Opinion
No. 57256-3-I.
February 11, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-00212-0, Ellen J. Fair, J., entered November 8, 2005.
Affirmed by unpublished per curiam opinion.
During Clayton Butsch's trial for first degree murder, the defense sought a mistrial when witnesses disclosed excluded evidence relating to a witness's polygraph and Butsch's prior release from prison. Because the court did not abuse its discretion in denying a mistrial and because Butsch's challenges to various evidentiary rulings, several instructions, his offender score, and alleged prosecutorial misconduct lack merit, we affirm his convictions.
FACTS
On January 24, 2004, Chad Vavricka died after being shot twice in the head inside Clayton Butsch's trailer. Two eyewitnesses, Billy Jo Clough and Shelley Holly, testified that Butsch fired the gun that killed Vavricka. Holly testified that the murder weapon was a .22 caliber derringer she had loaned to Butsch. Lonnie Metteer heard the shooting from an adjacent room and corroborated much of the eyewitness testimony.
Clough and Metteer testified that Butsch shot Vavricka because Butsch's cat seemed to dislike him. Butsch told Clough that his "cat senses good and bad out of people." Report of Proceedings (RP) (Oct. 20, 2005) at 431. Butsch's friend, Michael Minich, testified that Butsch once told him "if the cat doesn't like you, I don't like you." RP (Oct. 26, 2005) at 1381. Metteer testified that he was showering in Butsch's trailer when he heard Butsch say "[s]omething about his cat. His cat didn't lie." RP (Oct. 21, 2005) at 601. He then heard a woman say, "[n]o, Clay, no," followed by two pops that sounded like firecrackers. Id. at 602. When Metteer came out of the shower, Butsch stared at him and said, "You didn't see nothing." Id. at 605. Later that evening, Butsch "was acting kind of . . . strange and then he . . . fell down, talking something about spirits." Id. at 612. Davin Thomas, known to his friends as Daffy, testified that Butsch "passed out" and fell to the ground, but "it was a fake." RP (Oct. 25, 2005) at 1186.
Clough's brother Tracy picked him up the next day and drove him to Eastern Washington. Tracy and Clough's uncle convinced him to go to the police. Clough told Snohomish County police that Butsch shot Vavricka with a "little black .22." RP (Oct. 20, 2005) at 437.
Jeremy Van Volkenberg, a defense witness and neighbor of Butsch, testified that he heard two gunshots like "fireworks" on the night of the murder. RP (Oct. 28, 2005) at 1775. He admitted telling the police and defense counsel that he saw Daffy run from Butsch's trailer after the shooting. In court, however, he testified that he made those statements because Shelley Holly's boyfriend "Ray" had held a gun to his head and told him "[y]ou didn't see Shelley running out of the trailer. You seen Daffy." Id. at 1777. Because of this threat, Van Volkenberg feared for his life and his children's lives. When defense counsel asked if it could have been Daffy he saw running from the trailer, Van Volkenberg said "[n]o" and stated he was 99 percent sure it was Holly. Id. at 1778.
Shelley Holly testified that Butsch said nothing about his cat, but told her "[i]t's me or him" just before he shot Vavricka. RP (Oct. 24, 2005) at 774. She thought Butsch was referring to "these invisible people that he thought hung out there and was spying on him." Id. at 774-75. Butsch "always seemed to think that everybody was watching him. . . . [O]ne night he took a knife and he slit the ceiling of his trailer because he thought somebody lived up there that was always spying on him." Id. at 846. On another occasion, he shot his gun through the floor of the trailer several times "because he thought somebody was below the trailer spying on him." Id.
Holly testified that after the murder, she and Butsch borrowed a small car from Laurie Hughes. Hughes testified that Holly and Butsch arrived at her residence at 4:30 a.m. and borrowed her Honda Civic. Butsch asked if there was anyone in Hughes' closet, and she said there was not.
