Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-00426-5. Judgment or order under review. Date filed: 09/07/2001.
Counsel for Appellant(s), Brett Andrews Purtzer, Attorney at Law, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405-4850.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Lawrence P. Shandola appeals his conviction of first degree murder, claiming that the 64 month interval between the homicide and the State's filing charges against him created prejudicial preaccusatorial delay. He also alleges that the court erred in admitting evidence acquired through an illegal search and in violation of his right against self incrimination; in denying his request for a bill of particulars; in allowing discovery violations; in ruling on the admission of evidence; and in denying a post judgment motion. Finding no prejudicial error, we affirm.
At about 5:40 p.m. on September 11, 1995, Robert Henry was shot multiple times at close range in a parking lot outside of his office by an unidentified shooter. Henry died of his wounds. Many witnesses heard the shooting and several observed a suspect wearing dark clothing and a mask; the suspect immediately left the parking lot on a black motorcycle.
Upon learning of the homicide, Paula Henry, Henry's wife, called police and identified Shandola, her co-worker and Henry's former business partner, as a possible suspect. The police questioned Shandola that evening on the front porch of his home. Shandola denied knowledge of the homicide, stating that he had been repairing his house all day.
Near the same time, police found shotgun shells at the crime scene. And in April 1998, a shotgun was found under blackberry bushes on a hill near the parking lot where Henry died. The State linked the shotgun to the crime scene, but it could not directly connect the weapon to Shandola.
Before the police completed their investigation, two potential witnesses died. Jason Graham, who had provided the police with a description of a car parked near the crime scene, died in a car accident in August 1996. And Roscoe Buffington, who had told police about seeing Shandola at his home on the day of the crime, died in July 1998.
On January 23, 2001, the State charged Shandola with first degree murder for Henry's homicide. The trial court denied Shandola's motions to suppress evidence and to dismiss the charge based on alleged discovery violations, and the matter proceeded to trial on July 2, 2001. Sixty four State witnesses and eighteen defense witnesses testified.
James Graham, Jason Graham's father, testified about the silver blue Mercedes that he and his son had observed near the crime scene in the early afternoon of Henry's murder, a vehicle that was very similar in appearance to the Mercedes Shandola owned. Henry's widow and his former acquaintances described the conflict between Shandola and Henry that arose out of their former business partnership. The dispute between Henry and Shandola culminated in a 1993 New Year's Eve altercation where Shandola punched Henry. Henry later sued Shandola, seeking a judgment to recover his medical damages.
Some of Shandola's co-workers testified that soon after the homicide, Shandola offered to sell them a shotgun and another co-worker who had cooperated with the police investigation testified that Shandola had threatened him. Paula Henry testified that she had obtained a restraining order against Shandola for harassing her after Henry's death.
Shandola presented an alibi defense, asserting, contrary to his earlier statement to the police, that he was at the home of a friend, Reta Peck, at the time of the murder. The jury rejected the defense and found Shandola guilty as charged. The court then denied Shandola's motion for arrest of judgment or, alternatively, for a new trial and, instead, sentenced him to 380 months in prison.
ANALYSIS I. Preaccusatorial Delay
Shandola first argues that the State's delay in charging him severely prejudiced his right to a fair trial because of the deaths of Buffington and Jason Graham in the intervening period. He claims that those two witnesses could have provided evidence that would have supported his alibi defense and that `no meaningful investigation [of Henry's murder] occurred after October, 1998.' Br. of Appellant at 67.
Preaccusatorial delay can violate due process protections. When considering whether such a violation occurred, the court must consider: (1) prejudice to the defendant's right to a fair trial; (2) the reasons for the delay; and (3) if the State can justify the delay, balancing prejudice to the defendant against the State's reason for the delay. United States v. Lovasco, 431 U.S. 783, 97 S. Ct 2044, 52 L.Ed.2d 752 (1977); State v. Rohrich, 149 Wn.2d 647, 657-58, 71 P.3d 638 (2003) (discussing State v. Norby, 122 Wn.2d 258, 858 P.2d 210 (1993)). If the defendant fails to show prejudice — the first required showing — we need not continue our analysis. Norby, 122 Wn.2d. at 263-64.
The State has broad discretion in deciding when to file criminal charges; a defendant's `mere allegation that witnesses are unavailable or that memories have dimmed is insufficient' to satisfy the prejudice requirement. Norby, 122 Wn.2d. at 264. Consequently, the court will rarely find prejudicial preaccusatorial delay absent fundamental or egregious circumstances. See State v. Dixon, 114 Wn.2d 857, 861, 792 P.2d 137 (1990) (prejudicial preaccusatorial delay occurred when the delay caused the court to lose juvenile jurisdiction). We review the trial court's prejudice analysis under a manifest abuse of discretion standard. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).
Here, the jury had an opportunity to evaluate Shandola's central alibi defense, that he was at Reta Peck's home at the time of Henry's murder, by hearing both Peck's and Shandola's testimony. And Shandola has not shown substantial prejudice from his inability to present testimony from Buffington or from Jason Graham.
