Opinion
No. 21864-3-III.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 98-1-00278-7. Judgment or order under review. Date filed: 03/05/2003. Judge signing: Hon. Gregory D Sypolt.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
The Supreme Court reversed Vy Thang's first degree murder conviction and ordered a new trial. State v. Vy Thang, 145 Wn.2d 630, 41 P.3d 1159 (2002). Mr. Thang again appeals after once more being found guilty of first degree murder with aggravating circumstances. Through counsel, Mr. Thang again contends the trial court erred in failing to suppress evidence seized during a warrantless search of his hideout. The law of the case doctrine precludes Mr. Thang's suppression argument. And, we reject Mr. Thang's pro se contentions. Accordingly, we affirm.
FACTS
Mildred Klaus, age 85, was beaten to death in her Spokane home on September 2, 1997. About one month earlier, Mr. Thang and Simeon Terry escaped from a juvenile correctional facility while on a group outing in Seattle. They made their way to Spokane where they stayed at an apartment rented to Jesse Dietzen. On September 6, 1997, police officers looking for Mr. Thang and Mr. Terry went to the apartment and asked Mr. Dietzen if the two escapees were staying with him. Mr. Dietzen said they were and gave the police permission to enter his apartment to arrest them and conduct a search. Evidence was collected from apartment common areas.
Mr. Terry later told the police he was in the apartment when Mr. Thang arrived one night and told him about robbing and beating Ms. Klaus. Mr. Terry underwent a polygraph examination on October 22, 1997. The examiner asked Mr. Terry (1) if he was in Ms. Klaus's residence when she was injured, (2) if he hit or kicked Ms. Klaus, and (3) if he knew for sure that the victim was going to be robbed and killed. Mr. Terry answered no to all three questions, but the examiner concluded he was deceptive.
In his first trial, Mr. Thang was found guilty of premeditated murder in the first degree with aggravating circumstances. This court affirmed, but the Supreme Court reversed holding (1) the search of Mr. Thang's hideout was constitutional, but (2) the admission of prior bad act evidence was reversible error. See generally Vy Thang, 145 Wn.2d 630. The Supreme Court remanded for retrial.
At retrial, Mr. Thang represented himself with standby counsel. He moved to have the trial judge recuse himself, which the court treated as a combined recusal motion and affidavit of prejudice. At a subsequent hearing, Mr. Thang withdrew the affidavit of prejudice, but renewed his recusal motion. He alleged the trial court's comments at sentencing for the first trial reflected bias. The court denied the motion.
Mr. Thang again moved to suppress the evidence seized from the apartment. The trial court denied the motion, accepting the State's argument that the Supreme Court had already resolved the search and seizure issue in the State's favor.
Mr. Thang moved to exclude Mr. Terry's testimony on the theory of witness intimidation. At the suppression hearing, Mr. Terry testified he agreed to cooperate with the State because he feared being charged in connection with the murder. But Mr. Terry also testified that his statements to detectives incriminating Mr. Thang were true. The attorney who represented Mr. Terry in 1997 testified he knew his client possibly faced a murder charge and they had discussed the matter, but the attorney would not divulge more under the attorney-client privilege. The trial court denied the motion.
Mr. Thang moved to suppress his shoes, which contained blood evidence, alleging they should not have been seized absent a warrant. The court denied the motion, again reasoning the Supreme Court had already resolved the issue.
Mr. Thang moved to suppress Mr. Terry's testimony on the theory the plea agreement amounted to a bribe of Mr. Terry. Mr. Thang later moved to suppress Mr. Terry's testimony on an alternative bribe theory focused on the State's conduct. The trial court denied both motions.
The trial court granted the State's motion to exclude any testimony regarding Mr. Terry's polygraph examinations. Over Mr. Thang's objection, the trial court granted the State's motion to admit DNA evidence developed after the first trial.
Mr. Thang moved under ER 404(b) to suppress any evidence of his escape. The State argued the escape was admissible for purposes of establishing an aggravating factor under RCW 10.95.020. The court denied the motion.
The trial court denied Mr. Thang's ER 403 motion to suppress a coin depicting the Pope (Pope coin) allegedly belonging to Ms. Klaus found on Mr. Thang.