Butsch and Holly then drove Hughes' car and Holly's truck to Butsch's trailer where Butsch attempted to load Vavricka's body into the trunk of the car. They eventually drove to Daffy's residence. Butsch convinced Daffy to help him clean up the trailer and dispose of the body. They drove off in Hughes' car and Holly's pickup and returned around noon the next day. Hughes corroborated their return time and testified that a tool box and rug were missing from the trunk of her car.
Daffy testified that he and Butsch drove to Butsch's trailer and loaded several garbage cans into Holly's truck. They then drove the car and truck to a wooded area where Butsch dumped Vavricka's body and Daffy unloaded the garbage cans. Along the way, Daffy noticed a couple jogging.
Gary Pearson testified that he and his wife took a walk the morning after the murder. They noticed a white "Honda-ish" car and a pickup truck with garbage in the back "following one another." RP (Oct. 25, 2005) at 1017. The truck, which had a loud muffler, later returned without the garbage. Holly testified that she put a "cherry bomb" muffler on her truck because she liked the loud sound it made. RP (Oct. 24, 2005) at 875. Other evidence showed that Hughes owned a white car.
After the truck passed, the Pearsons found a Seahawks trading card on the road. They thought it was odd that, despite the snow on the ground, the card was completely dry and had no snow on it.
Following fresh tire tracks, the Pearsons walked toward a building lot up the road. When they arrived, they found a pile of garbage, including Seahawks trading cards. They also found Vavricka's body. They rushed home and called 911.
Later that weekend, several witnesses saw Butsch in his shorts in the rain tending "a huge, huge fire." RP (Oct. 25, 2005) at 983. One of the witnesses said, "Hey, nice fire." Id. Butsch did not respond. The witness described the scene as "odd." Id.
A few days later, police arrested Butsch at his trailer. Despite repeated orders for his surrender over a loudspeaker, Butsch took nearly 15 minutes to exit the trailer. Holly testified that she was in the trailer at that time and that Butsch did not want to come out. He asked Holly to do something with the murder weapon. He eventually threw it into a hole in the ceiling, where police later found it. A few months after his arrest, Butsch called Holly and said he had read her statement. He told her not to talk to anybody and to "stay solid." RP (Oct. 24, 2005) at 877-78.
The State charged Butsch with first degree murder while armed with a firearm, second degree unlawful possession of a firearm, and one count of possession of methamphetamine. Prior to trial, the parties agreed that the jury would not be told the precise nature of Butsch's predicate offense for unlawful possession of a firearm, but would instead be told he had been convicted of a felony.
Virtually every witness present during the murder or involved in its immediate aftermath was an active drug user. Many of the witnesses had criminal records and significant inconsistencies in their stories. In particular, Holly and Daffy each changed portions of their stories several times and admitted lying to police. In closing, the defense emphasized the numerous contradictions and inconsistencies in the witnesses' testimony. The State emphasized that despite all the inconsistencies, the eyewitnesses had consistently maintained that Butsch was the killer.
A jury found Butsch guilty of murder and unlawful possession of a firearm, but acquitted him of possession of methamphetamine.
DISCUSSION Motion for Mistrial
Butsch first contends the trial court abused its discretion in denying his motion for a mistrial after Daffy testified that he had taken a lie detector test. We disagree.
A ruling on a motion for mistrial is reviewed for abuse of discretion. State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986). The trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be tried fairly. Id. In determining the effect of an irregular occurrence during trial, courts consider its seriousness, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it. Id.
In this case, Daffy violated a pretrial ruling when he testified that he "gave a lie detector test." RP (Oct. 25, 2005) at 1187. But "[t]he mere fact a jury is apprised of a lie detector test is not necessarily prejudicial if no inference as to the result is raised or if an inference raised as to the result is not prejudicial." State v. Descoteaux, 94 Wn.2d 31, 38, 614 P.2d 179 (1980), overruled on other grounds, State v. Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982). Butsch contends the jury could have inferred that Daffy passed the polygraph test. While the trial court found such an inference could be drawn, it also found that Daffy's failure to secure a plea deal with the State supported an inference that he failed the test. In addition, the court noted, and the record confirms, that Daffy was not the crucial witness Butsch claims he was. No evidence placed him in Butsch's trailer at the time of the murder, and, contrary to Butsch's assertions, he was never a suspect. Importantly, the court immediately struck the polygraph reference, admonished the jury to disregard it, and later instructed them in writing to disregard any polygraph evidence. The jury is presumed to obey the court's rulings and disregard remarks that are stricken. State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990).
