From Casetext: Smarter Legal Research

State v. Hacheney

The Court of Appeals of Washington, Division Two
Aug 3, 2005
128 Wn. App. 1061 (Wash. Ct. App. 2005)

Opinion

No. 29965-8-II

Filed: August 3, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Kitsap County. Docket No: 01-1-01311-2. Judgment or order under review. Date filed: 02/07/2003. Judge signing: Hon. Anna M Laurie.

Counsel for Appellant/Cross-Respondent, John L. Cross, Ness Associates, 420 Cline Ave, Port Orchard, WA 98366-4698.

Thomas E. Jr Weaver, Attorney at Law, PO Box 1056, Bremerton, WA 98337-0221.

Counsel for Respondent/Cross-Appellant, Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.


In this appeal from a conviction for aggravated premeditated first degree murder committed in the course of an arson, Nicholas Hacheney raises 29 issues. We affirm.

On December 26, 1997, Nicholas and Dawn Hacheney's house burned. A firefighter discovered Dawn, deceased, on a bed in the debris. Several propane canisters and an electric space heater were found near the bed. For the next couple of years, the fire marshal, medical examiner, and other investigators thought both the fire and Dawn's death were accidental. In 2001, however, they came to suspect foul play.

On December 29, 1997, Dr. Emmanuel Lacsina performed an autopsy. He found that although Dawn did not have soot in her trachea or lungs, she did have pulmonary edema, which can result from congestive heart failure, drowning, a drug overdose, head injury, or suffocation.

He initially thought that she had been asphyxiated when, during a flash fire, her larynx had spasmed reflexively.

During the autopsy, Dr. Lacsina collected blood and lung samples that were later tested by Egle Weiss, an employee of the state toxicology laboratory. Weiss performed the tests about ten days after the fire, at a time when she and the investigators were thinking that the fire had been accidental. She found little carbon monoxide and no propane in the lungs, no carbon monoxide in the blood, and an elevated level of Benadryl. Weiss died unexpectedly before trial.

Like the others, John Rappleye, a fire investigator for the Bremerton Fire Department, initially thought the fire was accidental. He also noted that some of the propane canisters had `vented' during the fire, and that the area around the canisters had burned more heavily than other areas in the room.

Report of Proceedings (Trial) (RP) at 1260.

On January 26, 1998, Hacheney was interviewed by Rappleye and Detective Daniel Trudeau. Hacheney said that he and Dawn had opened Christmas presents in the bedroom, that they had strewn wrapping paper around the room, and that the bedroom space heater was the only source of heat in the house. He had been duck hunting when the fire occurred.

During the summer and fall of 1997, Hacheney was having an affair with a woman named Sandra Glass. During the spring of 2001, Glass mentioned to her then-boyfriend that while she and Hacheney had been alone in the basement of their church, Hacheney had admitted giving Dawn some Benadryl and lying awake until God told him, `[G]o take something that you want.' He held a plastic bag over Dawn's head until she was no longer breathing, set the fire, and left.

RP at 2335.

In September 2001, the State charged Hacheney with first degree premeditated murder. In February 2002, the State amended its charge to allege that Hacheney, on or about the 26th day of December, 1997, with a premeditated intent to cause the death of another person, did cause the death of such person: to-wit: Dawn M. Hacheney, and furthermore, the defendant committed the murder in the course of the crime and/or attempted crime of arson in the first degree; contrary to [RCW] 9A.32.030(1)(a) and RCW 10.95.020(11)(e).[]

Clerk's Papers (CP) at 324.

In February and March 2002, the trial court held pretrial hearings to determine whether certain evidence was admissible under ER 404(b). The State offered Hacheney's alleged statements, made before the fire, that he could not wait to go to heaven because then he could have sex with whomever he wanted. The State also offered that shortly after the fire, Hacheney had begun sexual relationships with women named Latsbaugh, Anderson, and Matheson; and that at Dawn's funeral, he had given Anderson a hug of questionable propriety. Hacheney objected, but the trial court admitted. Later, at trial, the court gave the following limiting instruction:

Evidence has been introduced in this case on the subject of the Defendant's relationships with several women for the limited purposes of whether the Defendant acted with motive, intent or premeditation, or as evidence of consciousness of guilt. You must not consider this evidence for any other purpose.[]

CP at 1355.

On June 28, 2002, over Hacheney's objection, the trial court granted the State's request to take depositions from three witnesses who were planning to be in other countries at the time of trial. Two of those witnesses, Michael and Julia DeLashmutt, were moving to Scotland for three years so Michael could obtain an advanced degree. The third, David Olson, was moving for at least six months to a rural area in Bolivia. Hacheney's father asked to attend the depositions, but the trial court denied his request.

On October 1, 2002, the court held a hearing on the admissibility of testimony from Drs. Logan, Lacsina, and Selove. At the end of the hearing, the trial court indicated it would admit the offered testimony.

On October 16, 2002, a jury trial began. During voir dire, the trial court permitted the prosecutor to ask potential jurors, over Hacheney's objections, whether they could convict on circumstantial evidence if otherwise convinced that the State had met its burden of proving the case beyond a reasonable doubt.

Drs. Lacsina, Selove, and Logan all testified. Based in part on the lab report in which Weiss had described the results of her tests, Lacsina and Selove opined that Dawn had died from suffocation prior to the fire. Dr. Logan testified to being Weiss' supervisor in late 1997 and to the lab's general procedures for handling and testing blood and tissue samples. Over Hacheney's objections, the trial court admitted Exhibit 323, the report in which Weiss described her test results. No one has included Exhibit 323 in the record on appeal.

On November 18, 2002, the State informed the trial court that it had identified a new witness, Eduard Krueger, a retired employee of the manufacturer of the propane canisters found near Dawn's body. Until about a week before trial, the parties had thought the canisters had been manufactured by Coleman. A week before trial, the State had discovered that the canisters had actually been manufactured by Garrett Industries. Active Garrett employees proved reluctant to testify, so the prosecutor found Krueger, a retired Garrett employee. Hacheney objected to the late disclosure and asked that Krueger's testimony be excluded. The trial court offered a continuance so Hacheney could prepare to meet Krueger's testimony. Hacheney declined the continuance, the trial court overruled his objection, and Krueger testified.