As to Buffington, the record merely shows that he could have testified that he saw Shandola at home at about 1:00 p.m., about four hours before the murder. This fact was not in dispute and this evidence came in through Shandola, who testified that he had been home working on his house the afternoon of Henry's homicide. The mere showing of the inability to present testimony corroborating a fact not in dispute is insufficient to establish prejudice.
Shandola has not provided an affidavit from Buffington's wife, who was alive during the trial, interviewed by detectives at the same time as her husband, and could have provided more details about her husband's statements.
As to Jason Graham, the record shows that he observed the Mercedes near the crime scene along with his father, James Graham. Although it appears that much of Jason's testimony would have duplicated his father's testimony, the jury did not hear about Jason's later observations of Shandola's vehicle and Jason's comparison of it to the Mercedes parked near the crime scene.
Jason made two statements to police about a Mercedes. One statement was tape recorded and one was not. These statements raise hearsay issues that we discuss in Section V below.
Although this testimony may have been helpful to rebut the inference that Shandola's car was near the crime scene earlier during the day of the homicide, this is speculative. Apparently Jason would have acknowledged that both cars were Mercedes, both were blue, and both had a dent in the body. But when Jason saw Shandola's car nine days later, he noted slight differences that led him to believe that they were different cars. His father, James Graham, did not note these differences.
In any event, this testimony does nothing to support Shandola's alibi defense that at the time of the shooting, he was at Peck's home. Thus, Shandola has not met the high evidentiary standard necessary to establish actual prejudice in the preaccusatorial delay context. See Rohrich, 149 Wn.2d at 657 (defendant must show actual prejudice, not rely on speculative evidence such as witness memories that `could have faded').
Because the trial court denied Shandola's motion to dismiss for preaccusatorial delay based on the absence of prejudice, it did not move to step two and analyze the reasons for the charging delay. We note, however, that the State did not recover the murder weapon until after Jason Graham's death. The absence of this key piece of evidence, along with the absence of an eye witness who could identify the shooter, clearly supports the decision to delay charging. Given these circumstances, we find it unlikely that the trial court would have found the charging delay to be an abuse of the prosecutor's broad discretion or so egregious as to warrant dismissal. Further, prosecutorial delay in filing criminal charges often is in a potential defendant's best interest. As the Washington Supreme Court stated in Norby:
Forcing prosecutors to proceed precipitously may waste scarce resources on cases in which the defendant's guilt cannot be established beyond a reasonable doubt. More devastating, however, is the risk that incomplete police investigation will result in charges being brought against innocent persons. These are costs that society should not bear.
Shandola also asserts that he was entitled to dismissal for preaccusatorial delay under CrR 8.3(b) (dismissal in the furtherance of justice). But he fails to show, as that rule requires (1) arbitrary action or misconduct by the government; and (2) prejudice affecting his right to a fair trial. State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997). Shandola attempted to show governmental misconduct by alleging discovery violations; we discuss these issues in Section IV below. But because Shandola failed to demonstrate prejudice, the trial court did not abuse its discretion in denying the CrR 8.3(b).
II. Motion to Suppress Evidence Statements
Shandola next challenges the admission of evidence that the police obtained from his home and his work locker. `We review the denial of a motion to suppress by determining whether substantial evidence exists to support the trial court's findings of fact, and whether those findings support the trial court's conclusions of law.' State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). We will review only those facts to which the appellant has assigned error on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
Shandola argues that the 11 page affidavit supporting the search warrant lacked probable cause because it was vague and stale. It was signed seven months after the homicide.
We review a challenge to a search warrant affidavit for an abuse of discretion, applying a reasonable person standard. State v. Seagul, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). But the affidavit must contain more than suspicions or belief. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). We evaluate police inferences in an affidavit based on common sense factors, such as the time police issued the affidavit and the nature and circumstances of the criminal activity. State v. Thein, 138 Wn.2d 133, 149, 977 P.2d 582 (1999); State v. Perez, 92 Wn. App. 1, 9, 963 P.2d 881 (1998); State v. Hett, 31 Wn. App. 849, 852, 644 P.2d 1187 (1982).
The challenged affidavit described items such as a shotgun, ammunition, and a motorcycle that, according to the statements of numerous witnesses, were relevant to the police investigation. The affidavit details a pattern of disputes between Shandola and Henry and includes statements from (1) Shandola's co-workers, who said that Shandola had indicated to others that he wanted to seriously harm Henry; (2) Henry's wife, who identified Shandola as a suspect; (3) Shandola, who claimed on the evening of Henry's death that he was at home at the time of the homicide; (4) Reta Peck; and (5) James and Jason Graham, who stated that they saw a light silver-blue Mercedes at the crime scene a few hours before Henry's murder, which police later identified as the same type of car that Shandola owned.