We conclude that the court did not abuse its discretion in ruling that Daffy's testimony was "not so prejudicial as to prevent the defendant from receiving a fair trial." RP (Oct. 26, 2005) at 1205.
We agree with the trial court's conclusion that State v. Sutherland, 94 Wn.2d 527, 529, 617 P.2d 1010 (1980) is distinguishable. In contrast to this case, the polygraph testimony in Sutherland concerned a person who was both the State's principal witness and an initial suspect in the case, and indicated "by strong implication" what the results of the polygraph were. Id. at 530.
Our resolution of this issue also disposes of Butsch's related argument that the prosecutor committed prejudicial misconduct when she allegedly failed to inform Daffy of the court's pretrial ruling.
Jury Instructions
Butsch next contends, and the State concedes, that the jury instructions omitted an element of unlawful possession of a firearm, i.e., the requirement that Butsch knowingly possessed a firearm. The State argues that the error was harmless. We agree.
Knowledge is an essential element of second degree unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000). The instructions in this case failed to inform the jury of that element. Nevertheless, the error is harmless if the verdict would have been the same absent the error. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002). Because the charging dates for the murder and unlawful possession charges overlapped and because the jury found Butsch guilty of murder while armed with the same gun that formed the basis of the unlawful possession charge, the error was harmless beyond a reasonable doubt. See State v. Hochhalter, 131 Wn. App. 506, 517-18, 128 P.3d 104 (2006) (finding similar error harmless).
Right to Confrontation
Butsch contends the court abused its discretion and violated his right to confront witnesses when it limited his cross-examination of Shelley Holly. Specifically, he contends the court should have allowed him to impeach Holly's testimony that she never owned guns with evidence that a gun was found in her former residence after the murder. We disagree.
Decisions regarding the scope of cross-examination are reviewed for abuse of discretion. Mak, 105 Wn.2d at 710; State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984); State v. Marks, 90 Wn. App. 980, 984, 955 P.2d 406 (1998) (trial courts have broad discretion in determining the scope of cross-examination).
On cross-examination, Holly stated that she hated guns. She then admitted that the gun used in the murder was hers. When she later denied having ever sold a gun, the following exchange occurred:
[DEFENSE] But you've owned guns, haven't you?
. . . .
[HOLLY] No.
[DEFENSE] Didn't you have a .25 caliber semiautomatic pistol?
[STATE] Your Honor, I'm going to object.
[HOLLY] Me? No.
[DEFENSE] No?
[HOLLY] No.
RP (Oct. 24, 2005) at 888-89. Following a sidebar, the questioning moved to a different topic.
During a recess, the prosecutor noted for the record that the .25 caliber pistol referred to by defense counsel had been found in a house where Holly no longer lived. After noting that Holly had already admitted that the .22 caliber gun used in the murder belonged to her, the prosecutor asserted that "the fact a .25 [caliber gun] was found sometime later in a house in which she had lived has minimal relevance to this case whether she likes it or dislikes it." Id. at 919. The court then memorialized its sidebar ruling:
And I've indicated in the sidebar that I thought the questioning proceeded as far as I thought it needed to go and that I asked counsel to move on to the next question, indicated that I would be reserving as to whether or not I would allow [defense counsel] to impeach what she had said, and I reiterate that and would require an offer of proof before that testimony came out in front of the jury.
Id. The court did not abuse its discretion in limiting the proposed impeachment on the record developed to that point.
