Opinion
Nos. 34133-6-II; 35443-8-II.
May 15, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 91-1-02697-3, Thomas Felnagle, J., entered December 2, 2005, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Penoyar, JJ.
Jayson Smith appeals his convictions of first degree murder and second degree assault with a deadly weapon, arguing trial court evidentiary and instructional error and ineffective assistance of counsel. He also raises additional arguments pro se and in a personal restraint petition (PRP) consolidated with his direct appeal. We affirm the convictions and deny the PRP.
FACTS
On July 22, 1991, a drive-by shooting in Tillicum left Willie "Junior" Greenlee dead and Cynthia Davis severely injured. Arriving at the scene, the police chased a person carrying a gun. The person wore a blue jacket, light colored pants, and a blue baseball hat.
At the time of the shooting, Smith was selling drugs for Travis Greenlee, Willie's younger brother. Earlier on July 22, Travis first confronted Smith about an outstanding $350 debt and threatened Smith by firing a gun at him. Several hours later, an assailant fired gunshots at a crowd standing outside the Greenlee apartment, resulting in Willie's death and a gunshot wound to Davis's shoulder.
Several witnesses identified the shooter as a light-skinned African-American man wearing blue. In addition, there was a blue four-door sedan parked on the road outside the Greenlee apartment with the keys still in the ignition. The car's registration led the police to Desiree Lee, Smith's girl friend and the mother of his child. Based on interviews with the witnesses as well as statements from Lee and Smith's mother, Barbara Steele, the police focused on Smith as the primary suspect. Lee convinced Smith to surrender to the police.
Original Plea
The State originally charged Smith with (1) first degree murder committed with the premeditated intent to cause the death of Willie or another person and (2) second degree assault of Davis with a deadly weapon. The State amended the original information and Smith pleaded guilty to second degree felony murder, RCW 9A.32.050(1)(b), and second degree assault with a firearm, RCW 9A.36.021(1)(c).
Procedural History
On March 15, 2005, Smith filed a pro se motion for relief from judgment under CrR 7.8. In his motion, he argued that a second degree assault could not form the basis for a felony murder conviction in light of the Supreme Court decisions in In the Matter of the Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), and In the Matter of the Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). The trial court entered an order vacating Smith's sentence for second degree murder following Hinton and Andress and entered an order allowing him to withdraw guilty plea.
In addition, the trial court allowed the State to withdraw the amended information that formed the basis for the guilty plea and reinstate the original information from July 30, 1991. The reinstated information alleged: (1) first degree murder committed with the premeditated intent to cause the death of another, RCW 9A.32.030(1)(a) or, in the alternative, first degree murder under circumstances manifesting an extreme indifference to human life and creating a grave risk of death, RCW 9A.32.030(1)(b); and (2) second degree assault with a deadly weapon, a firearm, RCW 9A.36.021(1)(c).
On November 7 and 8, 2005, the trial court met with the parties to resolve disputes over the State's delay in turning over its witness lists and other discovery. The State was to deliver its witness list to the defense by September 8. On September 8, the defense received a list containing eight names. The State listed no police officers.
Although the State promised to have a complete list by October 7, the State did not supply the witness list until November 2, five days before the scheduled trial date. The witness list still lacked several names, as well as addresses and contact numbers. Defense counsel moved for a dismissal based on discovery mismanagement. The State countered that a continuance was the most appropriate remedy. The trial court reached a middle ground by excluding certain witnesses that the State failed to disclose in a timely manner and allowing others where there was no unfair prejudice to Smith.
The parties filed various motions in limine concerning photographic identifications of Smith both at the time of the shooting and at trial. The trial court denied a motion to exclude the original photomontages that the police showed to potential witnesses after the shooting in 1991. But apparently the police had not preserved the photomontage over time. Both detectives originally assigned to the photomontage had died, but another detective was able to recreate five of the six photographs using the photo identification numbers from the original report. Over Smith's objection, the trial court allowed the State to show witnesses a 1991 booking photograph of Smith to aid in their identification as the shooter.
The trial court also held a CrR. 3.5 hearing and ruled admissible statements Smith made to police officers following his arrest in 1991.
Trial
At trial, the State called five of the Greenlees' neighbors who were eyewitnesses to the shooting. Patsy Mooney (Mooney at trial in 1991, now Hardy) testified that she was visiting a friend who lived next door to the Greenlees at the time of the shooting. Before she entered her friend's apartment, Mooney walked by Willie and Travis as they talked beside a blue sedan.
Once inside, Mooney heard and saw the same car leave the scene. Between five and twenty minutes later, Mooney heard shots and she "dropped down." 5 Report of Proceedings (RP) at 76. She looked up and saw a light-skinned African-American male with a gun in his hand walk by her window. It was the same man she saw earlier talking with Travis and Willie. She described the shooter as wearing a hat, 5 feet 8 inches to 5 feet 11 inches in height, and having a "little bit of fuzz" for facial hair. 5 RP at 70.
Mooney had never seen the shooter before July 22, 1991, and she had approximately one minute to observe his features. In July 1991, the police showed her a photomontage of six individuals, including Smith, but she was unable to identify Smith as the shooter.
At trial in 2005, Mooney could not identify Smith as the shooter but she "kind of" recognized him. 5 RP at 81. When the State showed Smith's 1991 booking photograph, she positively identified him as the shooter. She expressed no doubt about her identification, stating, "That was the shooter," 5 RP at 82, and "I know who I saw, and that was him." X RP at 57.
The State also called Catherine Weisenbach. She was in her apartment putting her children to bed when she heard what sounded like firecrackers exploding on the street. She glanced outside and saw a person walking across the parking lot with a gun. She recognized him as someone she had seen speaking with Travis and Willie earlier in that day. She stated he was a light-skinned black male, 5 feet 7 inches to 5 feet 8 inches tall. She also noticed a blue car in the middle of the road — the same blue car she had previously seen next to this light-skinned African-American earlier. A few days after the shooting, she failed to pick Smith out of the photomontage. At trial, she was unable to identify Smith in court. But when the State showed her the 1991 booking photograph, she identified the man in the picture as the shooter from 14 years earlier.
Alanda Richard also witnessed the crime. She described the shooter as a dark-skinned black male, about 18 years old, medium build, and about 6 feet tall. At the time of the shooting, she described the shooter as wearing a blue hat and a blue shirt. She also associated the shooter with the blue car in the road. After the shooting, she looked at a photomontage and identified a person other than Smith as the shooter. The State showed her the single photograph of Smith and, although she recognized the photograph, she did not identify him as the shooter. She repeated that she remembered the shooter as being a dark-skinned African-American.
In response to Richard's testimony, the State called Pierce County Sheriff's Department Sergeant Marsha Stril. Stril testified that when she had interviewed witnesses after the 1991 shooting, she had asked Richard to describe the shooter. The State offered to admit this testimony as an exception to the hearsay rule under ER 801(d) — a statement regarding identification. Smith objected to the testimony as hearsay. When defense counsel could not cite authority contrary to the State's assertion, the trial court allowed Stril to testify that at the time of the shooting, Richard described the shooter as a 6 feet tall, slim, light-skinned black male, who was wearing blue.
Michelle Broughton and Jack Kline also saw the shooter. Both were able to observe him for almost a minute. Broughton described the shooter as a "black male . . . 18 to 19 years old, approximately 58, medium build, wearing a dark blue baseball cap," and a dark blue sweatshirt. 6 RP at 102. Kline remembered seeing a black man with light skin or a white man with dark skin wearing a blue pullover shirt, black hat, with a short haircut and a clean-shaven face. Neither Broughton nor Kline saw the photomontage in 1991, and neither could identify Smith at trial.
Travis testified that he and Smith were acquaintances and that he gave Smith drugs to sell in exchange for Smith returning a portion of the profits. Travis stated that early in the afternoon on July 22, he fired a gun at Smith over a disagreement concerning $350 that Smith owed him. After he shot at Smith, Travis returned home and spent the evening in the parking lot outside of his apartment. He received a phone call from his girl friend, who lived bear Smith's girl friend, that Smith was on his way over to shoot Travis.
Contrary to the testimony of other witnesses who stated that they saw the assailant talking with Travis between five and twenty minutes before the shooting, Travis testified that he did not see Smith again until after Willie was shot. According to Travis, he, Willie, and a group of friends were in his apartment when Willie stepped outside for a phone call. Travis heard the shots and then looked outside to see Willie dead on the steps. Travis ran to his bedroom and grabbed a gun. Through the bedroom window he saw Smith running. In an effort to kill Smith, Travis took his gun and ran after him. The police apprehended Travis while he was on his way to Smith's apartment.
Travis's testimony differed somewhat from his brother's testimony. His brother, Casey, remembered meeting Travis and Willie in the parking lot and then walking into the apartment together. Casey remembered that he and Willie were on the outside steps when the shots rang out and Willie fell to the ground.
The State also called Lee, Smith's girl friend in 1991 and the mother of his child. Lee did not possess a clear memory of the 1991 events and the State referred to her statement to the police on the night of the shooting to refresh her recollection. In her 1991 statement, Lee told the police that Smith came to her apartment after Travis shot at him and stated he was going to "take care of Travis before Travis took care of him." VIII RP at 86. Smith then changed into a dark blue sweatshirt and blue pants and headed toward Lee's car.
Barbara Steele, Smith's mother, gave a statement to the police shortly after the shooting that referred to a conversation she had with Smith. Steele admitted that she had been a drug addict most of her life, that she had suffered a minor stroke, and that she currently lived in a nursing home. During cross-examination, Steele admitted that she was a heavy drug user in July 1991, and she used drugs on a daily basis. She could not remember giving a statement to the police in 1991, and, thus, she could not remember the contents. But she could identify her voice on a 1991 recorded statement.
Steele testified that she would have known that it was important to be honest and tell the police the truth. Citing ER 803(a)(5), the State sought to play the taped statement as a past recorded recollection. Smith objected, arguing it violated his constitutional confrontation right under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d. 177 (2004). The trial court overruled the objection and allowed the State to play the tape. In her taped statement, Steele said that her son had told her that he had shot at someone and that he had time to get the gun and go to Tillicum. Smith said, "[M]om, it's . . . premeditated so, you know, I'm in real, I'm in big trouble." Ex. 85. Smith told his mother that he had disposed of the gun.
The State also called several police witnesses involved in the original 1991 investigation. The first two officers on the scene found Lee's car in the middle of the street. Witnesses told the officers that the shooter had emerged from the vehicle and, after seeing the shooter cross the street, the police pursued him on foot. Although they were never able to get a long look at his face, the police officers described a black male wearing a blue baseball cap, blue jacket, and light colored pants.
The State also provided expert ballistics testimony about the numerous gunshots fired around and into the apartment building. An expert testified that, given the bullets' velocities, they could have reached the Interstate freeway located approximately 400 feet from the shooting.
Finally, all the eyewitnesses testified to being in close proximity to the shooting and some, like Weisenbach, had young children with her.
Detective Barnes arrested Smith after he surrendered to the police in Seattle. Barnes testified that he read Smith his Miranda rights and on the drive back to Tacoma, Smith made several incriminating statements. First, Smith told Barnes that he did not have the gun anymore and that it had "been destroyed." IX RP at 57. Second, Smith asked about how many years in prison he would receive for this crime. Finally, Smith stated that the entire incident had been "eating away at him." IX RP at 60.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Smith testified that he did not recall making any statements to Lee about intending to harm Travis, that his mother had misconstrued his words when he spoke to her after the shooting, and that the police implicitly threatened him in order to coerce his statement about the gun. Finally, Smith said that he had an alibi for July 22, 1991. But he admitted that he had never told law enforcement about this alibi and no other witness had any knowledge of this alibi.
Jury Instructions
Before jury deliberations, the parties disputed whether the trial court should submit lesser included offense instructions to the jury. Smith asked the trial court to instruct the jury on elements of second degree murder as an alternative to premeditated murder and first degree manslaughter as an alternative to extreme indifference as a basis of first degree murder.
Smith argued that the evidence of Travis's earlier attack could have provoked Smith and he had not "cooled off" at the time he went to the Greenlee apartment. With regard to extreme indifference, Smith argued that the provocation could lead to a finding of a wanton, willful disregard for the safety of others as opposed to the "depraved mind sequence" needed for the extreme indifference prong of first degree murder. XI RP at 9.
The trial court ruled that Smith satisfied the legal prong of the State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) test but failed to demonstrate the factual prong. The trial court acknowledged that Smith could take some of the State's testimony and his own testimony to try to show provocation leading to a second degree murder instruction. But the trial court did not see "sufficient evidence, in the Court's mind, of intent without premeditation." XI RP at 6.
Moreover, the trial court ruled that the State's evidence "suggests premeditation or nothing, and in between, there is just simply no scenario that the Court can identify that suggests that the provocation led itself to an intentional murder, if there was indeed provocation." XI RP at 6. In addition, the trial court found that the State's evidence showed too much time lapsed between Travis's attack and the shooting to demonstrate that Smith could have still acted in the "heat of moment."
With regard to the extreme indifference basis, the trial court noted that the State's evidence demonstrated that several shots were fired in a small area with densely populated apartments only 400 feet from a busy freeway. The trial court ruled that although Smith presented evidence that he was not the shooter, there simply was no evidence showing that the shooting occurred recklessly but not with extreme indifference.
The jury convicted Smith of first degree murder and first degree assault with a deadly weapon and he appeals.
ANALYSIS Photographic Identification
Smith first argues that Mooney's and Weisenbach's in-court identification based on a single photograph was impermissibly suggestive and violated his right to due process of law. Any possible error was harmless.
We will find a constitutional error harmless only when it is certain that any reasonable jury would reach the same verdict absent the error. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996); see also State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995). That is the case here.
There was ample circumstantial and direct evidence for the jury to convict Smith. Travis saw Smith with a gun in his hands minutes after the shooting, and Travis did not rely on the 1991 photograph to make his identification. Lee, Smith's girl friend and the mother of his child, testified that (1) Smith had come to her apartment after Travis shot at him and stated he was "going to take care of Travis before Travis took care of him," VIII RP at 86; (2) Smith had changed into an outfit similar to the one all the eyewitnesses described — a dark blue sweatshirt and blue pants; and (3) Smith then headed toward her car, a blue four-door sedan, that the police later found outside the Greenlee apartment with the keys in the ignition.
The murder victim's brother, Travis, testified that (1) he and Smith were acquaintances; (2) Travis had given Smith drugs to sell in exchange for Smith returning a portion of the profits; (3) early in the afternoon on July 22, 1991, he had fired a gun at Smith when they disagreed about a debt; (4) after Travis returned home, he received a phone call from his girl friend, who lived next door to Smith's girl friend, that Smith was on his way over to shoot Travis; (5) he, his brother, Willie, and a group of friends were in the Greenlee apartment when Willie stepped outside for a phone call; (6) Travis heard the shots; looked outside to see Willie dead on the steps; ran to his bedroom; grabbed a gun; and, looking out the bedroom window, saw Smith running; and (7) Travis took his gun and ran after Smith on foot.
Perhaps the most critical evidence rendering the in-court photo identification harmless was Smith's incriminating statements to his mother, Barbara Steele, and to the police. The jury heard Smith's mother's tape-recorded statement to the police shortly after the 1991 shooting, in which she said that her son, Smith, told her: (1) he had shot at someone; (2) he had time to get the gun and go to Tillicum; (3) "Mom, it's premeditated so, you know, I'm in real, I'm in big trouble," Ex. 85; and (4) he had disposed of the gun.
Consistent with his confession to his mother, Smith also made several incriminating statements to Detective Barnes, who arrested Smith when Smith surrendered: Smith told Barnes that he did not have the gun anymore, that it had "been destroyed," IX RP at 57, and that the entire incident had been "eating away at him." IX RP at 60. Smith also asked Barnes how many years in prison he would serve for this crime.
Based on this overwhelming evidence, particularly Smith's own admissions of culpability and remorse for the killing and explanation of disposing of the murder weapon, we can say beyond a reasonable doubt that the jury would have reached the same verdict absent the single-photo in-court eyewitness identification by two of the many eyewitnesses. Thus, Smith's argument fails.
Hearsay Statements
Smith next contends that the trial court erred in allowing Stril to testify about a witness's previous statement. ER 801(d)(1)(ii) reads in part: "Statements Which Are Not Hearsay. A statement is not hearsay if — Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is . . . one of identification of a person made after perceiving the person."
Here, Richard did not identify Smith as the shooter in 1991. At trial in 2005, she testified that the person she witnessed was a dark-skinned African-American. The State called Stril and, under ER 803(d)(1)(iii), elicited testimony that Richard's original statement described a light-skinned African-American. This statement was not one of "identification" but rather it was a description and, thus, outside ER 801(d)(1)(iii)'s purview.
The State apparently concedes error. But again, even assuming error, it is harmless.
The State also argues that Smith failed to timely object to the testimony and cannot raise it on appeal. Our review of the record shows that he objected and we address the argument.
A trial court's erroneous admission of evidence is harmless when the evidence possesses minor significance "in reference to the overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). As we have already noted, the overwhelming evidence supports Smith's conviction.
Here, Richard's testimony that the shooter was a dark-skinned African-American certainly bolstered Smith's theory that another person committed the shooting. But out of the seven eyewitnesses, Richard was the only witness who described the shooter as dark-skinned. Moreover, this one reference to a dark-skinned shooter did not outweigh eyewitness testimony identifying Smith, Lee's car parked outside of the Greenlee apartment, and Smith's incriminating statements. Smith's argument fails.
Witness Competency
Smith next contends that defense counsel provided ineffective assistance for failing to raise the issue of Steel's competency when she gave her statement to the police. He asserts that had counsel raised this issue, the trial court would have made a preliminary inquiry into Steele's competency.
At trial, counsel objected to the testimony on Sixth Amendment grounds.
To prevail on this ineffective assistance of counsel argument, Smith must demonstrate that deficient representation resulted in prejudice affecting the trial's outcome. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). We presume that counsel provided competent and adequate representation, and we review performance in light of the entire record. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Counsel's representation is deficient only if it falls below an objective standard of performance. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995).
Smith relies on State v. Ryan, 103 Wn.2d 165, 173-74, 691 P.2d 197 (1984), to argue that a witness's competency is a precondition to admitting hearsay statements and the trial court must determine competency. But Ryan addresses the child hearsay statute, which requires a specific trial court determination about witness competency before the trial court admits hearsay statements under the statute. Ryan does not establish a rule for admission of all hearsay statements.
Instead, we begin our analysis with ER 601, requiring the trial court to presume all witnesses are competent to testify. Then we move to RCW 5.60.050, which provides:
The following persons shall not be competent to testify:
(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
Smith asserts that his counsel was ineffective because Steele admitted to being a heavy drug user when she gave her statement to the police and argues that this evidence would have compelled the trial court to find her incompetent. Washington case law does not support this assertion.
Although an intoxicated person may not testify in court, nothing in the case law precludes an intoxicated person from relaying perceived information to the police. See State v. Hall, 46 Wn. App. 689, 691-92, 732 P.2d 524 (1987) (witness's drug use at the time he perceived the event is a matter of credibility for the jury and not a matter of competency); State v. Thach, 5 Wn. App. 194, 199-200, 486 P.2d 1146 (1971) (fact that witness had been in a mental hospital and used drugs before trial did not make the witness incompetent).
Here, Steele admitted to being a frequent drug user at the time of her statement to the police, and she said that she had no recollection of her statement. But she testified that she would have known her responsibility to tell the truth to the police. The record simply does not disclose evidence that would have compelled the trial court to find her incompetent when she made her statement in 1991. Her drug use went to the weight of her testimony rather than its admissibility, and Smith's ineffective assistance of counsel argument fails.
Jury Instructions
Smith further contends that the trial court erred in refusing to give jury instructions on the lesser included offenses of second degree murder and first degree manslaughter.
A defendant is entitled to a jury instruction on a lesser included offense if (1) each of the elements is a necessary element of the charged offense (legal test), and (2) the evidence supports an inference that the defendant committed the lesser offense (factual test). State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997). To satisfy the factual prong "the evidence must raise an inference that only the lesser included . . . offense was committed to the exclusion of the charged offense." State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000). A mere possibility that the jury might disbelieve the State's evidence does not justify a lesser included offense instruction. State v. Pettus, 89 Wn. App 688, 700, 951 P.2d 284 (1998).
We review a trial court's decision to omit a lesser included offense instruction based on a factual dispute under an abuse of discretion standard. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by Berlin, 133 Wn.2d 541. A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169 (2004).
Both parties agree that Smith's proposed lesser included offenses met the legal prong, but the parties disagree on whether the evidence satisfied the factual prong.
Second degree murder
Smith first argues that the trial court should have provided the jury with the lesser included offense instruction for second degree murder. Smith relies on State v. Gallagher, 4 Wn.2d 437, 103 P.2d 1100 (1940), to assert that a trial court should provide a second degree murder instruction when there is evidence of provocation. Smith analogizes his situation to Gallagher because the State's evidence showed that Travis shot at Smith earlier on July 22, and Smith simply could have reacted to this shooting in the "heat of the moment" rather than having formed a premeditated intent to kill Travis. Smith asserts that a jury could have determined that the earlier shooting caused Smith to go to the Greenlees to threaten or warn Travis.
But the trial court found nothing to support this argument. Five hours had elapsed between Travis's attack and the later shooting at the Greenlee apartment. Compare Gallagher, 4 Wn.2d at 439-40 ("heat of the moment" shooting occurred within minutes of the previous attack). And the State provided evidence through Lee and Steele that Smith went to the apartment with the express intent to kill Travis. The trial court did not err in declining to give a lesser included instruction on second degree murder.
First Degree Manslaughter
Smith also argues that the trial court should have given a first degree manslaughter instruction as a lesser included offense to the extreme indifference alternative of first degree murder. Smith asserts that firing several shots into a crowded apartment building 400 feet from a freeway amounts to simple reckless behavior.
In State v. Pastrana, 94 Wn. App. 463, 470-71, 972 P.2d 557 (1999), we refused to require the trial court to provide a lesser included offense instruction when a defendant indiscriminately fired a gun from a moving vehicle. The defendant in Pastrana shot a gun from a moving car along a crowded freeway, and we reasoned that such behavior indicates an extreme indifference to human life. 94 Wn. App. at 471-72; see also Pettus, 89 Wn. App. at 700 (firing at a moving vehicle from another one constitutes extreme indifference).
Smith attempts to distinguish Pettus and Pastrana on the basis that firing from a moving vehicle demonstrates a degree of extreme indifference that firing a gun into a crowded apartment building does not. This reasoning does not persuade us. Here, the shooter had no idea how many people were in the apartment building or where those people were located. Moreover, the freeway was a mere 400 feet behind the apartment building and a miss would send a bullet into a busy corridor of the Interstate. Again, the trial court did not err in refusing to instruct on first degree manslaughter.
Cumulative Error
Smith further contends that cumulative error deprived him of a fair trial, requiring reversal of his convictions.
The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003). Although each error standing alone may be of insufficient gravity to warrant reversal, the combined effect of an accumulation of errors may require a new trial. State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963). Cumulative error does not deprive the defendant of a fair trial when there is no cumulative prejudicial error. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). As no error caused prejudice, Smith's argument fails.
Statement of Additional Grounds. RAP 10.10 Reinstatement of Original Information
Pro se, Smith contends that the trial court erred in permitting the State to reinstate the original information after the court vacated his original conviction based on his plea. The trial court ruled that he could either enforce his plea or go to trial on the original charges; however, he could not receive the benefit of the plea (murder in the second degree) and also be allowed to go to trial. He maintains that the amended information supersedes the original information, and the trial court should have permitted the State only to charge Smith with second degree murder.
As a general rule, an amended information supersedes the original. State v. Kinard, 21 Wn. App. 587, 589-90, 585 P.2d 836 (1978); State v. Navone, 180 Wash. 121, 123-24, 39 P.2d 384 (1934). But courts have recognized an exception when the State files the amended information to facilitate a plea bargain and the defendant opts not to accept the plea. State v. Johansen, 69 Wn.2d 187, 193-94, 417 P.2d 844 (1966); State v. Oestreich, 83 Wn. App. 648, 652, 922 P.2d 1369 (1996).
In Oestreich, the State charged the defendant with attempted first degree robbery and first degree burglary. 83 Wn. App. at 650. The defendant initially agreed to plead guilty to the robbery charge, and the State filed an amended information charging only that crime. Later, the defendant changed his mind, and the parties went to trial based on the original information. Oestreich, 83 Wn. App. at 650. On appeal, the court held that the State could proceed under the original information.
Smith asserts that Oestreich is distinguishable. Smith correctly noted that the cases involve a defendant's affirmative decision not to plead guilty as opposed to the present case where the court vacated his plea in light of Hinton. The Hinton case applies to Smith's plea bargain because the original information did not include felony murder. After the trial court vacated Smith's conviction, Smith had the option of either enforcing the original plea agreement or withdrawing his plea and proceeding to trial. Like the defendants in Johansen and Oestreich, Smith opted not to enforce the original plea agreement. The trial court did not err in permitting the State to proceed on the original information.
Discovery Violations
Also pro se, Smith argues that the trial court abused its discretion in not dismissing the case after the State failed to provide Smith timely discovery materials. When the parties met on November 7, 2005, Smith's counsel moved to dismiss the case after the State repeatedly failed to provide an accurate witness list. Smith asserts that this lack of information prejudiced him at trial by depriving his counsel of adequate preparation time.
Trial courts possess broad discretion to choose appropriate sanctions for discovery rule violations. State v. Oughton, 26 Wn. App. 74, 79, 612 P.2d 812 (1980). The exclusion or suppression of evidence is an extraordinary remedy to be applied narrowly. State v. Hutchinson, 135 Wn.2d 863, 881-82, 959 P.2d 1061 (1998).
Here, the trial court acknowledged that the State had badly managed discovery, and thus it granted the defense's motion to exclude witnesses as a sanction. The trial court also acknowledged the difficulty in preparing a case for trial where the underlying events occurred 14 years earlier. The trial court imposed a compromise between Smith's dismissal motion and the State's request for a continuance. More importantly, the trial court based its rulings on whether delay in providing the witness names prejudiced Smith in preparing his defense.
The record demonstrates that defense counsel adequately prepared cross-examination of the State's witness and provided a very coherent and effective defense. The record does not establish that the trial court abused its discretion and Smith's argument fails.
PRP — Ineffective Assistance of Counsel
In his PRP consolidated with his direct appeal, Smith raises numerous acts of ineffective assistance of counsel. Primarily, Smith argues that counsel failed to appropriately investigate Smith's defense through locating witnesses and inquiring into ballistic and fingerprint evidence.
The PRP rules clearly state that a petition must include as grounds for the requested relief "[a] statement of . . . the facts upon which the claim of unlawful restraint of petitioner is based and the evidence available to support the factual allegations." RAP 16.7(a)(2)(i) (emphasis added). Smith acknowledges that no evidence in the record points to counsel's ineffectiveness and, thus, Smith asks us to remand to the lower court for an evidentiary hearing. But as our Supreme Court has noted, "the purpose of a reference hearing is to resolve genuine factual disputes, not to determine whether the petitioner actually has evidence to support his allegations." In the Matter of the Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).
Here, Smith provides no more than bare assertions in his PRP. A lack of such evidence requires a denial of the petition. Rice, 118 Wn.2d at 886; In the Matter of the Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988).
We affirm the convictions and deny the PRP.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Armstrong, J.
Penoyar, J.