The trial court granted Mr. Thang's motion to admit some of Mr. Terry's and David Sandvik's (another State witness) prior convictions for ER 609 impeachment purposes. But, the trial court would not allow Mr. Thang to show Mr. Terry and Mr. Sandvik were co-defendants on one or more previous convictions.
During the trial, John Klaus testified he found his deceased mother in her residence. Mr. Klaus noticed his mother's purse was missing. He recollected the Pope coin was one of the items she kept in her purse.
Spokane Police Officer Bryan Tafoya testified he examined the scene and suspected foul play because of the condition of Ms. Klaus's body and it appeared her valuables had been meddled with. Spokane Police Detective Dick Losh testified evidence showed forced entry through a screen door. The detective testified evidence showed Ms. Klaus had been assaulted while lying on the floor, including blood spatter evidence. The detective did not observe any handprints or footprints around Ms. Klaus's body. The detective said some of the blood spatters were projected out by the application of force against Ms. Klaus's head in a position close to the floor.
During a recess, Mr. Thang unsuccessfully objected to three photographs of the deceased Ms. Klaus taken at the crime scene.
Sean Lambert testified he shared an apartment with Mr. Dietzen. He said Mr. Terry and Mr. Thang had permission to stay in the living room. SAnything they probably had most likely was in the livingroom [sic].' Report of Proceedings (RP) at 523.
Refreshing his memory from previous trial testimony, Mr. Lambert stated Mr. Thang came to the apartment alone one night and said `something along the lines of `I killed the bitch. I think I killed her.'' RP at 525. According to Mr. Lambert, Mr. Thang was also carrying a bag.
Later, Mr. Lambert saw a news broadcast about the murder of Ms. Klaus. He described his reaction thus, `I just kind of — I mean, I was almost in awe, like, you know, that must have been what he was talking about, must have really happened, you know.' RP at 526. Mr. Lambert remembered Mr. Thang wore a distinctive type of tennis shoes, `Penny Hardaway Nikes.' RP at 526. Mr. Lambert was unsure about the bag, but remembered it as small and black. And Mr. Lambert could not recall whether Mr. Terry left the apartment that evening.
Ronald Schlosser testified his son found a small wallet or purse on top of his building. Identification in the bag showed it belonged to a person living nearby. When Mr. Schlosser first dropped by the residence to return the bag, no one was home. Later, Mr. Schlosser saw police and fire personnel, and gave the bag to a policeman.
Spokane Police Detective Alan Quist testified he arrested Mr. Thang and Mr. Terry at the apartment. He saw the two escapees in a `family room' and took them into custody. RP at 540. Neither man was wearing shoes, so Detective Quist had them point out their shoes and was going to have them put them on when another detective intervened. `When I had the shoes, basically Terry had his pile of stuff for him and the defendant had his stuff. And I don't recall if I had gotten shoes on them. I may have had them on them, but they were taken by the detective.' RP at 541.
Spokane Police Officer Alan Edwards testified he transported Mr. Thang to jail. Officer Edwards recalled during the trip, Mr. Thang commented `to the effect that `Who snitched us off? It was probably Simeon's mom.'' RP at 546. Officer Edwards searched Mr. Thang incident to the arrest and found an indeterminate number of coins. The officer identified a rare coin found on Mr. Thang's person.
Mr. Terry described how he and Mr. Thang escaped from the juvenile institution and came to stay at Mr. Dietzen's apartment. According to Mr. Terry, Mr. Thang borrowed his gloves one night and left while Mr. Terry stayed at the apartment with Mr. Dietzen and Mr. Lambert. Mr. Terry testified Mr. Thang returned later and `made a reference to a bitch being dead.' RP at 561. Mr. Terry said he asked Mr. Thang to elaborate, and Mr. Thang told him and Mr. Dietzen and Mr. Lambert `[t]hat he had broke into a house and had an altercation struggle with a woman and tooken [sic] her purse.' RP at 562. `He said that he had — the lady wanted to call the police and use the phone, but he restrained her by her arms and she tried to struggle, so he threw her on the ground and gave her a couple kicks.' RP at 562.
Mr. Terry testified Mr. Thang showed him the purse taken from the victim and `[h]e just said that he was just going to throw it away.' RP at 563. `He didn't tell us where he threw it, but later on we saw people walking on the roof, so we assumed it was on top of a roof.' RP at 563. Mr. Terry said he saw dried blood on Mr. Thang's socks and shoes. He said Mr. Thang wore shoes called `Penny Hardaway's.' RP at 564. He believed Mr. Thang threw his socks in the apartment's garbage. Mr. Terry said he was with Mr. Thang when the television news broadcast a report on the murder. According to Mr. Terry, Mr. Thang said "That's the house." RP at 567. Mr. Terry admitted he testified pursuant to a plea agreement that reduced a charge arising from a separate burglary committed in another part of Spokane. He said he did not initially reveal his knowledge of the murder for fear of being implicated. In redirect, Mr. Terry said Mr. Thang tried to wash his shoes after the murder.
Mr. Dietzen testified he was acquainted with Mr. Terry and he allowed Mr. Terry and Mr. Thang to stay in the living room of his apartment. He vaguely remembered Mr. Thang leaving one night and coming back later and talking about killing a woman. He said Mr. Thang also returned with a purse. He recalled that Mr. Thang threw the purse on to the roof of a building. Connie Klaus, John Klaus's wife, testified her mother-in-law showed her a Pope coin she kept in her purse in May 1997.
Spokane Police Detective George Benavidez testified he investigated Ms. Klaus's murder. He learned an apartment building located nearby where the purse was found was frequented by `a lot of young people.' RP at 632. Detective Benavidez went to the apartment building and contacted Mr. Lambert out front. The detective told Mr. Lambert he was investigating a homicide, and in the course of the conversation he learned Mr. Thang and Mr. Terry were staying at the apartment.
Detective Benavidez described what happened when he returned with more police officers to the apartment:
Knocked on the door. The door was answered by Jess Dietzen. Informed Mr. Dietzen that we had information that Simeon Terry and Vy Thang were in the apartment. I asked permission if we could go in and arrest him and he did give us permission.
RP at 633-34.
The detective observed Mr. Terry and Mr. Thang in the living room:
I directed the other officers to arrest Simeon Terry and Vy Thang with the escape warrants we had for them. In the meantime, I was talking to Jess Dietzen and Sean Lambert and was getting consent to search the rest of the apartment.
RP at 634.
With regard to the shoes, the detective testified:
As I was talking to Mr. Lambert and Mr. Dietzen, getting consent for the search, I did overhear Detective Quist getting Simeon Terry and Vy Thang's shoes. At that time I turned to him and directed him to hang on to their shoes because I wanted them as evidence. RP at 635.
Detective Benavidez said he `took custody of all the items taken in the apartment and later placed them in the property room.' RP at 635. The detective identified the various exhibits taken from the apartment, including Mr. Thang's shoes, and the trial court admitted them into evidence. Detective Benavidez said Mr. Terry was a suspect in the murder at one time but was later excluded. `I found no evidence to implicate Mr. Terry in the homicide.' RP at 648. He said he submitted the shoes and clothing of both Mr. Terry and Mr. Thang for blood, hair, and fiber analyses.
In cross-examination, Detective Benavidez conceded someone told him Mr. Terry `was at the house with the elderly lady that got killed.' RP at 650. But on re-direct, the detective said this person claimed Mr. Thang `started kicking her in the head or wherever she was kicked at; he just started kicking her until she died.' RP at 655.
Forensic scientist Charles Solomon testified he found presumptive blood stains on Mr. Thang's shoes. He also found blood stains on an athletic sock.
Forensic scientist William Culnane testified the DNA of the blood stains taken from Mr. Thang's shoes and sock matched Ms. Klaus's blood. `This DNA type with the probabilities that I generated would occur in one in, let's see, 400, one in 400-quadrillion individuals.' RP at 690.
Medical examiner Dr. Sally Aiken testified she reviewed and agreed with the previous medical examiner's autopsy of Ms. Klaus that Ms. Klaus died because of `combined modalities of blunt impact injury to the head, right neck compression and prominent deformation of the chest wall.' RP at 711. Dr. Aiken estimated it took `minutes to hours' for Ms. Klaus to die from her injuries. RP at 724.
Mr. Thang's defense was that Mr. Terry killed Ms. Klaus. As a defense witness, Mr. Terry conceded his plea agreement included a promise that he not be charged with murder. Mr. Thang moved to admit the plea agreement into evidence without objection from the State. The trial court, while ruling, said: `Well, the evidence is the testimony, counsel. The witness' memory is refreshed by reading the document. I don't know what would be the basis for admitting the document. Counsel agree and Mr. Thang has moved for its admission. It will be admitted.' RP at 696. Later, Mr. Thang moved for a mistrial, contending the trial court's ruling when it admitted Mr. Terry's plea agreement amounted to a comment on the evidence. The trial court disagreed, but stated it would instruct the jury again `on the obligation of the Court to not comment on the evidence and that they should disregard any such apparent comments entirely.' RP at 802.
A paralegal working for defense counsel testified Mr. Dietzen stated in a pre-trial interview that he did not hear Mr. Thang talk about killing anyone.
Lawrence Dusek, who was then serving time for first degree robbery, and who had spent time with Mr. Thang and Mr. Terry in the juvenile correction facility, related Mr. Terry told him that he broke into a house to raid a coin collection while Mr. Thang waited outside. According to Mr. Dusek, Mr. Terry said `he pushed this bitch down and stomped her out.' RP at 745. Mr. Dusek said Mr. Terry told him he let Mr. Thang into the house, Mr. Thang rolled the victim over with his foot, and then the two fled. Mr. Dusek also said Mr. Dietzen told him he had lied on the witness stand at a previous hearing and that Mr. Terry had asked him for help. In cross-examination, Mr. Dusek conceded he refused to speak with Detective Benavidez at a pre-trial interview because the detective `told some other people that I was a liar.' RP at 751.
Eva Piasiucha testified someone burglarized her home during the Labor Day weekend of 1997 and stole various coins, including a coin with a picture of the Pope. Detective Benavidez related the purpose of the apartment search `was for any evidence that might have been related to the homicide and clothing belonging to Simeon Terry and Vy Thang.' RP at 758. The detective agreed a number of seized items were traced back to Ms. Piasiucha's residence. The detective recalled speaking with Ms. Piasiucha regarding her missing Pope coin. The detective conceded the Pope coin found on Mr. Thang's person could have possibly come from Ms. Piasiucha's residence.
The detective showed a photocopy of two coins found on Mr. Thang's person to Mr. Klaus. `Mr. Klaus pointed to the coin of the Pope and said it might possibly belong to his mom, that she might have such a coin.' RP at 763. The detective said Mr. Klaus did not indicate to him that he had seen such a coin in his mother's purse.
David Sandvik testified in rebuttal that Mr. Terry told him the person he had escaped with killed an elderly woman. According to Mr. Sandvik, Mr. Terry insisted he was not involved in the killing.
The jury found Mr. Thang guilty as charged. At the sentencing hearing, the trial court denied Mr. Thang's motion to vacate the verdict for insufficient evidence. The court sentenced Mr. Thang to life without the possibility of parole.
Mr. Thang appealed.
ANALYSIS A. Law of the Case Rulings
The issue is whether the trial court erred in applying the law of the case doctrine when admitting evidence seized during the warrantless search of the apartment.
Both the Fourth Amendment to the United States Constitution and Article I, section 7 of the Washington Constitution `provide a bulwark against governmental intrusions into homes.' State v. Vy Thang, 145 Wn.2d 630, 635, 41 P.3d 1159 (2002).