Holly's testimony that she did not own guns was directly contrary to, and therefore impeached by, her prior testimony that the murder weapon originally belonged to her. There was thus little value in impeaching her with more evidence that she owned guns. Furthermore, the defense repeatedly impeached Holly on numerous other matters; therefore, additional impeachment would have added little to Butsch's defense.
Given the absence of any direct connection between Holly and the .25 caliber pistol, and in light of the other considerations discussed above, we conclude the court was within its discretion in precluding the proposed impeachment.
Offender Score
Butsch also challenges his offender score, arguing that the court should not have included his juvenile convictions in its calculation. This contention is controlled by our Supreme Court's recent decision in State v. Weber, 159 Wn.2d 252, 149 P.3d 646 (2006), cert. denied, 127 S. Ct. 2986, 168 L. Ed. 2d 714 (2007), holding that juvenile adjudications are part of a defendant's offender score.
Appellant's Additional Grounds for Review
In a series of pro se filings, Butsch raises a number of additional grounds for review. The State has moved to strike Butsch's reply to the State's response to these pro se filings. Although the reply brief is not authorized under the Rules Of Appellate Procedure and was not requested by this court, we exercise our discretion to consider it in the interests of justice. RAP 1.2(a).
The State has also moved to strike several attachments to Butsch's pro se filings. Given our resolution of the arguments in those filings, we find it unnecessary to rule on this motion to strike.
Turning to Butsch's pro se claims, we first consider his contention that the prosecutor repeatedly committed misconduct warranting a new trial. A defendant claiming prosecutorial misconduct "bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Comments will be deemed prejudicial only where "there is a substantial likelihood the misconduct affected the jury's verdict." Id. The prejudicial effect of a prosecutor's improper comments is not determined by looking at the comments in isolation but by placing the remarks "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Id. Where the defense fails to object to an improper comment, any misconduct is considered waived "unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Id. The absence of an objection by defense counsel "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." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
All but a few of the challenged comments were not objected to below and do not qualify for review under the test set forth above. Nevertheless, we have reviewed them and conclude there was no misconduct.
Butsch contends the prosecutor improperly bolstered three witnesses' testimony. In questioning Tracy Clough about his inconsistent statements, the prosecutor asked: "And when you did that, were you trying not to tell the truth?" RP (Oct. 20, 2005) at 417. When questioning Shelley Holly, she asked if it was possible that her prior untruthful statements, including a statement that she never saw Butsch with a gun, "were to protect yourself more than to protect anyone else?" RP (Oct. 25, 2005) at 871. Also, after Daffy testified that he was telling the truth, the prosecutor asked if he had been telling the truth in his prior statements. These questions did not in any way bolster or vouch for the witnesses' credibility. They were simply an attempt to let the witnesses explain inconsistencies in their statements. There was no misconduct.
Improper vouching only occurs when "it is 'clear and unmistakable' that counsel is expressing a personal opinion." State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (quoting State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985), rev'd on other grounds, 111 Wn.2d 641, 762 P.2d 1127 (1988)).
Next, Butsch claims the prosecutor's cross-examination and closing arguments regarding witness Joey Wayland were misconduct. This claim is meritless. The prosecutor asked Wayland: "And isn't it true that you just got your statement done on the 30th because you had to run it by [the defendant] to make sure it said what he wanted?" RP (Oct. 31, 2005) at 1852. This question was based on inferences from evidence that Butsch was talking to Wayland as he prepared his statement and was therefore proper.
The same is true of the prosecutor's closing arguments about Wayland. Those arguments were based on fair inferences from the evidence and did not convey the prosecutors' personal opinions, comment on Butsch's failure to testify, state facts not in evidence, or vouch for the credibility of witness Terry Bloss.
A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence. Mak, 105 Wn.2d at 726; State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996) ("prosecutors may argue inferences from the evidence, including inferences as to why the jury would want to believe one witness over another").