Given the circumstances of the crime and the nature of the evidence, the affidavit was neither fatally vague nor stale. Thus, the trial court did not err in denying Shandola's motion to suppress based on a defective search warrant.
B. Neutral and Detached Magistrate
Shandola also asserts that the issuing magistrate was not neutral and detached because he had served as a special inquiry judge and granted summary judgment to Henry in his civil action against Shandola arising out of the 1993 New Year's Eve dispute. The State had charged Shandola with assault for that incident and, after Shandola pleaded guilty, Henry filed a civil action for damages.
To be valid, a search warrant must be issued by a neutral and detached magistrate who is divorced from law enforcement investigation and activities. Staats v. Brown, 139 Wn.2d 757, 777, 991 P.2d 615 (2000) (quoting Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)); State v. Goble, 88 Wn. App. 503, 508, 945 P.2d 263 (1997). We are highly deferential to the magistrate's discretion and authority and rarely find that judicial conduct has improperly merged with police investigation. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). But see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979) (conduct of judge who accompanied police during a search of an adult bookstore owned by a defendant improperly merged with police investigation and was not neutral and detached).
In State v. Neslund, the Washington Supreme Court held that a `special inquiry judge is sufficiently severed and disengaged from law enforcement activities to qualify as a neutral and detached magistrate, even with respect to those cases before him on special inquiry.' 103 Wn.2d 79, 88, 690 P.2d 1153 (1984); see also In re Proceedings Before Special Inquiry Judge, 78 Wn. App. 13, 15-16, 899 P.2d 800 (1995) (citing Neslund to reach the same result). Here, as was the case in Neslund, the magistrate had limited authority in his special inquiry judge role.
Nor was the magistrate called on to make credibility determinations when he ruled on Henry's summary judgment motion. See Riley v. Andres, 107 Wn. App. 391, 395, 398, 27 P.3d 618 (2001); CR 56. And his participation in the summary judgment proceedings did not constitute participation in law enforcement investigation. Thus, the trial court did not err in denying Shandola's motion to suppress evidence obtained through the execution of the search warrant.
C. Miranda Issues
Shandola also contends that the court erred in admitting statements that he made to the police on his front porch on the night of Henry's murder. He contends that he was in custody because he was `outnumbered' by confrontational officers, some of whom were wearing raid jackets, and that he did not receive proper Miranda warnings.
Miranda warnings apply only to custodial interrogations; thus, 5th Amendment protections do not apply when a person makes knowing and voluntary statements to law enforcement in other circumstances. 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We examine a trial court's findings from a CrR 3.5 hearing for substantial evidence but we review the trial court's determination of custody de novo. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997); State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002), review denied, 149 Wn.2d 1025 (2003). We do so by examining the circumstances and asking whether a reasonable person would have felt free to leave while talking with law enforcement. State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002); State v. Short, 113 Wn.2d 35, 41, 775 P.2d 458 (1989) (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).
The trial court's finding of fact and conclusions of law from the CrR 3.5 hearing state that: (1) police called Shandola before they arrived, he agreed to speak with them, and they arrived ten minutes later; (2) Shandola agreed to speak with the officers on his front porch; (3) Shandola understood what was happening and he was not intoxicated; and (4) he was not restrained in any way, `nor was he told that he could not leave.' V Clerk's Papers (CP) at 931. Accordingly, the trial court found that Shandola `controlled the manner and nature of the contact with detectives' and that Miranda warnings did not apply because Shandola's statements `were freely and voluntarily given.' V CP at 932.
These facts support the trial court's finding that Shandola was not in police custody. Thus, it was not error to admit statements that he made without the benefit of Miranda warnings.III. Bill of Particulars Shandola claims that the trial court erred in denying his motion for a bill of particulars; he sought an order requiring the State to identify an accomplice to Henry's murder. We review this contention under an abuse of discretion standard.
A defendant has the right to understand the State's charges and CrR 2.1 requires `a plain, concise and definite written statement of the essential facts constituting the offense charged.' CrR 2.1(a)(1). The court should order a bill of particulars if the defendant lacks enough information to adequately prepare a defense. State v. Allen, 116 Wn. App. 454, 460, 66 P.3d 653 (2003). But `there is no distinction between accomplice or principal liability, and `the charging of one theory adequately apprises the defendant of his liability for the other.'' Allen, 116 Wn. App. at 460 (quoting State v. Molina, 83 Wn. App. 144, 148, 920 P.2d 1228 (1996)); see also State v. Peerson, 62 Wn. App. 755, 768, 816 P.2d 43 (1991).
The charging information here clearly charges Shandola with first degree murder for the death of Robert Henry. It is five pages long and contains numerous details of the circumstances of the homicide. And at the hearing on the motion, the State verified that it was charging only Shandola with Henry's murder. The trial court denied Shandola's motion but it directed the State to provide the defense with the name of any specific accomplice that the State was able to identify.
