ervin's conviction for second degree murder. Smiley argues that the trial court abused its discretion in admitting testimony concerning Smiley's post-arrest threat against a witness. We again disagree. John Springfield was incarcerated with Smiley on the 11th floor of the King County Jail in June and July of 1996, and spoke on an almost daily basis with Smiley. Springfield was transferred to prison in July of 1996, and was interviewed by the defense in August of 1996. At that time, he contradicted a jailhouse informant who had claimed that Smiley had confessed to the crime. In December of 1996, Springfield was transferred back to King County for a restitution hearing. On December 11, he was in a holding cell next to Smiley. According to Springfield, Smiley saw him, called him by his name, and said, `You're dead.' Springfield immediately told the officer transporting him about this threat, then told a counselor at the jail who recommended he tell the prosecutor. Springfield did tell the prosecutor, and also disclosed for the first time that he, like the other jailhouse informant, had also heard Smiley confess to killing Officer Terry.

Coe, 101 Wn.2d at 782.

The trial court allowed testimony about Smiley's threat to Springfield over defense objection. Admissibility of evidence of post-arrest threats is analyzed under ER 404(b), which provides:

State v. McGhee, 57 Wn. App. 457, 460, 788 P.2d 603, review denied, 115 Wn.2d 1013 (1990).

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show [that he acted] in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The party offering evidence of other wrongs under ER 404(b) bears the burden of proving by a preponderance of the evidence that the misconduct occurred. If the trial court finds that the misconduct occurred, it must then determine whether it's relevant, and if so, whether its probative values is outweighed by its potential for prejudice. We review a trial court's decision to admit evidence under ER 404(b) for abuse of discretion.

State v. Benn, 120 Wn.2d 631, 653, 845 P.2d 289, cert. denied, 510 U.S. 944 (1993).

McGhee, 57 Wn. App. at 461-62.

State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).

After holding a hearing outside the presence of the jury on the admissibility of Smiley's threat, the trial court concluded:

As to whether or not the State has carried its burden of proving by a preponderance of the evidence that the prior misconduct occurred, because Mr. Springfield indicated to Correction Officer Lamuth [sic] that a statement had been made contemporaneously with — and by that I mean when they were, as I understand it, near the 12th floor courtroom or just exiting near the 12th floor courtroom, because of that statement made contemporaneously at that time, I think the State has carried its burden of proving that the alleged misconduct, by a preponderance of the evidence, occurred.

The issue, then, is whether or not it's relevant under [State v. McGhee]. The evidence would be relevant for the reasons stated in that opinion. And the question of whether or not the probative value outweighs the possibility of unfair prejudice, again, under [State v. McGhee], the evidence is evidence that should properly be admitted for the jury's consideration in making a determination as to what they believe as to the witness and what the witness is testifying to.

Mr. Springfield is someone who certainly has issues concerning credibility and whether or not the jury determines what he says to be true or not is certainly up to the trier of fact in this instance, the jury, to make a determination. Therefore, I will allow the State to admit, through Mr. Springfield — and as I understand, it's Mr. Springfield only — the alleged statement of Mr. Smiley.

Report of Proceedings on January 27, 1997 at 4-5.

Here, the trial court properly admitted testimony of Smiley's threat to Springfield. First, the trial court found that it was more likely than not that Smiley made the threat. Springfield testified that as he was being removed from a holding cell in the courthouse and handcuffed by Officer Paul Lemothe, he heard a rattling or banging noise. He turned and saw Smiley sitting in the adjacent cell looking directly at him. Springfield then testified that he heard Smiley say, `You're dead, Springfield.' The testimony established that the cell doors are made of thick metal, but they contain a small window, and there is a three-quarter inch opening at the bottom of the cell door and normal cracks around the door frame. And as soon as he left the secured area, Springfield reported the threat to Officer Lemothe and then to his attorney and the prosecutor once he arrived at the courtroom. Given that the trial court was in the best position to make a credibility determination, the court was within its discretion in finding that, more likely than not, Smiley threatened Springfield. Contrary to Smiley's claim, Officer Lemothe's testimony did not contradict that of Springfield's. Although Officer Lemothe did not hear the threat, he testified that he left Springfield standing in front of the holding cell for 15-20 seconds while he returned the keys to an office more than 36 feet away. Moreover, he admitted that he would not have heard the threat from where he was. Second, evidence of the threat was relevant. Evidence that a defendant has threatened a witness in order to influence testimony is generally relevant to show guilty knowledge. Here, Smiley directed the threat to a potential witness against him during the course of his trial. This suggests guilty knowledge. The trial court properly determined the threat relevant. Third, the trial court did not abuse its discretion in determining that the probative value of the threat was not outweighed by its potential for unfair prejudice. Contrary to Smiley's arguments, evidence of the threat did not suggest that Smiley was `the type of character who would murder Terry with premeditation or intent.' In support of this contention, Smiley relies on two federal cases, United States v. Weir and United States v. Check, that criticized admission of the defendant's death threats. As a preliminary matter, we note that these cases interpreted Federal Rule of Evidence 403, not the corresponding Washington rule, although the two rules contain identical provisions. Washington courts have on occasion found the federal interpretation of an identical federal rule to be persuasive. On the other hand, federal case law interpreting a federal rule is not binding on this court even where the rule is identical, and Washington courts are the final authority on interpretation of state evidence rules. As noted above, Washington courts have held that under ER 403 and 404(b), `evidence that a defendant threatened a witness is normally admissible to imply guilt.' Further, other federal cases have permitted such evidence, demonstrating that there is no general rule against such evidence, even in federal courts. Weir is distinguishable on its facts. In Weir, a prosecution for bank robbery, the testimony at issue described defendant pointing a pistol and threatening to kill a government witness and an actual attempt to kill a suspected informant that resulted in the informant being shot in the arm.

In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). (an appellate court is not entitled to weigh either the evidence or the credibility of witnesses even though the reviewing court may disagree with the trial court; this is because the trial court has the witnesses before it and is able to observe them and their demeanor upon the witness stand).

State v. Bourgeois, 82 Wn. App. 314, 319, 917 P.2d 1101 (1996), rev'd on other grounds, 133 Wn.2d 389 (1997); McGhee, 57 Wn. App. at 461.

Brief of Appellant at 94.

575 F.2d 668 (8th Cir. 1978).

582 F.2d 668 (2nd Cir. 1978).

See, e.g., State v. Land, 121 Wn.2d 494, 497-99, 851 P.2d 678 (1993); State v. Terrovona, 105 Wn.2d 632, 639-41, 716 P.2d 295 (1986).

State v. Brown, 113 Wn.2d 520, 548, 782 P.2d 1013, 787 P.2d 906 (1989),

Bourgeois, 133 Wn.2d at 400.

See, e.g., United States v. DeAngelo, 13 F.3d 1228, 1231-32, (8th Cir.), cert. denied, 512 U.S. 1224 (1994); United States v. Cirillo, 468 F.2d 1233, 1240 (2nd Cir. 1972), cert. denied, 410 U.S. 989 (1973).

In finding that the prejudicial effect of this evidence outweighed its probative value, the court concluded:

The testimony suggested that appellants be convicted of bank robbery because they were bad men who had threatened to kill or attempted to kill law enforcement agents or informers. Indeed, the Assistant United States Attorney's statements in closing argument that appellants were dangerous, ruthless people and that a verdict of acquittal would turn the streets over to them appear to be calculated to enhance the effect of the `other crimes' evidence on the jury in suggesting an improper basis for a verdict of guilty, and these statements contribute to the balance of unfair prejudice resulting from the admission of the `other crimes' evidence.

Weir, 575 F.2d at 671.

Here, the threat evidence was much less prejudicial as it did not involve any violent action by Smiley. Moreover, the State did not mention Smiley's threat in its closing.

In Check, the threat evidence was comprised of defendant telling an undercover officer during the course of negotiating for a narcotics sale that `if he had any problems with anyone he wouldn't hesitate to shoot them.' While the court expressed disapproval of the testimony, the court reversed on other grounds. This portion of Check is merely dicta. Moreover, the threat here was much more probative and relevant than the threat at issue in Check. The threat in Check was made before the defendant was arrested, had little if any bearing on consciousness of guilt, and tended to show that the defendant was ruthless and dangerous.

Check, 582 F.2d at 685.

In contrast, the threat here was made after Smiley's arrest, to a potential witness to a confession, and could be construed as an attempt to intimidate and/or influence the testimony of the witness. The testimony was therefore highly probative of Smiley's consciousness of guilt. The trial court here properly weighed the potential for unfair prejudice against the probative value of the testimony, and did not abuse its discretion in admitting the evidence of the threat to Springfield. Motion for New Trial

Smiley claims that the trial court abused its discretion in denying his motion for a new trial based on alleged new evidence that State witness David Carpenter received payments from Crime Stoppers for his testimony in Smiley's trial as well as in two prior homicide trials. This claim is unpersuasive.

CrR 7.8(b)(2) permits a trial court to grant a new trial because of newly discovered evidence. A trial court, in ruling on a motion for a new trial based on newly discovered evidence, must find that the evidence (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before the trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. The absence of any one of the five factors is grounds for the denial of a new trial. A trial court's decision granting a new trial will not be disturbed on appeal unless it is predicated on an erroneous interpretation of the law or constitutes an abuse of discretion. The jury returned its guilty verdict on April 8, 1997. More than a year later, Smiley moved for a new trial based on alleged newly discovered evidence that Carpenter obtained payment from Crime Stoppers for information he had provided to it in Smiley's case as well as two other unrelated homicide cases. Crime Stoppers is a privately funded organization governed by a civilian board of directors that determines whether monetary rewards will be given for information regarding crimes. Crime Stoppers is not a law enforcement agency and it does not pay for testimony. Its payment records are not shared with police agencies.

CrR 7.8(b) provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.6[.]

State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996).

Macon, 128 Wn.2d at 800.

State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989).

The trial court here entered findings of fact and conclusions of law in its decision denying Smiley's motion for a new trial. Smiley assigns error to some of the findings and conclusions. A reviewing court affirms the trial court's findings, as long as the findings are supported by substantial evidence in the record. Disputed evidence is deemed `substantial' if it presents any reasonable view that substantiates the trial court's findings, even though there may be other reasonable interpretations. Unchallenged findings are verities on appeal. Smiley fails to show that the evidence of Carpenter obtaining payment from Crime Stoppers was not cumulative or impeaching. Here, there was substantial evidence to support the trial court's finding that the newly discovered evidence was cumulative and impeaching. As Smiley admits in his brief, evidence of Carpenter seeking and receiving payments from Crime Stoppers `was crucial to the jury's full and fair evaluation of his credibility.' As impeachment evidence of Carpenter's credibility, it cannot serve as the basis for a new trial. The impeachment evidence was also cumulative given the fact Carpenter was effectively impeached at trial by introduction of his extensive criminal background and numerous inmates who testified that they never heard Smiley discuss his case with Carpenter or anyone else. Smiley likewise fails to show that the newly discovered evidence was material. There is substantial evidence to support the trial court's finding that the evidence was not material because Carpenter's testimony went primarily to the aggravating factor that Smiley knew Terry was a police officer. And since the jury did not find that the State proved the aggravating factor, Carpenter's testimony was not material to the outcome. And contrary to Smiley's argument, Carpenter's testimony was not material to prove Smiley's premeditation because there was extensive evidence of premeditation apart from Carpenter's testimony as discussed in a prior portion of this opinion.

State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).

Fred Hutchinson Cancer Research Center v. Holman, 107 Wn.2d 693, 713, 732 P.2d 974 (1987).

State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).

State v. Hutcheson, 62 Wn. App. 282, 300, 813 P.2d 1283 (1991), review denied, 118 Wn.2d 1020 (1992) (a new trial should not be granted when the only purpose of the new evidence is to impeach testimony presented at trial).

Finally, the newly discovered evidence would not have affected the jury's verdict. The State did not rely heavily on Carpenter's testimony and in fact acknowledge his credibility problems. Moreover, Carpenter was impeached with other evidence.

Sentencing

At sentencing, the State sought an exceptional sentence of 694 months in prison (twice the high end of the standard range) based on several grounds, each of which the sentencing court rejected. Instead, the sentencing court imposed an exceptional sentence of 400 months based solely on the fact that Smiley had violated the conditions of his release pending appeal in another, unrelated case by possessing a firearm. Smiley argues that this violation did not justify an exceptional sentence. We disagree.

Report of Proceedings on May 9, 1997 at 61-62.

A trial court may impose a sentence outside the standard range if it finds `substantial and compelling reasons' to do so. We may reverse an exceptional sentence only if (1) the trial court's reasons for imposing the exceptional sentence are not supported by the record; (2) as a matter of law, those reasons do not justify an exceptional sentence; or (3) the sentence imposed is clearly excessive or clearly too lenient. The second prong, whether factual findings justify an exceptional sentence, is a legal issue. We review that de novo. The Grewe test governs this inquiry:

RCW 9.94A.120(2).

RCW 9.94A.210(4); State v. Alexander, 125 Wn.2d 717, 722, 888 P.2d 1169 (1995).

State v. Allert, 117 Wn.2d 156, 163, 815 P.2d 752 (1991).

first, did the Legislature necessarily consider the aggravating factor in establishing the standard sentencing range, and second, is the aggravating factor sufficiently substantial and compelling to distinguish the crime in question from others in the same category?

State v. Smith, 123 Wn.2d 51, 57, 864 P.2d 1371 (1993) (citing Grewe, 117 Wn.2d at 215-16).

Smiley challenges his exceptional sentence only on the second factor. Thus, the inquiry is whether, as a matter of law, his status as a convicted felon released pending appeal and his violation of the firearm prohibition contained in the conditions of his release justified a departure from the standard range. The standard range for Smiley's conviction was 261-347 months. The trial court imposed an exceptional sentence of 400 months and entered written findings and conclusions. Here, Smiley concedes that '[t]here is no reason to believe the Legislature considered [a person's supervised appeal status and accompanying firearm prohibition as a condition of that status] in setting the standard range [for first degree murder].' But he contends that the fact that he was on supervised appeal status and had violated the firearm prohibition when he committed this crime is not substantial and compelling to distinguish this crime from others in the same category. We reject this contention.

In its oral decision, the trial court stated:

I am going to impose an exceptional sentence of 400 months based on the substantial and compelling circumstances of the conditions of release pending appeal.

The conditions of release pending appeal are clear. There was to be no possession of a firearm. The jury's verdict is also clear. And the facts of the case are also clear that Mr. Smiley was armed with a gun at the time that this occurred.
[O]n this basis and on this basis alone, I am imposing an exceptional sentence of 400 months for the reason stated and based on the case law of State v. George. Report of Proceedings on May 9, 1997 at 62.
The trial court also entered the following conclusions of law:
4. The fact that at the time of the offense the defendant was on supervised appeal status as a result of his conviction on March 12, 1993, for Violation of the Uniform Firearms Act, King County Case No. 92-1-04735-3, makes the defendant a significantly different offender than one who comes before the Court similarly convicted of Murder in the First Degree.
The commission of this crime while on supervised appeal status `indicates a greater disregard for the law than otherwise would be the case.' State v. George [citation omitted]. Failure to take into account the defendant's supervised appeal status would frustrate the purpose of the SRA.
5. The fact that at the time of the offense the defendant was on supervised appeal status as a result of his conviction is a substantial and compelling reason and justification for imposing an exceptional sentence herein. [citation omitted].
6. The Court incorporates by reference herein it[s] oral decision. Clerk's Papers at 2292.

Brief of Appellant at 134.

In State v. George, this court held that a defendant's status as a parolee may be considered an aggravating factor justifying an exceptional sentence because '[t]he fact that additional crimes are committed while on parole indicates a greater disregard for the law than otherwise would be the case.' Although Smiley was not on parole, by committing first degree murder while on conditions of release after conviction of another crime, he has shown a greater disregard for the law. Moreover, the fact that he committed the present crime using a firearm, in direct violation of a condition of his release, further supports his clear disregard for the law.

67 Wn. App. 217, 834 P.2d 664 (1992), review denied, 120 Wn.2d 1023 (1993).

George, 67 Wn. App. at 224.

These factors are sufficiently substantial and compelling to justify his exceptional sentence. Pro Se Arguments Smiley argues that the instructions on premeditation and intent were insufficient in that they do not clarify the difference between the two concepts. Smiley asserts that the lack of clarification prevented him from arguing the absence of premeditation. We need not consider this issue as it was not preserved for review. Smiley's objection at trial to the premeditation and intent instructions that he now challenges was stated as follows:

Instruction No. 15, the defense has submitted a number of instructions for premeditation. Defense incorporates those arguments and considers this instruction to be incomplete. Instruction No. 16, no objection, except in that the defense believes it to be unnecessary.

The Court's Instruction No. 15 pertained to premeditation and states:

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

The Court's Instruction No. 16 pertained to intent and states: A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.

The Court's Instruction No. 15 pertained to premeditation and states:

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

The Court's Instruction No. 16 pertained to intent and states: A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.

The above objections failed to comply with CrR 6.15(c), which requires timely and well-stated objections be made to jury instructions given or refused `in order that the trial court may have the opportunity to correct any error.' Where the defendant did not offer an instruction and no objection was made, no error can be predicated on the failure of the trial court to give an instruction, except if the error is of a constitutional magnitude.

CrR 6.15(c) states in part: The court shall afford to counsel an opportunity in the absence of the jury to object to the giving of any instructions and the refusal to give a requested instruction or submission of a verdict or special finding form.
The party objecting shall state the reasons for the objection, specifying the number, paragraph, and particular part of the instruction to be given or refused.

State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988).

State v. Parker, 97 Wn.2d 737, 742, 649 P.2d 637 (1982); Scott, 110 Wn.2d at 686.

Here, Smiley did not argue below, as he does here, that the intent and premeditation instructions were confusing in that the jury could not distinguish between the two concepts. Thus, we will not consider this new argument.

Smiley also claims that the trial court abused its discretion in admitting Officer Terry's statements as he lay wounded outside the precinct station under the excited utterance exception to the hearsay rule. This argument is wholly unpersuasive.

Under ER 803(a)(2), an excited utterance is a `statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.' A hearsay statement qualifies as an excited utterance under ER 803(a)(2) if (1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition. The key determinant of admissibility is `whether the statement was made while the declarant was still under the influence of the event to the extent that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.' The hallmark of the exception is spontaneity. Determining whether a statement qualifies as an excited utterance is a fact-specific inquiry.

State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000).

Brown, 127 Wn.2d at 758.

State v. Dixon, 37 Wn. App. 867, 873, 684 P.2d 725 (1984).

Brown, 127 Wn.2d at 757.

The facts here support the trial court's decision to admit the statement as an excited utterance. Getting shot during an unexpected gun battle in the night was a startling event experienced by Officer Terry. Smiley counters that this violent crime was not a startling event because the startling nature of the event must be considered from Officer Terry's point of view. And as a police officer trained to stay calm, Smiley argues that the event could not have been startling to Officer Terry. Officer Terry was shot. Shortly thereafter, he was in shock. We need not discuss further whether getting shot is a startling event, whether or not one has training in staying calm.

State v. Chapin, 118 Wn.2d 681, 687, 826 P.2d 194 (1992) (what makes an event startling is its effect upon those perceiving it, and an event might be startling to some but not to others, thus for purposes of the excited utterance exception, focus is on event's effect on the declarant); State v. Majors, 82 Wn. App. 843, 848, 919 P.2d 1258 (1996) (statement to officer admissible when it occurred 20 minutes after crime and victim was young and appeared shaken, even though in those 20 minutes, she had opportunity to talk to several other people about the event in question), review denied, 130 Wn.2d 1024 (1997); State v. Guizzotti, 60 Wn. App. 289, 296, 803 P.2d 808 (rape victim's statement admissible although made more than seven hours after rape, where she hid under tarp for that time period and feared for her life), review denied, 116 Wn.2d 1026 (1991).

Smiley mistakenly relies on Brown v. Spokane County Fire Protect. Dist. No. 1, for the proposition that a trained firefighter would not find being in a burning building a startling event. That case held unremarkably that a firefighter's taped statement about a fire truck accident was not an excited utterance because it was made 30 to 40 minutes after the accident. Officer Terry also made the statement while still under the stress of the event. The crucial question here is whether the declarant was still under the influence of the event so as to preclude fabrication, intervening influences, or the exercise of choice or judgment. Here, Officer Terry made the statements less than five minutes after he was shot. He was in a great deal of pain when he made the statements. He was also bleeding internally, and had difficulty breathing at times.

100 Wn.2d 188, 195-96, 668 P.2d 571 (1983).

Brown, 100 Wn.2d at 195.

State v. Bryant, 65 Wn. App. 428, 433, 828 P.2d 1121, review denied, 119 Wn.2d 1015 (1992) (citing Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)).

Chapin, 118 Wn.2d at 688 (as the time between the event and the statement lengthens, the opportunity for reflective thought arises and the danger of fabrication increases).

Smith v. Fairman, 862 F.2d 630, 636 (7th Cir. 1988), cert. denied, 490 U.S. 1008 (1989) (`physical factors such as pain may serve to prolong the period in which the risk of fabrication is reduced to an acceptable minimum').

The paramedic who first assisted Officer Terry testified that he was somewhat in shock shortly after he was transferred to an ambulance. These circumstances indicate that Officer Terry was still under the stress or excitement of the shooting when he made the statements to the other police officers at the precinct. Finally, Smiley does not dispute the third prong of the excited utterance test — that Officer Terry's statements relate to the shooting. The trial court properly admitted his statements as excited utterances.

Webb v. Lane, 922 F.2d 390, 393-94 (7th Cir. 1991) (holding that victim's statements identifying assailant made within two hours after he was shot six times in chest and abdomen were made under the shock and excitement of the shooting; the victim's shock, pain, and stress caused by the shooting were sufficient to postpone his opportunity to reflect).

The fact that Officer Terry made most of the statements in response to questions does not defeat the statement's admissibility as an excited utterance. Neither does the detailed nature of the statements preclude finding them as excited utterances. As stated, the short time interval between the shooting and the statements, and Officer Terry's physical condition, minimized the opportunity for fabrication or reflection.

State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000) (to be admissible as excited utterance, statement need not be completely spontaneous and may be in response to a question) (citing Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)).

State v. Majors, 82 Wn. App. at 848-49 (fact that victim's statements were relatively detailed and gave defendant's license plate number did not defeat excited utterance finding).

Smiley also argues that Officer Terry's statement that he heard someone say `it ain't nothing' and `he's a cop' constitutes double hearsay. .

We disagree. ER 805 states that '[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.' Officer Terry's statement that he heard one of the men yell `he's a cop' is not double hearsay. The statement `he's a cop' yelled by one of the men at the off-ramp is not hearsay because it is not offered to prove the truth of the matter asserted. The point of offering the statement was to show that someone alerted the others that Officer Terry was a police officer. The truth of the statement was irrelevant. The same analysis applies to Officer Terry's statement that someone said `it ain't nothing.' The statement `it ain't nothing' is not significant for its truth. Rather, it was offered to show the oral response during his exchange before shots were fired.

ER 801(c); 5B Karl B. Tegland, Washington Practice, Evidence Law and Practice § 801.8 (4th ed. 1999).

Finally, Smiley is mistaken in claiming that admission of Officer Terry's statements violated his right to confrontation. Admissibility of a hearsay statement does not offend the confrontation clause if the statement bears adequate indicia of reliability. Reliability in turn can be inferred where the hearsay statement falls within a firmly rooted hearsay exception. The United States Supreme Court has stated that the excited utterance exception to the hearsay rule is a `firmly rooted' hearsay exception that carries sufficient indicia of reliability to satisfy the reliability requirements of the confrontation clause. As such, admission of Officer Terry's statements does not violate Smiley's confrontation rights. State v. Brown is inapposite. There, our supreme court held that the tape of victim's 911 call could not qualify as an excited utterance where victim had the opportunity to, and did fabricate a story that she was abducted prior to making the 911 call. Here, there was no evidence of Officer Terry fabricating his statements or anything else to suggest its unreliability.

Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Roberts, 448 U.S. at 66.

White v. Illinois, 502 U.S. 346, 356 n. 8, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).

127 Wn.2d 749, 903 P.2d 459 (1995).

Brown 127 Wn.2d at 759.

Smiley also contends that the trial court abused its discretion by admitting an `in life' photograph of Officer Terry. Specifically, he argues that the photograph was not relevant and was prejudicial because it allegedly depicted Officer Terry as an angel with a halo. We disagree.

Here, Officer Willy Williams testified that the picture at issue fairly and accurately represented Officer Terry on the morning of June 4, 1994. Over Smiley's objection that the picture did not accurately depict Officer Terry because the photograph faded to a white area encircling Officer Terry's outline, the trial court admitted the photograph. The trial court properly admitted the photograph.

The photograph of Officer Terry was relevant because it tended to prove his identity. Smiley disputed Maupin's testimony that Officer Terry was wearing a blue shirt when she saw him at the off-ramp. The State established that, on the night he was killed, Officer Terry was wearing the same blue denim shirt that he is pictured wearing in the photograph. Thus, Maupin's ability to identify a photograph of Officer Terry as he looked on the night he was shot was certainly relevant. Moreover, the photograph's probative value was not outweighed by the danger of unfair prejudice. Review of the photograph shows that Officer Terry simply was not depicted as an angel. Prosecutorial Misconduct Smiley claims that repeated prosecutorial misconduct during closing argument deprived him of a fair trial. We do not agree.

Pirtle, 127 Wn.2d at 652 (in-life photographs of victims relevant as State had the burden of proving victims' identity).

A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. We view the alleged improper remarks in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Failure to object to an improper remark constitutes a waiver of error unless the remark is so `flagrant and ill-intentioned' that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Smiley complains of eight statements made by the prosecutor during the State's closing argument. The first and second statements involved the prosecutor allegedly using defense counsel's opening statement to establish one of the elements of the crime and referencing an exhibit that was not offered into evidence. But these alleged statements are not in the record before us and we need not address them. The third statement related to the prosecutor's claim that Smiley never asserted self-defense:

Brown, 132 Wn.2d at 561.

Brown, 132 Wn.2d at 561; State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).

State v. Dunaway, 109 Wn.2d 207, 220, 743 P.2d 1237 (1987) (matters referred to in an appellate brief but not included in the record cannot be considered on appeal); State v. Hartley, 51 Wn. App. 442, 449, 754 P.2d 131 (1988); RAP 10.3(a)(5).

[Prosecutor:] And as I mentioned before, Eric Smiley has never, ever, ever claimed self-defense. All of his statements that you heard testified to on the off-ramp when he was arrested — [Defense counsel:] I will object. He has claimed self-defense during the trial consistently. [Prosecutor:] Let me — [The court:] The objection is sustained. [Prosecutor:] Mr. Smiley has never said to anybody `self-defense.' Never said it. On the off-ramp, he said, `I wasn't involved. I was throwing up. I have no idea what went on.' Ira Potts doesn't remember the throwing up.

He says when he gets to the precinct and he's interviewed by detectives Cameron and Ramirez, `not involved, no idea what's going on, don't know what you are talking about.' And even at 1:07 in the morning, the most he is willing to say at that point is, `well, Jeremy or Quentin handed me the gun and it went off, so I threw it off to the side of the road.'

Report of Proceedings on March 18, 1997 at 47.

The fourth statement made during the State's rebuttal closing argument referred to the location of the gun prior to firing it:

[Prosecutor:] What I'm going to do in the next few minutes is answer some of the things that [defense counsel] has said. And the first thing I'd like to talk about very briefly, he talked about the kids in the car with Mr. Smiley. And I suggest to you, when you pick up a gun, when you carry a gun with you for seven hours, you are carrying that gun down the front of your pants, you stop being a kid. These weren't kids out there on the ramp with Mr. Smiley

I want to talk about the gun just briefly. They didn't know he had a gun for seven hours? He kept that gun shoved down his pants and they never knew it? He sat down with the gun there? [Defense counsel:] I will object. There is no testimony as to where the gun was.

[Court:] The objection is sustained. [Prosecutor:] You heard where he drew the gun from, where it came from. I think [defense counsel] talked about it being concealed under a jersey that looked like this. I suggest to you it's implausible that they never knew he had a weapon in seven hours.

Report of Proceedings on March 18, 1997 at 185.

We question whether Smiley has sustained his burden of establishing that either statement was improper. In closing argument, a prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence. Here, both statements were reasonably supported by evidence admitted at trial. In numerous interviews by the police, Smiley never said anything about using the gun to defend himself or anyone else. And Ira Potts testified that Ervin pulled a gun from his waistband and began firing. Even assuming these statements were improper, they could not have prejudiced Smiley because the trial court sustained the objections by counsel.

Brown, 132 Wn.2d at 565.

The fifth statement related to the off-ramp scene view where the prosecutor allegedly told the jurors to consider the distances at the off ramp:

[Prosecutor:] And I'd like to talk to you real briefly about that ramp. We were talking about the firing of the weapons. There has been lot of talk about just how far and how great the distances are. And I think that's why it was so fortunate that you had a chance to go out to the ramp and actually look, and stand there and look to the end of the ramp.

And I think most of you — I would suggest that probably many of you were shocked — [Defense counsel:] I will object. The scene view is not evidence. They have been instructed on that. [Court:] Sustained. The jury has been instructed. The scene view is not evidence. [Prosecutor:] You were at the scene. You do know what the distances are. You can certainly consider that. [Defense counsel:] Same objection. [Court:] The jury has been instructed and will be instructed again, that going to the scene was not evidence. It was only so that you could understand the evidence that has been produced in court.

Report of Proceedings on March 18, 1997 at 195-96.

These remarks were improper. The law is clear that the view of the scene is not evidence. Urging the jury to consider that view was contrary to the law. But we hold that the remarks were not prejudicial. The court repeatedly gave oral instructions that the scene view was not evidence and that the jury should not consider counsel's closing argument as evidence..

State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994).

We presume the jury follows the trial court's instructions. The sixth statement relates to the prosecutor stating that there was no evidence of Officer Terry having prior contact with Ervin, McAllister, or Potts:

Hanna, 123 Wn.2d at 711.

[Prosecutor:] The thing is, there has been no evidence, there has been no testimony presented to you, of any contact between Antonio Terry and Jeremy McAllister, Quentin Ervin, or Ira Pots [sic]. The only testimony is contact between Antonio Terry and Eric Smiley. [Defense counsel:] I will object. That would be collateral. [Court:] Sustained. [Prosecutor:] I would suggest to you that that shows that the only person that could have said ['he's a cop'], was Eric Smiley.

Report of Proceedings on March 18, 1997 at 200-01.

As indicated above, counsel for Smiley objected to the above statements as being collateral, and not, as he claims now, that the statements mischaracterized the facts. We conclude that Smiley waived the error now asserted on appeal because the remark clearly is not so `flagrant and ill-intentioned' that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.

Finally, the seventh and eighth statements related to the State suggesting during closing argument that the defense used inappropriate means to tamper with a witness and that Officer Terry knew he was dying. The record before us does not support Smiley's claim that the State suggested during closing argument that Officer Terry knew he was dying. And assuming that the statement that the defense tampered with a witness constituted misconduct, Smiley cannot show prejudice. The trial court instructed the jury not to consider counsel's statement as evidence. Motion for Change of Venue Smiley next claims that the trial court abused its discretion in denying his motion for change of venue due to the jury's exposure to extensive pretrial publicity. There was no abuse of discretion.

Hanna, 123 Wn.2d at 711 (jury presumed to follow court's instructions).

A change of venue should be granted to protect a defendant's due process guaranty of a fair and impartial trial when a defendant demonstrates a probability of unfairness because of pretrial publicity. In determining whether a trial court has abused its discretion in denying a change of venue, an appellate court considers nine factors:

Rice, 120 Wn.2d at 556.

(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.

Rice, 120 Wn.2d at 556 (citing State v. Crudup, 11 Wn. App. 583, 587, 524 P.2d 479, review denied, 84 Wn.2d 1012 (1974)).

We review a trial court's ruling on a motion for change of venue for abuse of discretion. We independently review the record to determine whether the probability of prejudice is so apparent that it constitutes error to deny the motion. As to the first factor, Smiley failed to show that the publicity surrounding the trial was inflammatory. A review of the record shows that the articles covering the incident were factual, balanced, and not sensational. The second, factor, the degree to which the publicity was circulated, does not support a venue change. Although the publicity in this case was extensive, `widespread factual publicity does not invariably justify a change of venue.' Moreover, since voir dire in the second trial, there were less than 10 articles regarding the incident. The third factor, the length of time from the publicity to the trial, also does not justify change of venue. In Rice, our supreme court concluded there was no abuse of discretion in denying a motion for change of venue where voir dire occurred approximately 22 months after the murders. Likewise, this factor does not support a change of venue because voir dire in this case occurred almost 28 months after Officer Terry was killed. As to the fourth factor, the record shows that the care with which the jury was selected does not support a change of venue. Over a period of several weeks, all of the prospective jurors underwent extensive examination regarding bias, prejudice, and knowledge of the incident that included a 13-page questionnaire and lengthy individual questioning. And the trial court stated that there was little difficulty encountered in the selection process given the amount of jurors encountered. As to the fifth factor, the trial court indicated that there were seven jurors who noted that they had never heard of this case in the media. Moreover, the remaining jurors who had heard of the case indicated that they would set aside whatever coverage of the incident they could recall and act impartially. The sixth factor involves challenges used by defense counsel. Although defense counsel here used all the peremptory challenges in the selection of the initial 12 jurors, they did not use all of their peremptory challenges with respect to the alternate jurors. Thus, this factor does not necessarily favor change of venue.

State v. Hoffman, 116 Wn.2d 51, 71, 804 P.2d 577 (1991).

State v. Thompson, 60 Wn. App. 662, 669, 806 P.2d 1251 (1991).

Rice, 120 Wn.2d at 557.

Rice, 120 Wn.2d at 558 (the relevant issue in the fifth factor, the jurors' familiarity with publicity and its effect on them, is whether the jurors had such fixed opinions that they could not act impartially).

The seventh factor is the connection between government officials and the release of publicity, the focus being the release of improper release of information by government officials. Smiley has not shown that government officials here improperly released information through their comments to the media.

Hoffman, 116 Wn.2d at 73.

The eighth factor, the severity of the charge, is the only factor that favors change of venue as Smiley was charged with aggravated first degree murder. But that one factor alone is insufficient by itself to support reversal.

The ninth and final factor, the size of the area from which the venire is drawn, also does not support change of venue. King County contains over a million registered voters at the time the motion for change of venue was made. In Rice, our supreme court found that the Yakima County jury pool size of 73,148 registered voters did not favor a change of venue. In sum, the trial court properly denied Smiley's motion for change of venue.

Rice, 120 Wn.2d at 559.

Sequestration

Smiley also argues that the trial court abused its discretion in not sequestering the jury. We disagree. CrR 6.7(a) allows jurors to separate during trial and deliberations unless good cause is shown. The trial court has broad discretion to determine whether the jury should be sequestered during trial. To show an abuse of discretion, `the defendant must show that either (1) jurors were exposed to publicity during trial, or (2) the publicity during trial was of such a sensational or prejudicial nature that mere risk of exposure created a probability of prejudice.' Smiley fails to show that the jurors were exposed to publicity during trial and as indicated above, there was no sensational or prejudicial publicity during Smiley's second trial. The trial court properly denied his motion to sequester. Jury View of the Scene Smiley challenges the trial court's decision to allow the jury to view the crime scene because the prejudicial effect outweighed its probative value.

State v. Mak, 105 Wn.2d 692, 708, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).

State v. Ng, 104 Wn.2d 763, 776, 713 P.2d 63 (1985).

We hold that the trial court properly allowed the crime scene view. Under CrR 6.9, the trial court `may allow the jury to view the place in which any material fact occurred.' The purpose of permitting a jury to view the crime scene is to enable it to better understand the evidence produced in court. A jury view of a crime scene is a means of helping the jury to understand the evidence, but is not itself evidence. We review a trial court's decision to permit a jury view for abuse of discretion. First, Smiley contends that the scene view prejudiced him because the jury view of the off-ramp in broad daylight varied from the conditions of the night of the incident. Here, the trial court properly determined that jury view of the off-ramp would aid the jury in understanding the evidence presented about the events at the off-ramp. The off-ramp covers a wide area that could not be photographed entirely. The State did not oppose a jury view at night but due to logistical reasons, it was not feasible to conduct such a view. And although the shrubbery near the off-ramp was probably different from the night of the incident, the trial court instructed the jury to stay on the off-ramp and not wander off to the bushes. Finally, closing down the off-ramp and having police escorts at the off-ramp was necessary for safety reasons. In sum, there were tenable bases for the trial court's decision to permit the jury to view the off-ramp even though the conditions varied from those on the night of the incident. Second, Smiley argues that the scene of the view forced him to choose between his constitutional right of confrontation and his constitutional right to appear before the jury without shackles. We reject this argument. Article 1, section 22 of the Washington State Constitution states in part that '[i]n criminal prosecutions[,] the accused shall have the right to appear and defend in person ' The Sixth Amendment of the United States Constitution provides that a criminal defendant has the right `to be confronted with the witnesses against him.' The protection afforded by the state and federal confrontation clauses is identical. But a criminal defendant has no constitutional right to be present at a jury view of the crime scene. Here, the trial court allowed the jury to view the off-ramp and made specific rulings as to how Smiley would be transported and restrained at the scene. Smiley would be transported to the off-ramp by a white unmarked van with tinted windows. If Smiley chose to view the scene seated in the van, he would be shackled at the legs and handcuffed. If he elected to get out of the van, the leg shackles and handcuffs would be removed and Smiley was required to wear special boots to prevent him from running. After the trial court set forth the above procedures, Smiley elected to waive his presence at the scene, claiming that the prejudice of being present under the above circumstances greatly outweighed any benefit. Absent any constitutional right to be present at the scene and given Smiley's election not to be present because of restrictions that were properly imposed, there is no basis here for reversal. Restraint of Witness Smiley argues that the trial court erred in allowing defense witness, Nathaniel Sanders, to testify in shackles. This argument is unpersuasive, and we reject it.

Land, 121 Wn.2d at 501.

State v. Stoudamire, 30 Wn. App. 41, 46, 631 P.2d 1028, review denied, 96 Wn.2d 1011 (1981).

Land, 121 Wn.2d at 502.

State v. Foster, 135 Wn.2d 441, 454, 957 P.2d 712 (1998).

State v. Perkins, 32 Wn.2d 810, 861, 204 P.2d 207, cert. denied, 338 U.S. 862 (1949) (jury view of crime scene outside presence of defendant does not violate article I, section 22 of the state constitution); Foster, 135 Wn.2d at 462; Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds by, Malloy v. Hogan, 378 U.S. 1 (1964).

When a jury views a shackled defendant, the defendant's constitutional right to a fair trial is impaired. That is because restraints may abridge the accused's constitutional right to the presumption of innocence. Slightly different interests are implicated when a witness is shackled. `While a shackled witness may not directly affect the presumption of innocence, it seems plain that there may be some inherent prejudice to defendant, as the jury may doubt the witness' credibility.' `Thus, the physical restraint of witnesses should likewise be undertaken only in compelling circumstances, which the trial court should explain on the record.' We review a trial court's decision to physically restrain defendants and witnesses for abuse of discretion. Here, the trial court held a hearing to determine whether defense witness, Nathaniel Sanders, should be physically restrained. An officer from the department of adult detention and the captain of the King County Jail testified regarding Sanders's security status and past history of infractions. They testified that Sanders was young, agile, had a history of violent behavior with law enforcement personnel, and had a prior conviction for escape. They also testified as to the availability of alternative restraints and indicated that they were not as adequate in maintaining safety in the courtroom. Based on this testimony, the trial court determined that Sanders should be shackled. There was no abuse of discretion. Business Record Smiley challenges the trial court's admission of the event overtime summary (timesheet) purporting to show Officer Terry's working hours was improperly admitted under the business record exception to the hearsay rule. He claims the timesheet was altered by the police in an attempt to establish that Officer Terry was on duty when he was shot. We decline to consider this claim as Smiley failed to preserve it for review. Failure to raise a contemporaneous objection to the admission of evidence precludes a party from raising such an objection for the first time on appeal. Here, the record shows that Smiley did not object at trial to the admission of the timesheet. Thus, he has waived this claim on appeal.

State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837 (2000).

State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694 (1981).

Hartzog, 96 Wn.2d at 399.

Hartzog, 96 Wn.2d at 401.

State v. Thetford, 109 Wn.2d 392, 397, 745 P.2d 496 (1987).

Report of Proceedings on December 17, 1997 at 104.

Recusal

Smiley contends the trial judge committed reversible error when she failed to recuse herself after `Witness D' informed the court that he heard Smiley make a death threat against the trial judge. There was no error here. Due process, the appearance of fairness doctrine, and Canon 3(D)(1) of the Code of Judicial Conduct require a judge to recuse herself if she is biased against a party or if her impartiality may be reasonably questioned. But the party claiming bias must present evidence of the judge's actual or potential bias. We review a decision on recusal for an abuse of discretion. Bilal deals with recusal of judges based on threats made against them. In Bilal, the defendant moved to recuse the sentencing judge, citing that the judge would be biased because Bilal had earlier assaulted the same judge when his guilty verdict for second degree rape was read. In upholding the trial judge's denial of the recusal motion, this court relied on the fact that there was no evidence of bias as Bilal was sentenced within the standard range. Here, Smiley's alleged threats against the judge all stem from what `Witness D' heard. According to `Witness D,' Smiley was angry that the trial judge did not recuse herself earlier after he moved to disqualify her for initiating an investigation into alleged communication between Smiley's girlfriend and a former juror who was hospitalized. `Witness D' also alleged that he overheard Smiley give other inmates a list of names, which included that of the trial judge, of people he wanted to `get to.' Finally, `Witness D' also said he heard Smiley talking to other inmates about money to be paid for `hits' on the judge, prosecutors, and witnesses.

State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996). CJC 3(D)(1)(a) states that Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances in which the judge has a personal bias or prejudice concerning a party[.]

State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674, review denied, 127 Wn.2d 1013 (1995).

In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 679 (1997), review denied, 134 Wn.2d 1014 (1998).

The trial judge concluded that the allegations of Smiley's threats were unfounded and denied the motion to recuse. She based her conclusion on the result of `Witness D's' polygraph test and numerous psychological evaluations that determined that `Witness D' is a disturbed, narcissistic, and melodramatic person with grandiose illusions. Under these circumstances, the trial judge did not err in denying Smiley's motion for recusal. Moreover, like Bilal, the record does not reveal evidence of bias or potential for bias by the trial judge. United States v. Greenspan is distinguishable. There, the FBI investigated allegations that the defendant had conspired to kill the judge and his family. FBI agents informed the trial judge about the conspiracy after the defendant had been convicted, but before sentencing. Accordingly, the trial judge expedited the sentencing hearing and refused to grant a continuance in order to get defendant into the federal penitentiary system immediately where he could be monitored more closely. The defendant then moved to recuse the judge at sentencing based upon the alleged threats. On appeal, the 10th Circuit reversed, noting that the `apparently genuine' and substantiated threats, combined with the court accelerating the sentencing hearing, contributed to an appearance that the trial court was prejudiced against the defendant. The court also found that the fact that the threats were not made to secure recusal or delay the proceedings warranted recusal by the trial court. In contrast, the trial court here found that the threats were unfounded. Smiley does not challenge this finding. Thus, they are verities on appeal.

26 F.3d 1001 (10th Cir. 1994).

Greenspan, 26 F.3d at 1005.

Greenspan, 26 F.3d at 1006-07.

Greenspan, 26 F.3d at 1006 ('[i]n a case like the present, where there is no inference that the threat was some kind of ploy, the judge should have recused himself and allowed another judge to sentence Greenspan. Had there been any reason to believe that the threats were made only in an attempt to obtain a different judge, to delay the proceedings, to harass, or for other vexatious or frivolous purpose, recusal would not have been warranted[.]').

We affirm the judgment and sentence.

KENNEDY and BAKER, JJ., concur.

State v. Smiley

Opinion

Harmless Error: Principal Liability

Missing Witness Instruction

Sentencing

Sequestration

Recusal

State v. Smiley

State v. Smiley

Case Details

Citations

State v. Smiley

Opinion

Harmless Error: Principal Liability

Missing Witness Instruction

Sentencing

Sequestration

Recusal

State v. Smiley

State v. Smiley

Case Details

CitationsCopy Citation

Citations