Butsch claims the prosecutor committed misconduct when, after characterizing the principal witnesses in the case as "hobos," "liars" and "criminals," she argued that Butsch "was one of them." A prosecutor may not argue in a way that appeals to the jury's passion and prejudice and invites them to decide the case on a basis other than the evidence. State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993); State v. Russell, 125 Wn.2d 24, 89, 882 P.2d 747 (1994). It is, however, "within the range of legitimate argument for the prosecuting attorney to characterize the conduct of the accused in language which, although it consists of invective or opprobrious terms, accords with the evidence in the case." State v. Perry, 24 Wn.2d 764, 770, 167 P.2d 173 (1946). Thus, courts have found no misconduct, or at least no reversible misconduct, where the evidence supported characterizations of the defendant as a "mad dog," a "beast," "a pervert," a "red-handed murderer," and a "killer of the most dangerous kind."
"These people were the defendant's friends. He was one of them. And what he would like you to do now is pretend like they're something different than he is, pretend that he's the person seated in court today with his shirt and tie looking cleanshaven, but the Clayton Butsch that I want you to think about is this one. Clayton Butsch in January in 2004 was one of these people." RP (Nov. 1, 2005) at 1978.
Perry, 24 Wn.2d at 769-70.
Id.
State v. Brown, 35 Wn.2d 379, 386, 213 P.2d 305 (1949).
State v. Evans, 145 Wash. 4, 17, 258 P. 845 (1927).
State v. Adams, 76 Wn.2d 650, 661, 458 P.2d 558 (1969), reversed on other grounds, 403 U.S. 947, 29 L. Ed. 2d 855, 91 S. Ct. 2273 (1971).
The remarks characterizing the witnesses in this case were mild by comparison, and the argument that Butsch was "one of them" was supported by the evidence and a fair response to defense counsel's portrayal of Butsch. The prosecutor characterized the witnesses as people who "lived lives of aimlessness, homelessness, crime, drugs, weapons." RP (Nov. 1, 2005) at 1887. This was undeniably true. Defense counsel acknowledged that "everybody's got convictions in this case," that the group consisted of "homeless drug-dealing people" who lived in "the world of drugs and alcohol and jail," and that they were all "liars." Id. at 1950-51, 1975; RP (Oct. 20, 2005) at 357. While defense counsel claimed Butsch was an "outsider in this group," the prosecutor argued that he was no different from his comrades. Id. at 356. This argument was supported by the evidence, including evidence that Butsch used drugs and had a prior conviction, and was a fair response to defense counsel's remarks. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994) (prosecutor may make a "fair response to the arguments of defense counsel").
Butsch next contends the prosecutor personally vouched for witness Terry Bloss when she argued that Bloss told the truth. Vouching will be found only when it is "clear and unmistakable" that counsel was expressing a personal opinion. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). The opposite is true here. The record establishes that the prosecutor was not conveying her personal opinion to the jury, but rather was simply arguing an inference from the evidence. See State v. Sandoval, 137 Wn. App. 532, 541, 154 P.3d 271 (2007).
Butsch argues that the prosecutor improperly injected her personal opinion into the case when she said the following during rebuttal:
And I think you will conclude with me when you look at the totality of this case that these people are not capable of doing what the defense hopes you will believe that they did. They are not capable of framing this defendant, planting this evidence in just the right way to make you believe that he's guilty.
. . .
. . . I would hope that you would know [the other prosecutor] and I well enough and Detective Heitzman well enough at the end of this case to not believe what the defense is telling you about framing people, interviewing them, manipulating them, trying to get them to say something that isn't true just so we can come in here and get a conviction. I hope you'd know us well enough by now to reject that wholeheartedly.
RP (Nov. 1, 2005) at 1982-83. But as the State correctly points out, defense counsel argued in closing that the State had manipulated the witnesses in various ways and "when the evidence didn't fit, they still went with that with everything they could create." RP (Nov. 1, 2005) at 1948. The prosecutor's retort was a fair response to these arguments. While the prosecutor's invitation to "conclude with me" was improper, that isolated remark generated no prejudice and, in the absence of any objection, was waived.
Butsch next contends the court abused its discretion when it denied a mistrial after witness Clough, in violation of a pretrial ruling, mentioned that Butsch had been in prison:
[STATE] Okay. Do you know how long before that it had been that he dated that girl?