Shandola asserts that a central part of the State's accomplice liability theory involved Shandola's wife, who was not specifically mentioned as a possible accomplice in the information. We do not see how this omission materially hindered Shandola's ability to prepare an adequate defense or that the information was in any way inadequate. Thus, the trial court did not abuse its discretion when it denied the bill of particulars motion.
IV. Discovery Violations
Shandola next argues that the trial court erred in denying his motions to dismiss for discovery violations. In his first motion, Shandola complained that the State was not forwarding discovery in a timely manner. The court found no arbitrary misconduct by the State and denied the motion.
In his second motion, Shandola alleged that the State was withholding and destroying evidence. The court ordered the State to disclose certain documents gathered by a former police investigator who started work on Shandola's case, but eventually stopped. The disclosed documents mentioned that Buffington allegedly saw Shandola at home on the afternoon of the murder and they contained a photo montage that included a potential accomplice.
The court found that this information was only potentially useful and that it was duplicative of evidence already before the court. The court also determined that the State was not intentionally destroying evidence.
We apply a manifest abuse of discretion standard when reviewing a trial court's denial of a motion to dismiss for discovery violations. State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135 (1994). The grant of such a motion is an `extraordinary remedy' available only when discovery violations materially prejudice the defendant's right to a fair trial. Hanna, 123 Wn.2d at 715 (citing State v. Blackwell, 120 Wn.2d 822, 830-31, 845 P.2d 1017 (1993)); State v. Woods, 143 Wn.2d 561, 582, 23 P.3d 1046 (2001).
The State must act with due diligence in the discovery process, but to obtain dismissal, the defendant must show the materiality of any missing evidence, not merely that the evidence provided circumstantial support or was potentially useful. Woods, 143 Wn.2d at 582-83; State v. Knutson, 121 Wn.2d 766, 773, 854 P.2d 617 (1993); State v. Wittenbarger, 124 Wn.2d 467, 477, 880 P.2d 517 (1994). The defendant must support his challenge with a preponderance of the evidence. State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980).
On appeal, Shandola emphasizes the volume of the former investigator's notes undisclosed until the eve of trial. But he fails to discuss how the late discovery of the contents of those notes materially prejudiced his trial. Thus, the trial court did not abuse its discretion in denying Shandola's motion to dismiss for discovery violations.
V. Evidentiary Issues
Shandola next assigns error to the trial court's denial of his motion in limine to exclude certain evidence of prior bad acts. The trial court admitted the challenged evidence to demonstrate Shandola's motive, consciousness of guilt, premeditation, and opportunity. Shandola also challenges the court's evidentiary rulings regarding hearsay, the doctrine of completeness, and expert testimony.
We review the trial court's evidentiary rulings for an abuse of discretion; abuse occurs only if the ruling was `manifestly unreasonable' or based on `untenable grounds.' State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). The appellant bears the burden of proving abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
A. ER 404(b)
Under ER 404(b), prior bad acts and crimes are generally inadmissible to prove a person's character, but character evidence is admissible in limited circumstances, such as proof of motive, opportunity, intent, preparation, and knowledge. The State must prove the defendant's misconduct by a preponderance of the evidence. State v. Pirtle, 127 Wn.2d 628, 648-49, 904 P.2d 245 (1995).
The trial court must identify the evidence's purpose and relevance to the charged crime and perform a balancing test that weighs the probative value of the character evidence against its prejudicial effect. Pirtle, 127 Wn.2d at 649; see also State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996) (trial court's failure to perform balancing analysis on the record can be harmless error). If in doubt, the trial court should hold in favor of the defendant and exclude the proffered character evidence. State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986).
Relevant character evidence is `of consequence to the outcome of the action' and makes `the existence of the identified fact more probable.' State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990) (citing State v. Brown, 113 Wn.2d 520, 527, 782 P.2d 1013 (1989)). We will `uphold a trial court's decision to admit evidence of prior misconduct under ER 404(b) if one of its cited bases is justified.' State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995) (emphasis added).
1. Evidence Admitted to Demonstrate Motive
A trial court broadly defines motive as a defendant's impulse or desire that triggers action. Powell, 126 Wn.2d at 259-60. In murder and assault cases, disputes between the victim and the defendant are generally relevant and admissible to demonstrate motive because `such evidence tends to show the relationship of the parties and their feelings one toward the other and often bears directly upon the state of mind of the accused with consequent bearing upon the question of malice or premeditation.' State v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997) (discussing Powell, 126 Wn.2d at 259-610.).
a) Ale House Incident
The trial court admitted evidence of an encounter between Shandola and Henry that occurred at the Ale House Pub in the early 1990s. Paula Henry and George Johnson testified that they were socializing at the pub with Henry, Shandola, and Shandola's wife when Shandola started yelling at his wife in front of the group. They said that Henry later approached Shandola and scolded him for his behavior. Paula Henry testified that later in the evening, Shandola sat away from the group and stared at them and that when she gave him a ride home, he told her that he had `some issues with Bob [Henry].' 3 Report of Proceedings (RP) at 714.
Shandola contends that this evidence was prejudicial toward his character and had, at most, only tenuous relevance. But it was part of a significant pattern of personal and professional conflict between Shandola and Henry that the trial court described in its Order on Pre-Trial Motions, including Shandola's complaints about Henry to various co-workers, the New Year's eve assault by Shandola of Henry, and Henry's suit against Shandola for damages. Further, numerous witnesses described in unchallenged testimony the pattern of conflict between Shandola and Henry. Considering the broad definition of motive, the trial court did not err in ruling that the Ale House incident was more probative of motive than prejudicial to Shandola's character.
See, e.g., the witness testimony of Jacqueline Cheatham, Eugene Ryan, Steve Jackson, and Joe Brown. RP at 879-80, 1165, 1734, 1845-48.
b) Prior Business Relationship
Shandola also objected to evidence about his prior business relationship with Henry. Paula Henry testified that Shandola and her husband formed a business partnership in 1993. Shandola was to purchase poorly maintained homes, the Henrys were to remodel them, and the partnership would then sell the remodeled homes and split the proceeds. But the relationship soured after they worked on their first house and the business partnership ended.
The business agreement was not in writing; however, the record contains a warranty deed for the first house Henry and Shandola bought together, which includes the names of all relevant participants.
The trial court minimized the prejudice from this evidence by limiting Paula Henry's testimony to a general description of the business relationship. Given that the business dispute was part of a pattern of conflict between Shandola and Henry, the trial court did not err in ruling that it was admissible evidence of motive.
c) Reprimand for Unscheduled Work Break
The court also admitted evidence from two of Shandola's co-workers about a reprimand that Shandola received about a month before Henry's death. Shandola attributed the reprimand to Henry. Again, this evidence was part of a larger pattern of words and conduct that demonstrated Shandola's strong dislike toward Henry. Our reasoning above also supports the admission of this evidence to establish motive.
d) Henry's Civil Lawsuit Against Shandola
Robert Reinhard, who was Henry's attorney in his civil action against Shandola, testified about the civil lawsuit and the trial court admitted a settlement demand letter that was part of this action. Shandola challenges this evidence as too broad, but he fails to specify the objectionable portions of Reinhard's testimony. To warrant appellate review, the appellant must make specific challenges supported with legal authority. RAP 10.3(a)(5), (g); see also Davis v. Dept. of Labor and Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980). Thus, we are unable to review this assignment of error.
Further, we note that the trial court carefully scrutinized the probative effect of Reinhard's testimony and limited it to matters related to Shandola's self-defense claim asserted in the civil action and to the basic elements of the summary judgment proceedings. As above, this evidence was part of a larger pattern of words and conduct that demonstrated Shandola's motive to kill Henry.
With regard to the settlement demand letter, it was not proffered as evidence of an offer to compromise a lawsuit or establish civil liability, which ER 408 prohibits. Rather, the trial court admitted the letter to demonstrate Shandola's motive to kill Henry. Given the circumstances of this case, and the court's efforts to limit the evidence to minimize its prejudicial effect, we cannot say that it was an abuse of discretion to admit evidence of the civil litigation to prove Shandola's motive to kill Henry.
2. Evidence of Consciousness of Guilt, Premeditation, or Opportunity
The trial court admitted Paula Henry's testimony about Shandola harassing her and John Brown's testimony about Shandola threatening him, both of which occurred after the homicide. The trial court admitted this as evidence of Shandola's consciousness of guilt. And it admitted Rosalie Ortiz's testimony that two weeks before Henry's death, she heard Shandola state that he wanted to kill someone. The court admitted this as evidence of premeditation. The trial court also admitted the testimony of Michelle Pileak to show consciousness of guilt and opportunity.
a) Shandola's Threats
The trial court may admit evidence that demonstrates `consciousness of guilt,' such as a defendant's threatening gesture toward a witness, if the proponent proves the conduct by a preponderance of the evidence and the court determines that the evidence is more probative than prejudicial. State v. McGhee, 57 Wn. App. 457, 461, 788 P.2d 603 (1990).
Paula Henry testified that Shandola was consistently harassing her in various ways, including frequently driving by her home and attending her workplace lunchroom with `a smirk on his face.' 3 RP at 745-46. She obtained a one year restraining order against him but he returned to her workplace after it expired. Paula Henry estimated that she had seventy continuous contacts with Shandola after her husband's murder.
A reasonable person certainly could find by a preponderance that this behavior was harassing and threatening. Further, the trial court was careful to limit Paula Henry's testimony to `what she saw [and] what she observed the defendant actually do' and did not allow her to give an opinion as `to what she believed the defendant was trying to tell her.' 2 RP at 456-57.
John Brown and Shandola were co-workers at the City sewer department and after Henry's homicide, detectives interviewed Brown about Shandola's potential role in the murder. Shandola knew about this interview and, according to Brown, Shandola threatened him soon after the interview by stating that he would bury him in a shallow grave. We find no abuse of discretion in the trial court's rulings that the State proved these events by a preponderance of the evidence and that the threat was probative of Shandola's guilty knowledge.