The jury received the case on December 26, 2002. During deliberations, it submitted three written questions to the court. (1) `Would Arson be an aggravating circumstance if Dawn Hacheney was all ready dead but other people were injured by the fire. For instance the insurance company, Dawn's parents and Dawn's body.' (2) `Does malice have to be specifically w/intent to injure another person.' (3) `For Arson to be an aggravating circumstance did the fire have to result in the injury to a living person or only related to the murder, assuming Dawn Hacheney was all ready dead.' After hearing from the parties, the court responded in writing that it `will not provide further instructions in response to this inquiry. Please review the instructions provided.'

CP at 1358-60.

CP at 1358-60.

Also on December 26, 2002, the jury found Hacheney guilty of first degree premeditated murder and answered `yes' to a special interrogatory asking whether Hacheney had killed in the course of first degree arson. The trial court imposed a sentence of life without parole, and this appeal followed.

I.

Citing State v. Golladay, State v. Diebold, State v. Dudrey, State v. Leech, and State v. Brown, Hacheney claims that the evidence is insufficient to support the jury's finding that he committed the murder `in the course of' first degree arson. This is true, he says, because the evidence shows that Dawn was dead before the fire started. The State responds that Washington law requires only an `intimate connection' between the arson and the murder, and that such a connection exists here.

78 Wn.2d 121, 470 P.2d 191 (1970), overruled on other grounds, State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976).

30 Wn. App. 447, 635 P.2d 750 (1981), review denied, 96 Wn.2d 1026 (1982).

132 Wn.2d 529, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).

RCW 10.95.020(11)(e) states in pertinent part:

A person is guilty of aggravated first degree murder . . . if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a) . . . and . . . [t]he murder was committed in the course of . . . [a]rson in the first degree.

`To establish that a killing occurred in the course of, in furtherance of, or in immediate flight from a felony, there must be an `intimate connection' between the killing and the felony.' An `intimate connection' between a killing and a felony charged as an aggravating circumstance is established when the killing is `part of the `res gestae' of the felony.' A killing and an aggravating felony are part of the same res gestae where the killing occurs in `close proximity in terms of time and distance,' and there is a `causal connection' clearly established between the killing and the felony.

Brown, 132 Wn.2d at 607-08 (quoting Golladay, 78 Wn.2d at 132).

Brown, 132 Wn.2d at 608 (quoting Leech, 114 Wn.2d at 706).

Brown, 132 Wn.2d at 608 (quoting Golladay, 78 Wn.2d at 130); see also Dudrey, 30 Wn. App. at 450.

In Brown, the defendant kidnapped, robbed, and raped a woman for two days before killing her. On appeal, he argued that the evidence was insufficient to prove that he had committed first degree murder `in furtherance of' kidnap, rape, or robbery because the murder had occurred `hours' after the other felonies. Declining to read `in furtherance of' literally, and `look[ing] instead to whether the killing was part of the res gestae of the felony,' the Washington Supreme Court required a `'causal' or `intimate' connection between a killing and a related felony to establish the killing was committed in the course of, in furtherance of, or in immediate flight from the felony.' Finding that the evidence supported such a connection, the Brown court affirmed.

Brown, 132 Wn.2d at 610 (emphasis added).

Taken in the light most favorable to the State, the evidence recited above is sufficient to show that Dawn's murder was `intimately connected' with the arson, and was part of the arson's `res gestae.' Thus, the evidence is also sufficient to show that Dawn's murder was committed `in the course of' arson.

II.

Hacheney argues that the trial court should not have instructed the jury to decide whether the murder was committed `in the course of' the arson. In Instruction 12, the court told the jury:

To establish that the killing occurred `in the course of' another crime, there must be an intimate connection between the killing and the other crime. The killing and the other crime must be in close proximity in terms of time and distance. However, more than a mere coincidence of time and place is necessary: A causal connection must clearly be established between the two crimes.[]

CP at 1353.

While considering Hacheney's objections, the trial court correctly stated that, `under the circumstances of this case [Instruction 12] takes the place of the words `res gestae,' which would not be used in normal conversations, and, consequently, Instruction No. 12 is necessary.' With this one exception, the instruction followed Brown, and the trial court did not err.

RP at 4961.

III.

Hacheney argues that the trial court impermissibly commented on the evidence when, in Instruction 12, it referred to `the killing.' Jury instructions must be read as a whole and in context, and the trial court so informed the jury. Instruction 11 said that if the jury found Hacheney guilty of premeditated first degree murder, the jury must determine whether the murder was committed in the course of first degree arson. Instruction 12 said that an `intimate connection' had to be shown before `the killing' to be fully consistent with Instruction 11, Instruction 12 really should have said `the murder' could be considered to have occurred in the course of another crime. Instructions 11 and 12 were both conditioned on the jury's first finding Hacheney guilty of first degree murder, and thus neither commented on that issue.

State v. Woods, 143 Wn.2d 561, 590, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).

CP at 1341 (`You should consider the instructions as a whole and should not place undue emphasis on any particular instruction or part thereof.').

CP at 1353.

See also CP at 1342 (`The law does not permit a judge to comment on the evidence in any way. A judge comments on the evidence if the judge indicates, by words or conduct, a personal opinion as to the weight or believability of the testimony of a witness or of other evidence. Although I have not intentionally done so, if it appears to you that I have made a comment during the trial or in giving these instructions, you must disregard the apparent comment entirely.').

Because Instructions 11 and 12 were conditional, State v. Becker is distinguishable from this case. The issue in Becker was whether a particular facility was a `school,' and the trial court improperly instructed that it was. The issue here is whether Hacheney committed murder, and the trial court properly instructed that if Hacheney had committed the murder, the jury should go on to decide whether the murder was intimately connected with the arson. Instruction 12 was not an impermissible comment on the evidence.

IV.

Hacheney argues that the trial court erred by using `assault' to describe the actus reus of first degree murder. Reasoning from WPIC 26.02, he claims that the trial court should have said `drugged and suffocated,' instead of `assault.' But even if the trial court had accepted Hacheney's proposal that it say `drugged and suffocated,' it would have been describing a particular type of assault. We see no reason not to describe the assault more generally, and no prejudice to Hacheney from the trial court's having done that. The trial court had discretion to decide how its jury instructions would be worded, and it did not abuse that discretion here.

WPIC 26.02 recommends that a trial court describe the elements of premeditated first degree murder as follows:

(1) That on or about the day of, 19, the defendant (briefly describe the act charged);

(2) That the defendant acted with intent to cause the death of (name of person);

(3) That the intent to cause the death was premeditated;

(4) That (name of decedent) died as a result of the defendant's acts; and

(5) That the acts occurred in the State of Washington.

11 Washington Pattern Jury Instructions: Criminal (WPIC) 26.02, at 284 (2d ed. 1994). Instruction 7 said:
(1) That on or about the 26th day of December 1997, the defendant assaulted Dawn Hacheney;

(2) That the defendant acted with intent to cause the death of Dawn Hacheney;

(3) That the intent to cause the death was premeditated;

(4) That Dawn Hacheney died as a result of the defendant's acts; and

(5) That the acts occurred in the State of Washington. CP at 1348 (emphasis added). Instruction 8 defined `assault' as `an intentional touching or striking of another person that is harmful.' CP at 1349.

State v. Dana, 73 Wn.2d 533, 536, 439 P.2d 403 (1968); State v. Ellison, 36 Wn. App. 564, 576, 676 P.2d 531, review denied, 101 Wn.2d 1010 (1984).

Nor do we find In re Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), State v. Clark, 96 Wn.2d 686, 638 P.2d 572 (1982), or State v. Olson, 47 Wn. App. 514, 735 P.2d 1362 (1987), all cited by Hacheney, to be on point or helpful here.

V.

Hacheney argues that the trial court erred when, in response to the three questions submitted during deliberations, it told the jurors to reread the instructions they already had. According to Hacheney's argument, the instruction defining `in the course of' was ambiguous, and the ambiguity would have been clarified by additional instructions.

The doctrine of invited error bars a party from asking for an instruction, then `later complain[ing] on appeal that the requested instruction was given.' Logically extended, it also bars a party from asking a trial court not to give an instruction, then later complaining on appeal that the trial court failed to give it. In this case, Hacheney asked the trial court to tell the jury `[t]hat you have the instructions; you should reread them.' He also said that he did not object to the trial court's telling the jury, `The Court will not provide further instructions in response to this inquiry. Please review the instructions provided.' The court acted as Hacheney asked it to, and he may not now claim error on that basis.

State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (quoting State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (emphasis omitted from original)).

Report of Proceedings: Jury Inquiry (RPJ) at 3.

RPJ at 9.

VI.

The closest question in this case is whether the trial court, before permitting the use of Olson's and the DeLashmutts' depositions at trial, properly found that the State made good faith efforts, through `process or other reasonable means,' to obtain their presence at trial. Hacheney contends that when the trial court admitted the three witness' pre-trial depositions in lieu of their live testimony, it violated his Sixth Amendment right to confront the witnesses against him.

The Sixth Amendment provides that the accused shall enjoy the right to confront the witnesses against him. It bars the use of a witness' deposition unless the witness was previously cross-examined and is unavailable at the time of trial despite the State's good faith efforts to obtain his or her presence `by process or other reasonable means.'

ER 804(a)(5); Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Mancusi v. Stubbs, 408 U.S. 204, 210-213, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972); Barber v. Page, 390 U.S. 719, 723-25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968).

Whether a witness is unavailable despite the State's good faith efforts to obtain his or her presence is a question of preliminary fact that the trial court decides under ER 104(a). The trial court considers all the facts and circumstances according to a preponderance of the evidence, and we reverse only if the record does not support its decision.

State v. Allen, 94 Wn.2d 860, 866, 621 P.2d 143 (1980) (pre-rules trial; `question of `unavailability to testify at trial' is one of fact to be determined by the trial judge').

State v. Aaron, 49 Wn. App. 735, 740, 745 P.2d 1316 (1987) (`Whether the State has made a sufficient effort to satisfy the good faith requirement of ER 804 is a determination that necessarily depends on the specific circumstances of the case and rests largely within the discretion of the trial court.').

ER 104(a); Bourjaily v. United States, 483 U.S. 171, 176, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987); Condon Bros., Inc. v. Simpson Timber Co., 92 Wn. App. 275, 285-89, 966 P.2d 355 (1998); State v. Pinnell, 311 Or. 98, 114, 806 P.2d 110 (Or. 1991); Advisory Committee's Note to FRE 104(a), 56 F.R.D. 183, 197 (1973).

See State v. DeSantiago, 149 Wn.2d 402, 411, 68 P.3d 1065 (2003).

In State v. Aaron, the defendant was charged with burglary. He failed to appear in court as scheduled, but was arrested and arraigned ten days later. At his arraignment, the State moved to depose the key eyewitness, who wanted to leave for England the next day. The court granted the motion and the deposition took place that same afternoon, over defense counsel's objection that he had had the case only an hour and a half and was not prepared. When the witness failed to appear at trial, the State moved to admit the deposition, and the trial court granted the motion. Emphasizing that the State had made `no effort' to procure the witness' return for trial, Division One reversed.

Aaron, 49 Wn. App. at 741 (emphasis added).

In State v. Hobson, on the other hand, the defendant was charged with second degree theft. His trial was set for September 15, reset for October 3, then reset again for October 21. On October 19, the State moved to continue the October 21st trial date because a witness whom it had previously subpoenaed for trial planned to be gone on a pre-paid hunting trip. The trial court denied the motion. The State then moved to depose the witness, the trial court granted that motion, and the witness was deposed. Later, at trial, the witness failed to appear. The State then moved to admit the deposition, representing that even though the witness had remained under subpoena, `he had indicated that he would not forgo his trip to testify at Hobson's trial.' The trial court granted the motion, and Division One affirmed.

61 Wn. App. 330, 810 P.2d 70, review denied, 117 Wn.2d 1029 (1991).

The facts and circumstances here resemble Hobson more than Aaron. The State served all three witnesses with enforceable trial subpoenas before they left Washington. As far as the record shows, the State never hinted to them that they did not have to obey, or that they would not be punished if they failed to obey. Reasoning that the witnesses' depositions said or implied, `We're leaving and not coming back,' and that the prosecutor had `revealed [that] all three witnesses refused to come and refused to honor the subpoena,' the trial court seems to have inferred that the witnesses would not have returned for trial even if the State had offered to reimburse them for their reasonable travel expenses. That inference was reasonably available from the record, which as a consequence is sufficient to support findings that the State could not procure the witnesses' attendance `by process or other reasonable means' and that the State was acting in good faith.

RP at 3833.

RP at 3833.

Although we resolve this question in favor of the State, we consider it close because the State, quite inexplicably, failed to offer to pay the travel expenses that the DeLashmutts and Olson would reasonably and necessarily incur to return for trial. We might reach a different result if the record showed that the State had suggested or even hinted to a witness that the witness could ignore his or her subpoena once he or she had been deposed, for such a showing might have precluded the trial court's finding that the State had made a good faith effort to obtain the witness's attendance at trial. Because the record is devoid of such facts, however, we conclude that the trial court did not abuse its discretion.

VII.

Hacheney argues that the trial court violated his constitutional right to a public trial by not allowing his father to attend the depositions. The State responds that the depositions were not used until trial, and that the trial was open to the public.

Both the Sixth Amendment to the United States Constitution and Article I, section 22 of the Washington Constitution give an accused the right to a public trial. If that right is violated, the remedy is to reverse and remand for a new trial.

Cohen v. Everett City Council, 85 Wn.2d 385, 387, 535 P.2d 801 (1975).

State v. Rivera, 108 Wn. App. 645, 652, 32 P.3d 292 (2001), review denied, 146 Wn.2d 1006 (2002).

The federal cases help here. In United States v. Bertoli, the public was excluded as several depositions were being taken, but the testimony was later `offered into evidence at a public trial.' In United States v. Acevedo-Ramos, the public was excluded as a deposition was being videotaped, but again the testimony `aired in public, via the videotape, at trial.' In each case, the court found that the right to public trial was not violated by excluding the public from the deposition because the public had not been not excluded from the trial at which the deposition was later used.

854 F. Supp. 975, 1019 (D.N.J.), vacated in part on other grounds, 40 F.3d 1384 (3d Cir. 1994).

842 F.2d 5, 8 (1st Cir. 1988).

Hacheney also cites Lewis v. Peyton, 352 F.2d 791 (4th Cir. 1965), a case in which the trial judge failed to follow the statutory procedure for taking depositions in a criminal case. Lewis does not help here.

Here as in Bertoli and Acevedo-Ramos, the trial court excluded a citizen from depositions that were later used in a public trial that the citizen had every right to attend. Accordingly, Hacheney's right to public trial was not abridged.

VIII.

Hacheney argues that the trial court erred by admitting evidence of the sexual relationships in which he engaged shortly after Dawn's death. More specifically, he contends that the trial court abused its discretion by admitting (1) the testimony of Michael DeLashmutt that Hacheney had said he could not wait to get to heaven because then he could have sex with whomever he wanted; (2) the testimony of Latsbaugh, Anderson, and Matheson that each of them had a sexual relationship with Hacheney shortly after Dawn's death; (3) e-mails from Hacheney to Latsbaugh with sexual content; (4) the testimony of Latsbaugh that before Dawn's death, Hacheney had said that he wished he could take Latsbaugh as his wife; and (5) testimony that Hacheney inappropriately hugged a woman at Dawn's funeral.

ER 404(b) allows proof of motive. The State's theory of the case was that Hacheney was motivated to murder Dawn because he desired to pursue other women whom he knew through his church. The evidence showed motive, and its use for that proper purpose (probative value) was not substantially outweighed by the danger it might be improperly used to show a propensity to be a bad person (unfair prejudice). The trial court did not abuse its discretion.

IX.

Hacheney argues that the trial court erred by including `consciousness of guilt' in the instruction by which it limited the use of the evidence discussed in the preceding section. Even assuming error, however, we do not perceive how it could have made a difference to this case. Consciousness of guilt is a state of mind similar to motive and intent, and under the particular circumstances here it seems unlikely that the jury would have understood it to mean anything different from motive. It could not have affected the outcome of the trial, and any error was harmless `within reasonable probabilities.'

State v. Messinger, 8 Wn. App. 829, 837, 509 P.2d 382 (`conduct indicates a consciousness of guilt, an inconsistence with innocence, or the intent with which the act was committed') (quoting 1 C. Torcia, Wharton's Criminal Evidence sec. 209, at 437 (13th ed. 1972)), review denied, 82 Wn.2d 1010 (1973), cert. denied, 415 U.S. 926 (1974).

State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).

X.

Hacheney asserts that the trial court erred by allowing Drs. Lacsina, Logan, and Selove to rely on Exhibit 323, the written lab report in which Weiss described the results of her tests. Hacheney asserts that none of the doctors should have been permitted to rely on that report because it (A) was inadmissible hearsay, (B) violated his right to confrontation, and (C) was not supported by an adequate chain of custody. The State responds (A) that the report was admissible under RCW 5.45.020, Washington's business records exception to the hearsay rule; (B) that the report did not violate the confrontation clause because it was not `testimonial' within the meaning of Crawford v. Washington; and (C) that the report was supported by an adequate if not perfect chain of custody. Accordingly, we turn to those issues.

In Assignments of Error 14, 15, and 16, Hacheney asserts in his brief that `[t]he trial court erred by admitting the expert testimony of Dr. Logan, Mr. Lacsina, and Mr. Selove.' Br. of Appellant at 54; see also Br. of Appellant at 2. In his statement of the issues however, he claims that the issue is `[w]hether expert witnesses may rely on laboratory reports prepared by others, and testify as to the conclusions [of others], when the reports do not contain sufficient guarantees of trustworthiness with regard to chain of custody and do not qualify for a hearsay exception.' Br. of Appellant at 3. In the argument section of his brief, he argues in accordance with his issue statement and adds a claim that his right to confront was violated.

A.

The first question is whether Weiss' report was admissible under RCW 5.45.020. That statute provides:

A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

According to the Washington Supreme Court, this statute contains five requirements. First, the offered evidence must be in the form of a record. Second, the record must be of an act, condition, or event. Third, the record must be made in the regular course of business (and thus not primarily in anticipation of litigation). Fourth, the record must be made at or near the time of the act, condition or event. And fifth, the trial court in its discretion must believe that the sources of information and the method and time of preparation justify admission.

State v. Kreck, 86 Wn.2d 112, 118, 542 P.2d 782 (1975).

The Washington Supreme Court has applied these requirements to facts like those here. In State v. Kreck, the defendant's wife was found dead. The police received information that the defendant had bought chloroform to use while robbing her. The medical examiner in Spokane forwarded to the state toxicology lab in Seattle a blood sample from the wife's autopsy, asking that it be tested for chloroform. The head of the state lab, Dr. Loomis, directed a qualified lab employee named Skinner to do the test, and Skinner reported in writing, `Test: chloroform; Result: 26.0 mg%.' Skinner was in Germany during the defendant's trial for murder, so the State offered his written report after having Loomis testify to how the test was conducted, how the report was prepared, and to Loomis' own role as supervisor. The trial court admitted the report, and the Supreme Court affirmed, holding that the requirements of RCW 5.45.020 had been met.

Kreck, 86 Wn.2d at 114.

In State v. Rutherford, the defendant asked the Air Force to test a product that he wanted the Air Force to buy. Hopkins did some of the testing, which he reported to his supervisor, Spellman, and which Spellman incorporated into a report that Spellman wrote. Hopkins had a stroke before trial and thus could not testify. At trial then, the State asked that Spellman be `allowed to testify concerning reports made to him by Mr. Hopkins and others in the laboratory.' The defendant objected on hearsay grounds, claiming that Spellman had `not personally conduct[ed] the tests,' that he `could not be cross-examined on the procedures followed,' and that he lacked `knowledge concerning what [had been] done.' The trial court overruled, and the Washington Supreme Court affirmed. According to the Supreme Court, `the trial court did not abuse its discretion in permitting [Spellman] to give the results of tests performed under his supervision and control, even though he did not personally conduct the tests or witness their performance.'

Rutherford, 66 Wn.2d at 852-53.

Rutherford, 66 Wn.2d at 853.

Rutherford, 66 Wn.2d at 855.

In State v. Ecklund, the defendant was charged with murder. At trial, the State presented the testimony of a blood expert named Boughton. As an employee of the FBI laboratory, Boughton relied in part on the summary reports and lab work sheets that related the results of blood tests done on the defendant's shoes `by a technician working under [Boughton's] supervision and control and recorded on laboratory work sheets.' The defendant claimed `that because Boughton did not personally perform the laboratory tests, his testimony [was] inadmissible hearsay and its admission denied defendant his constitutional right of confrontation.' Although neither the summary report nor the lab work sheets had been offered into evidence, this court stated in dictum that they `would have been admissible under RCW 5.45.020 had they been offered into evidence.'

Ecklund, 30 Wn. App. at 317.

Ecklund, 30 Wn. App. at 317.

Ecklund, 30 Wn. App. at 319 (emphasis added). State v. Nation, 110 Wn. App. 651, 41 P.3d 1204 (2002), review denied, 148 Wn.2d 1001 (2003), contains similar dictum. Although the question in Nation was the admissibility of an expert's oral opinion, and not the admissibility of a business record, Division Three commented, based in part on Ecklund's dictum, that if the question were the admissibility of a business record, the record it was hypothesizing would not be admissible. Nation, 110 Wn. App. at 665-66.

Together, these cases allow a laboratory employee to relate his or her personal knowledge of how the lab generally conducts its tests, and the trial court to infer that the particular tests in question were done in the same way. These cases also show that testing by a state laboratory is sometimes done in the regular course of the laboratory's business, and not solely in anticipation of litigation.

This same idea is embodied in ER 406.

In this case, the trial court had discretion to infer from Dr. Logan's testimony that he had personal knowledge of the way in which the lab generally conducted its tests, and that Weiss, an employee of the state lab, conducted her tests in accordance with those procedures. The trial court had discretion to infer from evidence showing that Weiss conducted her tests while the fire was thought to be accidental, and more than two years before any criminal suspicion arose, that Weiss was not acting in anticipation of litigation. It is undisputed that Weiss' report was a business record, that she was working under a business duty to her employer when she prepared it, and that she was describing an act, condition or event at or near the time of its occurrence. The trial court had discretion to conclude that the sources of information, method and time of preparation were trustworthy. Accordingly, we hold that all the requirements of RCW 5.45.020 had been met, and that Exhibit 323 was properly admitted.

B.

The next question is whether the admission of Weiss' report under RCW 5.45.020 violated Hacheney's Sixth Amendment right to confront the witnesses against him. In general, the Sixth Amendment insures that every accused shall enjoy the right to confront the witnesses against him. In Crawford v. Washington, the United States Supreme Court held that the Sixth Amendment's confrontation clause applies only when a witness' statement is `testimonial.' The Court declined `to spell out a comprehensive definition of `testimonial,'' but it said that the term at least applies `to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.' The Court also said that the term does not apply to most of the common law's hearsay exceptions `for example, business records or statements in furtherance of a conspiracy.'

Crawford, 541 U.S. at 51.

Crawford, 541 U.S. at 68.

Crawford, 541 U.S. at 56.

Assuming without holding that an employee of Washington's toxicology laboratory can sometimes make a `testimonial' statement within the meaning of Crawford, Weiss did not do so here. She made her statements while she, the investigating officers, and the medical examiner all thought the fire was accidental. She made her statements more than two years before any criminal suspicion arose and before any criminal investigation was started. As she was merely performing her duty to her employer in the course of the lab's regular routine, her report was not `testimonial,' and its admission did not violate Hacheney's right to confront witnesses.

C.

We do not overlook Hacheney's argument that Weiss' lab report did not have `sufficient guarantees of trustworthiness with regard to chain of custody' on the blood and lung-tissue samples. When an item is offered as an exhibit in court, or when it is merely referred to in a business record, the chain of custody need not be perfect, though it must be sufficient. The record in this case shows that Dr. Lacsina took blood and lung-tissue samples during the autopsy; that a deputy coroner named Zink packaged the samples and, inferentially, delivered them to an employee of the state lab named Case; and that the samples were thereafter subject to the lab's internal procedures as described by Dr. Logan. Like Lacsina and Weiss, Zink and Case were professionals acting under their own business duties to their employers. `[B]eyond mere speculation and innuendo, there is not the least indication in the evidence that the questioned exhibits were anything other than what they were represented to be or that they were contaminated in the course of their journey to the testing laboratory.' Even though Zink and Case did not testify, the trial court had discretion to infer they acted reliably and trustworthily, leaving any defect for the parties to argue to the jury as a matter of weight.

Br. of Appellant at 3.

ER 901(a) (`requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims'); United States v. Smith, 308 F.3d 726, 739 (7th Cir. 2002) (perfect chain of custody is not prerequisite to admission); United States v. Humphrey, 208 F.3d 1190, 1205 (10th Cir. 2000) (chain of custody need not be perfect); United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988) (`government need not prove a perfect chain of custody for evidence to be admitted at trial'); State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985); State v. Roy, 126 Wn. App. 124, 130, 107 P.3d 750 (2005); State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002); State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336, review denied, 136 Wn.2d 1021 (1998); State v. DeCuir, 19 Wn. App. 130, 135, 574 P.2d 397 (1978); State v. McGinley, 18 Wn. App. 862, 866-67, 573 P.2d 30 (1977).

The record does not show, however, that the blood or tissue samples were ever marked for identification or offered as exhibits.

See, e.g., RP at 1535.

State v. Boehme, 71 Wn.2d 621, 638, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013 (1968).

Kreck, 86 Wn.2d at 118-19; Boehme, 71 Wn.2d at 638; Rutherford, 66 Wn.2d at 855.

XI.

Hacheney argues that the State tardily disclosed Krueger as an expert witness, that the trial court was required to exclude his testimony, and that the trial court erred by not doing that. A trial court has broad discretion when ruling on a discovery violation, and we review its ruling only for abuse of that discretion.

State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981).

Until about a week before trial, the State did not know that the propane canisters had been manufactured by Garrett rather than Coleman. After discovering that fact and finding that Garrett's active employees were unwilling to testify, the State located Krueger, a retired Garrett employee. The State disclosed Krueger's identity and summarized his testimony as soon as it knew about him. The trial court offered a continuance to give Hacheney time to prepare, but Hacheney declined. The trial court had discretion to allow Krueger to testify, and it did not abuse that discretion by ruling that he could.

XII.

Citing State v. Bokien and Handshy v. Nolte Petroleum Co., Hacheney argues that the trial court erred by allowing the prosecutor to ask during voir dire: `If you heard the case and it was based largely upon circumstantial evidence, but you were convinced beyond a reasonable doubt, do you think you could convict based upon that evidence?'

14 Wash. 403, 44 P. 889 (1896).

421 S.W.2d 198 (Mo. 1967).

Report of Proceedings: Voir Dire at 356.

A trial court has broad discretion in determining the scope and extent of voir dire. `Absent an abuse of discretion and a showing that the accused's rights have been substantially prejudiced thereby, the trial judge's ruling as to the scope and content of voir dire will not be disturbed on appeal.'

State v. Davis, 141 Wn.2d 798, 826, 10 P.3d 977 (2000); see also CrR 6.4(b).

State v. Frederiksen, 40 Wn. App. 749, 752-53, 700 P.2d 369, review denied, 104 Wn.2d 1013 (1985).

Bokien does not support Hacheney's position. It held that the trial court had discretion to reject such a question, a proposition not involved here. It did not hold that the trial court lacked discretion to allow such a question, as Hacheney now asserts.

Nor does Handshy support Hacheney's position. Although the question asked there was similar to the one asked here `If the law and the evidence shows you Mr. Handshy is not entitled to recover, are there any of you who couldn't give a verdict for the defendant?' the court held that it did not warrant reversal, a conclusion with which we agree. The question asked here called for an answer so obvious as to be virtually meaningless, and we cannot say that the trial court abused its discretion by allowing it.

Handshy, 421 S.W.2d at 200.

XIII.

Hacheney argues that the trial court erred by allowing Scott Nickell and Allison LeGedre to testify that Sandra Glass had told them, outside of court, that Hacheney had told her that Hacheney had killed Dawn. The State responds that Hacheney implied during his cross-examination of Glass that she was fabricating her story in exchange for immunity from prosecution, and thus that her prior statements were admissible under ER 801(d)(1)(ii).

According to ER 801(d)(1)(ii), a prior consistent statement is not hearsay if the declarant testifies at trial and the statement is relevant `to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.' To rebut such a charge, a statement must be made before the charge. Thus, the questions here are whether Hacheney expressly or impliedly charged Glass with fabrication, and whether the fabrication was `recent' because it came after the offered statement.

Tome v. United States, 513 U.S. 150, 157, 115 S. Ct. 696, 130 L. Ed. 2d 574 (1995).

Hacheney elicited from Glass that when she met with law enforcement officials, the first thing she did was `negotiate this immunity agreement' that gave her `absolute immunity from prosecution for anything [she] might have told the investigator's throughout this investigation.' A motive to fabricate arguably arose at that time, and Glass' statements to Nickell and LeGedre were made before that time. Accordingly, the trial court properly admitted Nickell's and LeGedre's testimony concerning Glass's prior statement.

RP at 2368-69.

XIV.

Hacheney argues that the trial court erred by refusing to allow Hacheney to ask Glass about Nickell's marital status at the time Nickell and Glass began a sexual relationship. The State responds that Nickell's marital status was irrelevant. Agreeing with the State and the trial court, we hold that Nickell's marital status long before trial was not relevant.

XV.

Pro se, Hacheney makes two assertions regarding preservation of the blood and lung tissue samples. First, he claims that the State failed to prove that the samples were preserved in accordance with WAC 448-14-020(3)(b). By its terms, however, WAC 448-14-020(3)(b) applies to blood alcohol analysis, a matter not relevant here. Second, he claims that the State failed to prove that the blood and tissue samples were properly collected, stored, and tested. As discussed in Section X, however, Dr. Logan's testimony regarding the state laboratory's general procedures for collecting, storing, and testing blood and tissue provided a basis to reasonably infer that the samples in issue here were handled in the same way.

XVI.

Hacheney contends that the trial court erred `by allowing the State to present volumes of phone records and summary charts that were not authenticated.' ER 901(a) provides that `[t]he requirement of authentication or identification . . . is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.' At trial, the State called Horacio Delgado, the manager of Qwest's business office. He identified the records and explained how they had been maintained. This was enough to support inferences that the records were what they purported to be and that the records had not been altered. Hence, it was also sufficient to authenticate under ER 901.

Appellant's Statement of Additional Grounds (SAG) at 4.

See also State v. Payne, 117 Wn. App. 99, 106, 69 P.3d 889 (2003) (ER 901 satisfied by `sufficient proof to permit a reasonable juror to find in favor of authenticity or identification'), review denied, 150 Wn.2d 1028 (2004).

Campbell, 103 Wn.2d at 21.

XVII.

Hacheney claims that summary charts were improperly authenticated and that Richard Kitchen, the investigator who authenticated them, was improperly allowed to testify as an expert. Under ER 1006, `[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.' The proponent must show that (1) the original materials are voluminous and an in-court examination would be inconvenient, (2) the originals are authentic and the summary accurate, (3) the underlying materials would be admissible as evidence, and (4) the originals or duplicates have been made available for examination and copying by the other parties.

State v. Barnes, 85 Wn. App. 638, 662-63, 932 P.2d 669, review denied, 133 Wn.2d 1021 (1997).

5C Karl B. Tegland, Washington Practice: Evidence Law and Practice sec. 1006.3, at 271 (4th ed. 1999) (citing Needham v. White Labs., Inc., 639 F.2d 394 (7th Cir.), cert. denied, 454 U.S. 927, (1981); United States v. Scales, 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946 (1979)).

State v. Kane, 23 Wn. App. 107, 110-11, 594 P.2d 1357 (1979).

ER 1006.

These factors were met here. At trial, Hacheney did not object to factor one or factor four. Factor two was met because Delgado properly authenticated the phone records and Kitchen properly explained how he had prepared the summary charts. Factor three was met because the charts were relevant and, if hearsay, within the business records exception to the hearsay rule.

Nor did Kitchen improperly testify as an expert. `Every opinion must be based on knowledge.' Lay opinion must be based on personal knowledge and expert opinion must be based on scientific, technical, or specialized knowledge. Kitchen merely explained, based on his personal knowledge, how he had collected the relevant phone records and summarized them into the charts that the State then offered. He did not give expert testimony, and Hacheney's objection on that ground was correctly overruled.

State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003); State v. Kunze, 97 Wn. App. 832, 850, 988 P.2d 977 (1999), review denied, 140 Wn.2d 1022 (2000).

XVIII.

Hacheney argues that the trial court erred by permitting the jury to have Kitchen's summary charts in the jury room during deliberations. Based on State v. Lord, we hold that the trial court did not err.

117 Wn.2d 829, 856 n. 5, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992).

XIX.

Hacheney argues that the trial court erred by not sending to the jury room CD-ROMs with computerized simulations of the fire. CrR 6.15(e) provides that the `jury shall take with it . . . all exhibits received in evidence.' Notwithstanding this wording, however, the decision to allow exhibits to go into the jury room lies within the sound discretion of the trial court. Here, the trial court said it would address the jury's request to play the CD-ROMs if and when one was ever made. No request was ever made, and we perceive no abuse of discretion.

State v. Frazier, 99 Wn.2d 180, 189, 661 P.2d 126 (1983); State v. Strandy, 49 Wn. App. 537, 542, 745 P.2d 43 (1987), review denied, 109 Wn.2d 1027 (1988).

XX.

Hacheney argues that the trial court erred because the bailiff communicated with the jury in two instances. During the trial, Juror No. 8 sent the court a note asking (1) why one of the State's witnesses had been permitted to be present in court during another witness' testimony; and (2) why one of the State's witnesses was allowed to testify over a hearsay objection when other witnesses were not. After discussing the note with the parties, the trial court decided not to respond and instructed the bailiff to inform Juror No. 8.

During deliberations, the same juror, No. 8, asked for an exhibit list. The parties agreed on a list that the bailiff gave to the jury. The trial court stated that `[w]hen the jury was handing [the bailiff] their earlier inquiry, they also said something to the effect to her, `Do we have all of the admitted exhibits?' And she said, `You have everything you're supposed to have,' and I assume that was the end of their inquiry.'

RP at 5190.

`A bailiff is forbidden to communicate with the jury during deliberations except to inquire if it has reached a verdict, or to make innocuous or neutral statements.' If a bailiff improperly communicates, however, the error will be deemed harmless if the record demonstrates the absence of prejudice beyond a reasonable doubt. Assuming without finding error here, the record plainly shows the absence of prejudice beyond a reasonable doubt. Hence, this argument fails.

State v. Johnson, 125 Wn. App. 443, 460, 105 P.3d 85 (2005).

State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997); State v. Caliguri, 99 Wn.2d 501, 508-09, 664 P.2d 466 (1983).

State v. Johnson, 56 Wn.2d 700, 709, 355 P.2d 13 (1960), cert. denied, 366 U.S. 934 (1961).

XXI.

Hacheney argues that the trial court erred by admitting a photo of a plastic bag and testimony concerning its contents. As he did not object at trial, he has not preserved this issue for review.

See RAP 2.5(a).

XXII.

Hacheney argues that the trial court erred by permitting Robert Bily, Robert Smith, Ron McClung, and Carol McClung to testify about a church meeting held several months after Dawn's death. Earlier in the trial, however, he had suggested that Bily was so biased against him as to cause him to leave the church. The trial court had discretion to allow the State to explain Bily's bias, and the court did not abuse that discretion here.

State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969) (`when a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced'); Ang v. Martin, 118 Wn. App. 553, 562, 76 P.3d 787 (2003), aff'd, ___ Wn.2d ___, 114 P.3d 637 (2005); State v. Horton, 116 Wn. App. 909, 917-18 n. 26, 68 P.3d 1145 (2003).

XXIII.

Hacheney argues that the trial court should not have admitted an in-life photo of Dawn because the defense had offered to stipulate to her identity. A single in-life photograph is not inherently prejudicial, `especially when the jury also sees after death pictures of the victim's body.' Nor must the State accept a defendant's offer to stipulate to the identity of the victim. Given that the jury in this case saw several `after death' pictures, and that the trial court admitted a single four-by-six inch in-life picture, we perceive no abuse its discretion.

State v. Brett, 126 Wn.2d 136, 159, 892 P.2d 29 (1995) (quotations omitted), cert. denied, 516 U.S. 1121 (1996).

XXIV.

Hacheney argues that the trial court erred by allowing Sandra Glass to speculate about a `prophecy' that she had discussed with Hacheney. Glass testified that about a week before the fire, while she and Hacheney were praying in the sanctuary of their church, she thought, `Your hands are no longer tied.' She related her thought to Hacheney, whose non-verbal response was `Accepting. Okay.'

RP at 2298.

RP at 2299.

ER 701 permits lay opinion when rationally based on the witness' perception and helpful to a clear understanding of the testimony or issue. These criteria were met here, and the trial court did not err.

See also State v. Stenson, 132 Wn.2d 668, 724, 940 P.2d 1239 (1997) (citing State v. Craven, 69 Wn. App. 581, 586, 849 P.2d 681, review denied, 122 Wn.2d 1019 (1993)), cert. denied, 523 U.S. 1008 (1998); State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988).

XXV.

Hacheney contends that his Sixth Amendment right to confront witnesses was violated because the trial court prevented him from questioning Glass about a `prophecy' in which God spoke to her about killing her own husband. By virtue of the Sixth Amendment, an accused has a right to cross-examine witnesses `to elicit facts which tend to show bias, prejudice or interest . . . but the scope or extent of such cross-examination is within the discretion of the trial court.' A trial court can reject or limit cross examination if the circumstances only remotely tend to show the witness' bias or prejudice.

State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980).

State v. Kilgore, 107 Wn. App. 160, 185, 26 P.3d 308 (2001), aff'd, 147 Wn.2d 288 (2002).

Before trial, Glass disclosed that she had received a `prophecy' that her husband was going to die, as well as a `prophecy' about a specific way to kill him. She received the first prophecy before Dawn's death, and the second one after Dawn's death. The trial court permitted cross-examination on the first but not the second, and Hacheney's counsel agreed to `leave [the second] out.'

RP at 2157.

The second `prophecy' was minor and inconsequential, given that Glass was fully cross-examined about her marriage, her marital problems, and various other `thoughts' and `prophecies' in which she visualized her husband's death. Its exclusion did not affect the fairness of the trial, and the trial court did not err.

XXVI.

Hacheney argues that the State did not establish the corpus delicti of homicide or arson. To prove corpus delicti, the State must produce evidence other than the accused's confession that is sufficient to show that a criminal act occurred through human agency. Those requirements were amply met here with respect to both murder and arson, and there was no error.

State v. Pineda, 99 Wn. App. 65, 76-77, 992 P.2d 525 (2000); State v. Flowers, 99 Wn. App. 57, 59-60, 991 P.2d 1206 (2000).

XXVII.

Hacheney argues that the trial court erred by not giving a limiting instruction, sua sponte, on how the jury could properly use the State's ER 404(b) evidence. The trial court gave a limiting instruction, but even if it had not, ER 105 expressly provides that the trial court shall give a limiting instruction `upon request' by a party. The court did not err.

XXVIII.

Hacheney argues that the trial court erred by permitting Scott Roberts, a fire investigator employed by an insurer, to testify to autopsy results that were not within the scope of his expertise. But rather than testifying about autopsy results, Roberts testified that (1) he disagreed with the part of the autopsy report that concluded Dawn died as result of a flash fire because, in Roberts' opinion, there was no evidence of a flash fire; and (2) based on his prior experience and knowledge about propane, the autopsy report's findings regarding the absence of propane were significant because `there should have been [propane] present,' considering the distance between the propane canisters and a heater. The trial court did not err.

RP at 3588.

XXIX.

Hacheney asserts that the prosecutor committed misconduct in opening statement and closing arguments. Absent a timely objection, a defendant's challenge to an allegedly improper remark by opposing counsel is waived unless the remark was `so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' `The absence of a motion for mistrial at the time of the argument strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial.' We review misconduct claims in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given.

State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (quoting Stenson, 132 Wn.2d at 719), cert. denied, 528 U.S. 922 (1999).

State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).

State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).

Hacheney argues that the prosecutor made `numerous inflammatory and erroneous statements during opening argument which were never testified to.' A prosecutor is permitted to outline `anticipated material evidence' in his or her opening statement so long he or she believes in good faith that such testimony will be forthcoming. Here, Hacheney has not shown that the prosecutor did not have a good faith belief that the described testimony would be produced.

SAG at 37 (emphasis omitted).

Campbell, 103 Wn.2d at 15-16; State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211 (1983).

Hacheney argues that the prosecutor misstated scientific and medical facts in opening and closing arguments. Hacheney did not object, and the statements are supported by the record.

Hacheney argues that the prosecutor injected inadmissible testimony when, in closing, he asserted that Nickell told Hacheney on the phone, `You better not call Sandy Glass, and you better go to the authorities. I know what you did.' Hacheney did not object, and those two sentences were not so flagrant and ill-intentioned that a curative instruction would not have been effective.

RP at 5170.

Hacheney argues that the prosecutor misrepresented the time at which Hacheney went hunting with friends on the day of fire, and also whether Glass had received a copy of the autopsy report. Hacheney's counsel objected, the trial court gave a curative instruction, and the problem was so minor that the instruction was necessarily effective.

Hacheney argues that the prosecutor made remarks during rebuttal that were not really rebuttal, and that the prosecutor personally vouched for Glass' credibility. In our view, however, the prosecutor was rebutting the arguments concerning Glass' credibility that defense counsel had advanced in the defense closing argument.

Arguments not discussed are meritless or need not be reached.

Affirmed.

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.

QUINN-BRINTNALL, C.J. and VAN DEREN, A.C.J., concur.


Summaries of

State v. Hacheney

The Court of Appeals of Washington, Division Two
Aug 3, 2005
128 Wn. App. 1061 (Wash. Ct. App. 2005)
Case details for

State v. Hacheney

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. NICHOLAS DANIEL HACHENEY, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Aug 3, 2005

Citations

128 Wn. App. 1061 (Wash. Ct. App. 2005)
128 Wash. App. 1061

Citing Cases

State v. Hacheney

¶13 Hacheney appealed, raising numerous issues. State v. Hacheney, noted at 128 Wn. App. 1061, 2005 Wash.…

In re l Hacheney

¶ 11 On direct appeal, Hacheney raised 29 issues. State v. Hacheney, noted at 128 Wash.App. 1061, 2005 WL…