[CLOUGH] It had to have been five, six years, I think.
[STATE] So quite a few years, he'd known her?
[CLOUGH] Yeah. He just got out, I guess he just got out of prison.
. . . .
[DEFENSE] Move to strike.
[COURT] It will be stricken.
RP (Oct. 20, 2005) at 492-93. In denying a mistrial, the court noted that the jury already knew from the evidence on the unlawful possession of a firearm charge that Butsch had a felony conviction. Butsch argues that, given Clough's entire testimony, the jury could have concluded "that because Butsch was in prison before, and was on trial for murder, Butsch was more than likely in prison for something serious like murder or some other violent crime." Statement of Additional Grounds (Nov. 29, 2007) at 34. In support, he points to Clough's testimony that "there's a bunch of murderers in there and people are doing some serious time." RP (Oct. 20, 2005) at 446.
But Clough also testified that he was in prison for property crimes, and the jury knew that other witnesses had served time for nonviolent offenses. Considering the jury's knowledge of Butsch's prior felony, the fact that virtually everyone involved had a criminal record or was implicated in criminal activity and the fact that the court immediately struck the testimony, any prejudice was minimal and the court was well within its discretion in denying the motion for a mistrial.
Butsch argues that the court abused its discretion and violated his right to present a defense when it excluded evidence that a .22 caliber rifle was found in Daffy's truck some weeks after the murder. He also asserts that his counsel was ineffective for failing to move for reconsideration of the ruling after the evidence was developed at trial." RP (Oct. 31, 2005) at 1821-22. There was no abuse of discretion or ineffective assistance.
As the trial court correctly noted when it excluded the evidence, there was, at that point, no "testimony that there's any connection between that rifle and the murder nor at this point has anyone put him at the scene of the murder." RP (Oct. 25, 2005) at 1135. During argument on this issue, Butsch mentioned a police report in which Clough was quoted as saying that Butsch shot the victim with "a .22 caliber rifle." Ex. 274. But that defense exhibit was never offered or admitted, and counsel never attempted to impeach Clough with it during his cross-examination. Although the defense asked Detective Heitzman if he knew about the report, he did not recall receiving it. Furthermore, defense counsel herself recognized that the mention of a "rifle" in the report might well be a mistake. The court did not abuse its discretion.
State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995) (evidentiary rulings reviewed for abuse of discretion).
Nor was counsel ineffective for failing to revisit this issue after additional evidence developed at trial. To prove ineffective assistance, Butsch has the burden of demonstrating both deficient performance and resulting prejudice, i.e. a reasonable probability that the outcome would have been different but for counsel's omissions. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption of effective representation, and a claim of ineffective assistance cannot be based on conduct that can fairly be characterized as a legitimate trial strategy or tactics. Id. at 335-36.
Butsch points out that firearm expert Evan Thompson did not rule out that a slug recovered from Butsch's body came from a .22 rifle. But that slug "was too mutilated to make a comparison" and there was no evidence that two guns were used in the shooting. RP (Oct. 27, 2005) at 1524. Significantly, Thompson testified that the other slug found in Butsch's body was fired by the derringer, that it was fired from the bottom barrel, and that a shell casing found in a trash bag at the scene was fired from the top barrel. Two other casings found in Butsch's bedroom were also fired from the derringer. There was no evidence of any other spent casings. In addition, the medical examiner testified that while he could not rule out that Vavricka's wounds came from a rifle, the wounds were "not really consistent with a rifle wound" and were probably caused by a handgun. RP (Oct. 28, 2005) at 1727. Last, while some evidence tenuously linking Daffy to the trailer did come in after the court's ruling, the evidence fell short of placing Daffy inside the trailer around the time of the murder.
The only evidence placing Daffy near the trailer the night of the murder was his initial, unsigned, and ultimately recanted statement to Detective Heitzman that he showed Lonnie Metteer the way to Butsch's trailer prior to the shooting, and a similar statement he allegedly made to Joey Wayland.