Previously, the Supreme Court held the search of Mr. Dietzen's apartment was constitutionally valid. Vy Thang, 145 Wn.2d at 637-39. The Court reasoned the `knock and talk' rule set forth in State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998), did not apply to the search. Vy Thang, 145 Wn.2d at 636-37. Applying the `totality of circumstances' test set forth in State v. Bustamante-Davila, 138 Wn.2d 964, 981-82, 983 P.2d 590 (1999), the Court reasoned as follows:
Here, although Dietzen and Lambert were not informed of their right to refuse entry to the apartment, the police did not draw weapons or order the residents of the apartment to open the door, and the police encountered no objection to their entry. Moreover, unlike the situation in Ferrier, where the police sought a pretext to search the premises, arrest warrants were outstanding for Terry and Thang. Therefore, on balance, we conclude the search is valid.
Vy Thang, 145 Wn.2d at 637.
The Court declined to adopt the prison escapee rule relied upon by this Court. Id. Nevertheless, the Supreme Court applied `ordinary constitutional principles,' and arrived at the same conclusion as this Court: `Thang had no reasonable expectation of privacy to the areas searched.' Id.
Elaborating, the Court placed heavy emphasis on Mr. Thang's status as a guest; therefore, his hosts could vitiate his expectation of privacy by granting consent to a search of the common areas of the residence. Id. at 638-39. Noting the police found Mr. Thang's socks in the communal trash, the Court observed that `consent to search by a host is always effective against a guest within the common areas of the premises.' Vy Thang, 145 Wn.2d at 638-39 (citing 3 Wayne R. LaFave, Search and Seizure sec. 8.5(d), at 794-95 (3d ed. 1996); State v. Leach, 113 Wn.2d 735, 739, 782 P.2d 1035 (1989). `We therefore conclude that Dietzen's and Lambert's consent to the search was sufficient to render it constitutional.' Vy Thang, 145 Wn.2d at 639.
In light of the foregoing, Mr. Thang's continued reliance on Ferrier and Leach is untenable. Relying on the law of the case doctrine, the State contends the Supreme Court's holding precludes Mr. Thang's renewed challenge of the search. Mr. Thang responds mainly that the law of the case doctrine does not apply because the Supreme Court did not analyze the seizure of his shoes.
The law of the case doctrine is established both in our case law and court rules. The doctrine provides where there has been a determination of applicable law in a prior appeal, the law of the case doctrine ordinarily precludes an appeal of the same legal issue. It also provides that questions determined on appeal, or which might have been determined had they been presented, will not be considered in a subsequent appeal if there is no substantial change in the evidence at the remanded trial.
Rodriguez v. Perez, 119 Wn. App. 928, 931, 83 P.3d 1026 (2004) (citing State v. Worl, 129 Wn.2d 416, 425, 918 P.2d 905 (1996); Folsom v. County of Spokane, 111 Wn.2d 256, 263-64, 759 P.2d 1196 (1988)); see also RAP 2.5(c)(2).
Mr. Thang is correct the Supreme Court did not specifically address the seizure of his shoes in its holding. See Vy Thang, 145 Wn.2d at 638 (discussing discarded socks). The State concedes the retrial record is somewhat unclear as to the exact location of the shoes; no CrR 3.6 hearing occurred in either trial. Nevertheless, the sole reasonable inference from the retrial evidence is that the shoes were located in one of the common areas of the apartment. See Vy Thang, 145 Wn.2d at 638-39. `Anything they probably had most likely was in the livingroom.' RP at 523. And, the Supreme Court held the search of the common areas to be constitutionally valid. Vy Thang, 145 Wn.2d at 639. Under the law of the case doctrine, the Supreme Court resolved the search and seizure issue sufficiently to preclude further consideration here. See Worl, 129 Wn.2d at 426.
Even assuming a distinction and a difference between the shoes and socks, the application of the same principles reviewed by the Supreme Court in Vy Thang would lead to the same result — constitutionality based on the hosts' consent and Mr. Thang's reduced privacy rights in the common areas of the apartment, whether living room, living room closet, or communal waste basket. Vy Thang, 145 Wn.2d at 637-39.
B. Additional Grounds for Review 1. Did the trial court err in failing to recuse itself?
Mr. Thang moved to have the trial court recuse itself and renewed the motion later in the trial. In the original motion, Mr. Thang complained the trial court was biased because of a statement made during the first sentencing hearing. That statement is not in the retrial record, so it is not possible to review it at this time. RAP 10.3(a)(5). Later in the trial, Mr. Thang renewed his motion, contending generally he did not believe he would receive a fair trial.
Relying on the `personal knowledge' provisions of CJC 3(D)(1)(a), Mr. Thang mistakenly contends the trial court knew too much about the evidence disputed at the first trial. He relies on the following remark by the trial court during a colloquy on suppressing the Pope coin: `I believe that was a coin located in the home of Ms. Klaus.' RP at 208. Mr. Thang draws the statement out of context. The trial court was trying to refresh its memory, and soon clarified that the coin was found on Mr. Thang's person, `but there was testimony that it came from Ms. Klaus' house.' RP at 209. The trial court was merely making sure the participants were referring to the same coin. CJC 3(D)(1)(a) does not apply to these facts. The rule aims to deter judges from presiding over fact disputes where they have `personal' knowledge; that is, they have knowledge that would make them potential witnesses or parties, not a problem here.
2. Did the trial court unconstitutionally comment on the evidence of Mr. Terry's plea agreement?
Mr. Thang moved for a mistrial after the trial court made the following remark when admitting Mr. Terry's plea agreement in addition to his testimony: `Well, the evidence is the testimony, counsel. The witness' memory is refreshed by reading the document. I don't know what would be the basis for admitting the document. Counsel agree and Mr. Thang has moved for its admission. It will be admitted.' RP at 696.
It is constitutional error for a trial court to comment on the evidence. Const. art. IV, sec. 16; State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997); State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). `A statement by the court constitutes a comment on the evidence if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement.' Lane, 125 Wn.2d at 838 (citing State v. Hansen, 46 Wn. App. 292, 300, 730 P.2d 706, 737 P.2d 670 (1986)). `The touchstone of error in a trial court's comment on the evidence is whether the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury.' Lane, 125 Wn.2d at 838 (citing State v. Trickel, 16 Wn. App. 18, 25, 553 P.2d 139 (1976)).
The court's remark does not reflect any opinion as to the probative value of the evidence, merely the basis for its admissibility. Mr. Thang had used the document to have Mr. Terry refresh his memory; the trial court merely questioned the rationale for admitting it into evidence, but did so because the parties agreed. Viewed in its proper context, the trial court's observation was not an impermissible comment on the evidence. See State v. Swan, 114 Wn.2d 613, 657-58, 790 P.2d 610 (1990) (holding that trial court's oral ruling on doctor's qualifications for purposes of expert witness admissibility was not a personal opinion as to the veracity of the doctor's testimony).
3. Did the trial court err in admitting evidence of Mr. Thang's escape without first going through the ER 404(b) analysis set forth in State v. Lough, 125 Wn.2d 847, 881 P.2d 487 (1995)?The trial court declined to apply a Lough analysis before admitting evidence of Mr. Thang's escape. We review evidentiary decisions for abuse of discretion. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based upon untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997) (citing State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979)). Ordinarily, bad character evidence of other crimes is inadmissible. ER 404(b). Such evidence is admissible for other purposes, such as proving motive, opportunity, and intent. Id.
To admit evidence of other crimes or wrongs under Washington law, the trial court must (1) identify the purpose for which the evidence is sought to be introduced, (2) determine whether the evidence is relevant to prove an element of the crime charged and (3) weigh the probative value of the evidence against its prejudicial effect. Additionally, the party offering the evidence of prior misconduct has the burden of proving by a preponderance of the evidence that the misconduct actually occurred. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) (citations omitted).
Mr. Thang's escape falls outside the ordinary scope of ER 404(b) and the Lough factors because the State was required to prove the escape as the factual predicate for establishing an aggravating circumstance to the charged crime. RCW 10.95.020(2). Accordingly, the trial court did not abuse its discretion in admitting the evidence.
4. Did the trial court err in admitting Mr. Terry's testimony, alleged to be the fruit of prosecutorial bribery?
Mr. Thang contends Mr. Terry's testimony should not have been admitted because the prosecutor's promises bribed the witness. A plea agreement may be found invalid where the State induced the plea by threats, misrepresentation, or a promise made outside the proper scope of prosecutorial conduct, such as a bribe. See Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Here, no evidence shows any improper conduct tainted the plea agreement. See Brady, 397 U.S. at 750. Accordingly, the trial court did not abuse its discretion in admitting Mr. Terry's testimony.
5. Did the trial court err in admitting Mr. Terry's testimony, which was the fruit of alleged prosecutorial misconduct in bribing Mr. Terry?
This is a variant of Mr. Thang's bribery argument presented from a different perspective. For the reasons stated above, the argument is without merit.
6. Did the trial court err in admitting Mr. Terry's testimony, which was the fruit of witness intimidation?
Mr. Thang contends the State intimidated Mr. Terry into testifying against him. Mr. Thang reads too much into Mr. Terry's testimony that he felt intimidated in the plea bargaining process. Some degree of intimidation and fear on the part of the defendant is necessarily inherent in the plea bargaining process.
Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
Mr. Terry may have entered the plea agreement out of fear of being charged in connection with the murder. Nothing in the record suggests the State subjected him to an undue amount of pressure or that his testimony was the byproduct of police intimidation. Mr. Terry consistently asserted the same story and other witnesses corroborate his lack of involvement. Again, the trial court did not abuse its discretion.
7. Did the trial court deny Mr. Thang his constitutional right to cross-examine witnesses?
Mr. Thang argues the trial court violated his right to cross-examine witnesses when it would not allow him to ask Mr. Terry and Mr. Sandvik about their alleged joint involvement in another burglary. The trial court allowed Mr. Thang to use previous convictions to impeach Mr. Terry and Mr. Sandvik under ER 609. But the court would not allow him to explore the details of one or more convictions where Mr. Terry and Mr. Sandvik were co-defendants.
A party conducting a cross-examination under ER 609 must limit questions to the existence of the conviction, the crime underlying the conviction, and the punishment imposed. State v. Clark, 143 Wn.2d 731, 767, 24 P.3d 1006 (2001); State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996). The rule does not allow cross-examination on the detailed facts underlying the conviction. Clark, 143 Wn.2d at 767; State v. Coles, 28 Wn. App. 563, 573, 625 P.2d 713 (1981). In light of the foregoing authorities, the trial court did not abuse its discretion in restricting Mr. Thang's use of ER 609 to preclude details of the witness's convictions.
Moreover, Mr. Thang's intent was to highlight potential bias between the two witnesses against him. He did that. In cross-examination, he got Mr. Terry to admit to serving time at the juvenile facility for two burglary convictions, and then, without the prosecutor objecting, got Mr. Terry to strongly imply that Mr. Sandvik served time with him for one or more of those offenses. Overall, Mr. Thang's argument is uncompelling.
8. Did the trial court err in admitting photographs from the arrest scene that contained items not stolen from Ms. Klaus's residence?
Mr. Thang contends certain photographs taken at the arrest scene were unduly prejudicial because they showed items unrelated to the charged crime. The State moved to admit the photographs because they showed the common area of the apartment where Mr. Thang was arrested and they showed a watch allegedly stolen from Ms. Klaus's residence as well as other relevant evidence seized. In response to Mr. Thang's objection, the State promised not to reference any items in the photographs that did not allegedly link Mr. Thang to the charged crime. The court admitted the photographs. As promised, the State did not highlight any extraneous items during the relevant testimony. In light of the foregoing, the trial court did not abuse its discretion.
9. Did the trial court err in admitting after-death photographs when their prejudicial effect substantially outweighed their probative value?
Mr. Thang argues the trial court should not have admitted certain after-death photographs because they were repetitive and inflammatory. The State argued primarily that the photographs were necessary to show Ms. Klaus's injuries, particularly to her arms, and the location of her body. The State argued the photographs were necessary to counter Mr. Thang's anticipated testimony that the blood got on his clothing because he walked through it. Mr. Thang replied that he did not plan to testify. The trial court admitted the photographs as relevant and necessary.
`The decision of whether to admit photographs lies within the sound discretion of the trial court.' State v. Finch, 137 Wn.2d 792, 812, 975 P.2d 967 (1999) (citing State v. Lord, 117 Wn.2d 829, 870, 822 P.2d 177 (1991)). Gruesome photographs are admissible where their probative value outweighs their prejudicial effect. Finch, 137 Wn.2d at 812. Photographs of a victim and his or her injuries can be relevant for a number of purposes, such as proving intent and premeditation. Id. at 812-13.
Mr. Thang did not challenge Exhibit 88, which shows Ms. Klaus from her right side, with a pool of blood running from her head toward the photographer. For Exhibit 61, the photographer stood at Ms. Klaus's feet, and the photograph portrays her from her calves upward. Exhibit 86 was taken from the same angle, but shows a close-up view of Ms. Klaus's bloody and injured left arm. Exhibit 87 shows Ms. Klaus's legs protruding through a doorway between two rooms; no blood is shown in the photograph. Ms. Klaus is barefoot but otherwise fully clothed. Her lower back is partly exposed with what appears to be a small bruise in the center. She is lying face down with her right arm crossed under her body. Her left hand rests flat on the floor as if she was trying to get up when she died. None of the photographs show her face, but the hair on the left side of her head is discolored with blood.
The photographs are unpleasant, but not prejudicially gruesome. Although Exhibit 88 is arguably the most graphic photograph, Mr. Thang did not object to its admission. Exhibit 61 is relevant because it gives a better view of the extent of blood spatter to Ms. Klaus's left side. Exhibit 86 is relevant in giving a better view of Ms. Klaus's defensive injuries. And Exhibit 87, is relevant in depicting Ms. Klaus's position on the floor and also because it shows she likely did not trip and fall down. In general, the photographs are relevant to premeditation because they tend to show an extended and violent struggle resulting in the death of Ms. Klaus. Given all, the probative value of the photographs outweighs their prejudicial effect. Finch, 137 Wn.2d at 812-13. Consequently, the trial court did not abuse its discretion in admitting them. See id.
10. Did insufficient evidence of premeditation exist?
Mr. Thang contends insufficient evidence exists supporting the premeditation element. Thus, we must determine whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact would have found the elements of the charged crime beyond a reasonable doubt. Finch, 137 Wn.2d at 831. `All reasonable inferences from the evidence are drawn in favor of the State and interpreted against the defendant.' Id. (citing State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995); State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995)).
`Premeditation must involve `more than a moment in point of time,' RCW 9A.32.020(1), but mere opportunity to deliberate is not sufficient to support a finding of premeditation.' Finch, 137 Wn.2d at 831 (citing Pirtle, 127 Wn.2d at 644). Premeditation requires the mental processes of thinking beforehand, deliberating, reflecting, weighing, or reasoning for a period of time, however short, on the defendant's intent to take a human life. Finch, 137 Wn.2d at 831; Pirtle, 127 Wn.2d at 644; Gentry, 125 Wn.2d at 597-98; State v. Ortiz, 119 Wn.2d 294, 312, 831 P.2d 1060 (1992). `Premeditation may be proved by circumstantial evidence where the inferences drawn by the jury are reasonable and the evidence supporting the jury's finding is substantial.' Finch, 137 Wn.2d at 831 (citing Pirtle, 127 Wn.2d at 643; Gentry, 125 Wn.2d at 597).
The evidence, viewed in a light most favorable to the State, shows Ms. Klaus was elderly. A violent struggle occurred between Ms. Klaus and Mr. Thang. Ms. Klaus received defensive injuries to her arms. She was thrown or fell to the floor. She was then kicked to death. The blood spatters and the position of Ms. Klaus's left hand indicate she tried to raise herself from the floor during her ordeal. The progression of events from a break-in, to an assault of an elderly woman, to her murder, shows a shift in the assailant's thinking from a burglary and escape to a conscious decision to leave no living witness. The evidence was sufficient to find the murder was a premeditated act.
11. Does cumulative error exist?
Mr. Thang contends that even if no single error is reversible, the cumulative error doctrine warrants reversal. The doctrine does not apply here because Mr. Thang has `not satisfactorily demonstrated any errors to accumulate.' State v. Clark, 143 Wn.2d 731, 771, 24 P.3d 1006 (2001).
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and KATO, JJ., concur.