Shandola also challenges the admission of Ortiz's testimony about an incident that occurred about two weeks before Henry's murder. Ortiz, one of Shandola's co-workers at the City sewer department, witnessed Shandola in the lunchroom `hitting his fist into his hand' and stating with anger that `I have to get him. I have got to kill him.' 3 RP at 809. The court admitted this incident as evidence of premeditation.
Shandola contends that Ortiz's testimony was speculative and irrelevant. But the State may use circumstantial evidence drawn from a range of facts to prove premeditation if the evidence supports a reasonable inference and the evidence is substantial. Finch, 137 Wn.2d at 831-32.
Here, Ortiz's trial testimony was very similar to the statements she had made to a detective a month after Henry's death. She was describing the conduct of a man with whom she had worked for about ten years and she was describing comments that Shandola made close to the time of Henry's murder. See also Finch, 137 Wn.2d at 831 ('a wide range of proven facts will support an inference of premeditation.') (citations omitted).
As premeditation was an essential element of the first degree murder charge, this evidence clearly was relevant and, as Ortiz observed the conduct, it was not speculative. The trial court did not err in allowing this testimony.
b) Testimony of Michelle Pielak About Shotgun
The State offered the testimony of Michelle Pielak, another co-worker, to show that Shandola had the opportunity to kill and his consciousness of guilt. Pielak testified that about six months after Henry's homicide, Shandola approached a co-worker and stated `Hey Pat, do you want to buy a shotgun?' 5 RP at 1524.
Shandola asserts that this was irrelevant and speculative evidence because it was made in a joking and `tongue-in-cheek manner.' Br. of Appellant at 119. But given that Henry died from shotgun wounds, the evidence supported a reasonable inference that Shandola was talking about a weapon that he could have used to kill Henry. State v. Luvene, 127 Wn.2d 690, 708, 903 P.2d 960 (1995). The evidence also suggests a guilty conscience because it demonstrates Shandola's desire to dispose of evidence that would be significant in the investigation of Henry's death. Thus, the trial court did not abuse its discretion in admitting Pielak's testimony.
Shandola challenges the trial court's reliance on the hearsay rule to exclude written summaries of witness statements that Buffington and Jason Graham allegedly made to the police.
Hearsay, an out of court statement offered for the truth of the matter asserted, is generally inadmissible absent an applicable exception. ER 801(c); ER 802. The purpose of the rule is to preserve the integrity of the court and the veracity of witness statements. Nordstrom v. White Metal Rolling Stamping Corp., 75 Wn.2d 629, 632, 453 P.2d 619 (1969).
On September 11, 1995, Buffington told police detectives that he saw Shandola working on his house earlier that afternoon. The police wrote a summary of the statement in a police report.
On September 13, 1995, James and Jason Graham gave Detective Jim Williams a tape recorded statement about the Mercedes they saw in the afternoon of September 11, near the site of Henry's homicide. On September 20, Williams took James and Jason Graham to Shandola's car, which was in police custody, and asked them to compare their observations of the car they saw on September 11 with Shandola's car. Williams summarized the September 20 statements in a police report.
The trial court excluded the written summaries of Jason's September 20 statement and Buffington's statement as inadmissible hearsay. But it relied on the ER 803(a)(5) hearsay exception for a recorded recollection to admit the portion of Jason's September 13 statement in which he described a dent he observed in the parked Mercedes. Shandola argues that Jason's September 13 and September 20 statements and Buffington's statement were admissible under ER 803(a)(5), and that Jason's September 20 statement was admissible under the exception to the hearsay rule for present sense impressions.
1. ER 803(a)(1) — Present Sense Impression
Shandola argues that the court should have admitted Jason's September 20 statement to Detective Williams under ER 803(a)(1), which contains an exception to the hearsay rule for comments describing present sense impressions made very close in time to the perceived event. See State v. Martinez, 105 Wn. App. 775, 783, 20 P.3d 1062 (2001). But Jason's September 20 statement comparing the car he saw on September 11 to the car he observed on September 20 was made nine days after he saw the Mercedes parked near the crime scene. As the crux of the September 20 statement was the earlier observation, the statement does not fit within the exception for present sense impressions.
Shandola offered Jason's unrecorded, unsworn September 20 statement to prove the truth of the matter. It clearly was hearsay and Shandola has not shown that any exception to the hearsay rule applies.
2. ER 803(a)(5) — Recorded Recollection
In certain circumstances, a recorded recollection is admissible evidence under ER 803(a)(5). The declarant's availability to testify is not dispositive; however, the record must satisfy the four factors set forth in Alvarado:
(1) the record pertains to a matter about which the witness once had knowledge;
(2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony;
(3) the record was made or adopted by the witness when the matter was fresh in the witness' memory; and
(4) the record reflects the witness' prior knowledge accurately.
A trial court determines the fourth element on a `case-by-case basis' by examining the `totality of the circumstances,' which includes the following factors: `(1) whether the witness disavows accuracy; (2) whether the witness averred accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthiness of the statement.' Alvarado, 89 Wn. App. at 551-522.
Here, Buffington's statement and Jason's September 20 statement do not satisfy Alvarado's fourth foundational requirement. Both statements are contained in police reports and merely reflect a detective's interpretation of the declarants' observations. As both statements are unsworn, unsigned, and not a tape recording, they lack any indicia of reliability.
Shandola asks us to overlook the lack of formal indicia of reliability because the `seasoned' detectives who gathered the statements could have testified to the accuracy of the statements and because there is `no indication' that Buffington or Jason disavowed their statements. Br. of Appellant at 78. But that is insufficient to make the required affirmative showing of an accurate recording. See State v. Derouin, 116 Wn. App. 38, 46-47, 64 P.3d 35 (2003) (court questioned reliability of statement where an officer wrote it `after discussing its contents with the witness,' rather than as witness spoke, and officer did not have witness subsequently read and sign statement). Thus, the trial court did not abuse its discretion in excluding both statements.
We agree, however, that the tape recording of Jason's September 13 statement, unlike the two statements summarized in the police reports, does meet Alvarado's foundational requirements. Shortly after the incident, Jason told the police about seeing the Mercedes in the parking lot and his father, James Graham, affirmed Jason's statements through his video deposition that was presented to the jury. Both Jason and James Graham provided detailed information, such as a description of the damage to the Mercedes and the way the car exited the parking lot.
Thus, Jason's September 13 statement was admissible as a recorded recollection under ER 803(a)(5). But the trial court allowed only those portions of the statements related to Jason's observations of a dent on the Mercedes and it did so only to provide context for James Graham's video deposition testimony about the dent. The trial court stated:
The concern that I have is that Jim Graham, his testimony in the deposition that was presented, made a statement about the information to the dent on the vehicle. And that information is not coming from his own observations, but coming from his son's observations.
. . . .
I think it would be prejudicial to not allow the portion of the testimony of Jason Graham — portion of the recorded statement of Jason Graham to come in and explain the dent that he observed, because that was a critical part of the father's testimony, and helped identify the vehicle in the mind of the father.
9 RP at 2316.
Although Jason's September 13 statements are generally duplicative of his father's testimony, only Jason mentioned that the Mercedes had a cracked windshield. Thus, the trial court erred in limiting the admission of Jason's September 13 statement.
A trial court's evidentiary errors are harmless when a reasonable person can conclude that the wrongfully omitted evidence `is of minor significance in reference to the overall, overwhelming evidence as a whole.' State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (citation omitted); see also Carleton, 82 Wn. App. at 686-87. A reasonable person could so conclude here.
Except for stating that the Mercedes had a cracked windshield, Jason's September 13 statement was cumulative and consistent with James Graham's September 13 statement and video deposition testimony. Both father and son observed the car at the same time and discussed the Mercedes' color and how the car exited the parking lot; both their statements contained ambiguities and inconsistencies about the Mercedes; and neither could identify the vehicle's driver.
On September 13, 1995, Jason stated:
J.G. [Jason Graham] And . . . did have a crack in the windshield, cause the son [sic] was reflecting off of it.
J.W. [Detective Williams] Do you remember which side of the windshield or . . .
J.G. It was on the driver's side of the windshield, coming up from the middle and . . . from . . . up from the middle and over to the driver's side . . .
J.G. And it had a . . . it had a busted out part right in the middle of the windshield.
J.W. OK, is there anything else?
J.G. No. V CP at 828.
James Graham did not notice any damage to the Mercedes but he recalled in his video deposition that Jason had observed a dent in the car. James Graham could not clarify if the Mercedes was a four-door or two-door sedan but the jury viewed numerous photos of Shandola's Mercedes and had the opportunity to compare these photos to James Graham's statements.
Finally, the connection between Shandola's Mercedes and the Mercedes that Jason and James Graham observed at the crime scene was only a small portion of the evidence that the jury considered. The jury also heard extensive evidence about Shandola's motive and opportunity to kill Henry; about the civil lawsuit between them; and about Shandola's conduct toward Paula Henry. The exclusion of Jason's recorded recollection about the cracked windshield was not prejudicial and, thus, was harmless error.
C. Doctrine of Completeness
Shandola argues that the doctrine of completeness, a common law rule reflected primarily in ER 106, required the court to admit both of Jason's statements and Buffington's statement because they complete James Graham's testimony. Because Jason's September 13 statement was admissible under ER 803(a)(5), we consider this argument in connection with only his September 20 statement and Buffington's statement.
ER 106 provides that when a `recorded statement . . . is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it.' The central purpose of the rule of completeness doctrine is to protect against creating a `misleading impression.' 5 Karl B. Tegland, Washington Practice: Evidence, sec. 106.1 at 115 (4th ed. 1999). We engage in a highly fact specific inquiry as we evaluate the application of the rule of completeness, and, thus, are highly deferential to the trial court's discretion. Tegland sec. 106.1, 106.3; see also State v. Larry, 108 Wn. App. 894, 909-910, 34 P.3d 241 (2001).
Although ER 106 contains broad language, Shandola's contentions are unpersuasive. Both Jason's September 20 statement and Buffington's statement, as we discussed above, lacked indicia of reliability. Thus, there was as much likelihood that the introduction of these statements would mislead the tribunal as that they would provide a meaningful and sound context for James Graham's testimony. Consequently, the trial court did not abuse its discretion in finding these statements inadmissible under the rule of completeness.
D. Expert Testimony
Shandola attempted to call a former Pierce County prosecutor to testify that a witness had received a beneficial plea bargain for his testimony about Shandola. He contended that this expert testimony would help the jury understand `the significance of a felony conviction versus that of a gross misdemeanor.' Br. of Appellant at 108.
Under ER 702, a testifying expert must be qualified and `assist' the jury to `determine a fact in issue.' ER 702. Generally, witnesses should not attack the credibility of other witnesses. State v. Dietrich, 75 Wn.2d 676, 677-78, 453 P.2d 654 (1969) ('This court has long recognized that it is the function and province of the jury to weigh the evidence and determine the credibility of the witnesses and decide disputed questions of fact.') (citations omitted); Demery, 144 Wn.2d at 764 (affirming that in general, a witness cannot testify about the truthfulness of another witness).
The court denied Shandola's request on the basis that the jury did not need the assistance of an expert to understand that the witness received a `deal' for testifying and that it was improper to allow an expert witness to attack the truthfulness of another witness. 9 RP at 2177. Thus, the trial court did not abuse its discretion in refusing to allow the former prosecutor to testify as an expert regarding a plea bargain that the jury could easily understand
VI. Post Judgment Motion
Following entry of judgment and sentence, Shandola moved for `ARREST OF JUDGMENT . . . OR, IN THE ALTERNATIVE, FOR A NEW TRIAL,' alleging, inter alia, insufficiency of the evidence. V CP at 896.
A. Motion to Arrest Judgment
Shandola contended that the State's circumstantial evidence was too tangential to support the conviction.
The trial court evaluates a motion to arrest judgment by viewing the evidence most favorably to the State and determining whether a rational person would have found the defendant guilty of the crime charged beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220, 616 P.2d 628 (1980). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We will not disturb a trial court's findings of fact if substantial evidence supports them. State v. Chapman, 84 Wn.2d 373, 376, 526 P.2d 64 (1974). We review the trial court's decision by engaging in the same analysis as the trial court. State v. Longshore, 141 Wn.2d 414, 420, 5 P.3d 1256 (2000).
Here, there was sufficient evidence to support Shandola's first degree murder conviction. Numerous witnesses provided evidence about Shandola's motive, opportunity to kill, and his premeditation. Thus, the trial court did not err by denying Shandola's motion for arrest of judgment.
B. Motion for a New Trial
In his motion for a new trial, Shandola generally claimed evidentiary errors and made legal arguments that we have already addressed. But he also claimed insufficient evidence to support the accomplice liability jury instructions.
We review the trial court's denial of a motion for a new trial under an abuse of discretion standard and we review jury instructions de novo. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003); State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Jury instructions must be supported by substantial evidence and must `properly inform the jury of the applicable law.' Sarausad v. State, 109 Wn. App. 824, 838, 39 P.3d 208 (2001) (citation omitted).
The elements of accomplice liability for first degree murder are the same as those for principal liability. State v. McDonald, 138 Wn.2d 680, 687-88, 981 P.2d 443 (1999). Here, the evidence of Shandola's motive and premeditation was substantial and the evidence was sufficient to support a reasonable inference that Shandola may have had an accomplice.
Further, all of the evidence focused on the specific charge of first degree murder for Henry's death. Thus, there is no indication that the instructions confused the jury. See Sarausad v. State, 109 Wn. App. 824, 39 P.3d 308 (2001) (upholding jury instructions on accomplice liability despite the jury's significant confusion about them). Thus, the trial court did not abuse its discretion by denying Shandola's motion for a new trial.
VII. Cumulative Error
Finally, Shandola asserts that the cumulative error doctrine mandates reversal. The cumulative error doctrine protects a criminal defendant's right to a fair trial and applies only when a trial contains numerous prejudicial and egregious errors. See, e.g., State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963); State v. Stevens, 58 Wn. App. 478, 498, 795 P.2d 38 (1990). The defendant bears the burden of proving these significant errors. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994). Because we rejected most of Shandola's claims of error and do not find prejudicial or egregious errors, Shandola is not entitled to relief under the cumulative error doctrine.
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.
HOUGHTON, J., HUNT, C.J., concur.