In sum, we conclude counsel's failure to ask the court to revisit its ruling excluding the rifle evidence was not deficient performance.
We also conclude the court was within its discretion when it excluded Joey Wayland's proposed testimony that Daffy said Butsch was "getting the blame" because he was not part of Daffy's crew. The court ruled that only statements impeaching Daffy's testimony would be allowed. The court permitted Wayland to testify that Daffy admitted being at the trailer on the evening of the murder, that Daffy said Butsch was on a date that night, and that the story about Butsch's cat was Daffy's idea "to help out Clayton and whoever did it." RP (Oct. 31, 2005) at 1833. The court did not allow Wayland to testify that Daffy said Butsch was getting the blame because that testimony did not specifically impeach anything Daffy said in court. That ruling was within the court's discretion. In addition, any error was harmless beyond a reasonable doubt because the evidence would have added little to Wayland's testimony, Wayland's credibility was severely damaged by his numerous convictions for crimes of dishonesty and the circumstances of his belated disclosure, and the same type of evidence came in through other witnesses.
B.J. Clough was impeached with equivalent statements he allegedly made concerning Daffy blaming Butsch, and Justin Matyas testified that Holly once said "she didn't want to do time for Daffy." RP (Oct. 31, 2005) at 1796.
Next, Butsch contends the court abused its discretion in denying his motion to suppress evidence relating to a photomontage shown to Lonnie Metteer two years after the murder. Whether to admit evidence of a photo identification or photomontage is subject to the sound discretion of the trial court. State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001). An identification procedure violates due process if it is "'so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.'" State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002) (quoting State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999)) . Such suggestiveness is normally found only when the defendant was the "only possible choice given the witness's earlier description." State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343 (2002). If the defendant fails to show the identification procedure was suggestive, the inquiry ends. Butsch has not made that showing.
Butsch claims the montage was suggestive "because it isolated [him] as the only one with light colored eyes." Statement of Additional Grounds (Mar. 15, 2007) at 15. Although Butsch does have somewhat lighter eyes than the suspects in the other photos, the difference is not dramatic and does not draw undue attention to his photo. Moreover, in his premontage descriptions of the assailant, Metteer said the shooter had hazel or brown colored eyes. All of the photos in the montage fit that description. The montage was not impermissibly suggestive and the court did not abuse its discretion.
Our resolution of this issue also defeats Butsch's claim that his counsel was ineffective for failing to prevent the presentation of the allegedly suggestive montage.
Butsch contends the court abused its discretion when it excluded a confrontation eight months after the murder in which Daffy threatened to kill Hughes and cut her up into a million pieces. He claims the State opened the door to such testimony when Hughes testified that she and Daffy were close friends and that they sometimes fought like brothers and sisters. The evidence, however, was inflammatory, had little if any relevance, and would likely have resulted in a mini-trial on the incident since the parties disputed the motivation for the threat. Hughes was not a witness to the murder and played a relatively minor role in the State's case. Considering the broad discretion afforded to courts in this area, we cannot say the court abused its discretion in excluding the evidence.
Butsch also challenges the court's reasonable doubt instruction, arguing that it should have included language indicating that a reasonable doubt as to the degree of the offense required a conviction on the lowest degree. This claim is meritless because the jury was not instructed on any lesser offense. State v. Meas, 118 Wn. App. 297, 306, 75 P.3d 998 (2003). In addition, to the extent Butsch challenges the instruction's reference to "possible doubt," his argument is controlled by our Supreme Court's recent decision in State v. Bennett, 161 Wn.2d 303, 310-18, 165 P.3d 1241 (2007) (concluding that instruction containing such language satisfies constitutional requirements).
Given the foregoing, we reject Butsch's claim that cumulative error denied him a fair trial. The cumulative error doctrine does not apply when, as here, there are only a few potential errors or irregularities that caused little, if any, prejudice to the defense. See State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
Affirmed.
FOR THE COURT: