Opinion
No. 50239-5-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-1-00284-6. Judgment or order under review. Date filed: 03/12/2002. Judge signing: Hon. Ronald Kessler.
Counsel for Appellant(s), Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Brian Martin McDonald, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Kevin Cruz appeals his conviction of two counts of aggravated murder in the first degree and two counts of attempted murder in the first degree based on the November 3, 1999 shootings at the Northlake Shipyard. Cruz claims that the trial court violated his constitutional rights by conducting an in camera hearing in his absence, that a statement by the prosecutor during voir dire constituted misconduct, that the trial court erred in making various evidentiary rulings, by allowing unconstitutional shifting of the burden of proof, by impugning defense counsel's integrity, and by improperly limiting discovery, and that cumulative error justifies reversal. Because Cruz fails to establish any error, we affirm.
FACTS
On November 3, 1999, a gunman wearing a green camouflage jacket, a hat and sunglasses, entered the Northlake Shipyard office, shot and killed Peter Giles and Russell Brisendine, and shot Patrick Ming and Mira Mach, injuring them. Two months later, on January 2, 2000, in Gas Works Park, Tim Walter found a backpack lined with foil and containing a gun, clothing and other items. The next day, Walter took the gun to the police and then identified items he found in the backpack but left in the park. The gun, later determined to be the murder weapon, was registered to David Anderson, who had reported the gun as stolen, suspecting that it had been stolen by his former roommate Kevin Cruz, who had been an employee at the shipyard. When police arrested Cruz on January 4, he admitted that the backpack was his but claimed that it had been stolen. Following investigation, the State charged Cruz with two counts of aggravated murder in the first degree and two counts of attempted murder in the first degree.
At trial, the State presented the theory that Cruz was angry over his rejected industrial insurance claim, the investigation of which had included videotape surveillance of Cruz by insurance investigators. The State called witnesses who testified that Cruz had threatened his employers, as well as witnesses who testified that they had seen the shooter on the day of the murders. The State presented testimony and DNA evidence linking Cruz to various items found in the backpack. Following trial, a jury found Cruz guilty as charged. During the sentencing phase of the trial, Cruz presented evidence of mental illness, and the jury could not agree on a verdict. The trial court imposed a life sentence. Cruz appeals, contending that the trial court committed multiple errors justifying a new trial.
ANALYSIS In Camera Hearing
Cruz first contends that he was denied his constitutional rights to be present, to conflict-free counsel, and to intelligently exercise his right to proceed pro se, based on a pretrial hearing held outside his presence on March 30, 2001. By letter dated February 22, 2001, directed to defense counsel Eric Lindell, the prosecutor requested discovery including `a declaration regarding the information you may use in any way during this litigation that was derived from your spouse's former representation of the shipyard.' Clerk's Papers at 938. The letter also stated, `it seems prudent, and I wish, to handle this informally and out of court.' Id. The transcript of the hearing reads as follows:
THE COURT: State v. Cruz. We're in chambers.
MR. LINEDLL: Judge, this is Eric Lindell, for the record. It was my request we be heard in chambers. The reason, as you know, I had a request from prosecutors I provided them with a declaration about my wife. I wanted to explain that. The reason I wanted to do it here is because, as you know, we've had some communication issues with Mr. Cruz. I mean, he thinks Mr. Small is in the Mafia, and that kind of thing.
The way we addressed that was, as you advised us before, I pretty much talked to Mr. Cruz solely, and that's fine. But you were accused of the crime and thought the police department was wrongly accusing you, and the prosecutor's office was wrongly prosecuting you, and then you heard in an unjustified manner that the counsel who is supposed to be helping you out against these accusations has a spouse who had some involvement with that business, you might develop some trust issues about your counsel, which I want to avoid. That's why I wanted to do this here. I think it will only take a couple minutes.
About in the spring or summer, I don't remember when we did the first view of the business, the shipyard business, there was a person — I think her name was Susan Smith. She goes by a different name now. I don't know what it is. She was an employee there who introduced herself to me and she said she used to work at my wife's firm. My wife is a law partner with Graham and Dunn, one of the bigger firms in town. They have a lot of clients. So I went home and said to my wife, `Do you know this person Susan Smith?' She didn't really know her. I said, `Well, she looks like this.' My wife said, `Oh, yeah, she used to work at the firm.'
Then when we did the evidence view one of the prosecutors, I don't remember which, said something about my wife having done work in the shipyard, so I asked my wife about it. She said, `I don't know. If I did, it was years ago. It wasn't anything substantial.' But she said, `I don't work for your firm, you don't work for my firm, so what's it matter?' I said, `You're right.' So when they brought that up, I didn't say anything about it.
I don't know that she's done any work for the shipyard, because we haven't talked about it. We've been married ten years. She's been a lawyer that whole time. I've been a lawyer that whole time. She's a land use attorney. I don't do any land use stuff. So we just don't talk about our work that much.
When I got this request from the prosecutors that I provide a declaration, I didn't read it that closely. I thought initially they wanted a declaration from her about me, but they apparently want one from me about her. But I don't know what they want the declaration to say. But the way I feel about it is I can't bring any evidence into trial that's not relevant. I'm not going to bring into evidence any evidence that would be inculpatory. The only evidence I would bring to trial is evidence that's relevant and exculpatory.
They want a declaration saying I won't use any evidence I get from my wife in this case. I don't think there is any, but what they're asking is that if there is, it would be exculpatory, and that I not use it, which I think, for one thing, is wrong. And two, I don't think there's anything there. And three, what I wrote Mr. Bradshaw is I just don't think it's calculated to do anything other than jerk my chain, frankly. That's why I brought this up.
My wife has nothing to do with this. If there's some relevance my wife has in this think for my wife's firm, that's something I don't know about. I don't think it's something she knows about.
They're not asking, as I understand it, that I declare anything about anything related to any conflict, because there isn't anything. There's no legal basis for anything like that. They just want some declaration I won't use some information I get from my wife. Which then Mr. Bradshaw wrote me his letter he said, `Let's take this up outside the hearing of the judge. Let's do it informally.' I wrote him back saying I wouldn't do it that way. I said, `I don't think it's for any purpose other than to cause trouble. I will bring it up with the judge.'
MR. BRADSHAW: Mr. Lindell is correct. I did write him, put in writing that I would like the matter handled in formally. He chose to make this a matter of record, thus, obviously, our presence today.
The context I wish to remind the court of that applies not only to this hearing, but our general or more global motion to compel defense discovery, when I've been making those motions Mr. Lindell has been quite clear that he wants to know what specific discovery I have in mind. I think that's illogical, but we've, nonetheless, tried to make specific requests. Over a year-plus time Mr. Lindell has never, when he's had multiple opportunities — I think he just acknowledged that — multiple opportunities to say, `Look, I'm not offering any defense information based on information gleaned from my wife's previous representation of the shipyard.' If he said that today, we're done with it.
MR. LINDELL: Well, excuse me, but I don't think we're done with it.
MR. BRADSHAW: Well, it —
MR. LINDELL: I would add —
THE COURT: One at a time, please.
MR. LINDELL: Okay.
MR. BRADSHAW: So in an attempt to make a specific request all we're asking is what defense discovery or what information is going to be forwarded or relied upon based on that information.
Now, why would that be relevant in this case? As the court knows, identification remains the primary defense, near as we can tell. There's been a refusal to endorse a mental defense.
At the time of the shootings, as the time of the murders there were many tip sheets forwarded, and all those tip sheets, of course, have been forwarded to defense counsel, and they've gone over those people thoroughly.
So when you just think about that example, what other suspects had a grudge against the shipyard, what other suspects had a motive, anything that could come in under the Maupin, other suspect standard information about the shipyard is potentially fruitful grounds. That's all we're asking. Mr. Lindell, with all due respect, operates in a straw man sort of defense. So once again, recasts my request initially as requesting that his wife do anything. I never have and do not ask Mrs. Lindell to do anything in this case.
Two, when I say `declaration,' all I want to know is what is the information, if any? It's not a motion to suppress, as was just implied. He can forward whatever legitimate admissible evidence the court allows him to, but the state, under 4.7, has a right to know about it. That's my response.
MR. LINDELL: I would like to know what involvement they think my wife has. The first ten months I had this case my wife didn't work at that firm. She works there part time. I mean, there's nothing, nothing that I could possibly provide him in a declaration about what I know about my wife's business, because I don't know anything about it. I just don't know about it. And, you know, there's just —
THE COURT: Doesn't that answer the question? Nothing.
MR. BRADSHAW: That does answer it, and they could have answered it some time ago.
THE COURT: All right. Okay. Then this is no different than anything else. If there's any discovery that's gleaned, it's to be provided.
MR. LINDELL: And I don't have to provide a declaration about anything.
THE COURT: No. It's on the record now.
MR. BRADSHAW: As far as the accusation about the motive for it, I won't respond to it, because I think it's vacuous.
THE COURT: Nobody asked me to do anything about it, anyway.
All right. As soon as Mrs. Cruz gets down here, we'll be on the record.
I propose that the notes of this hearing be sealed. Any objection to that? It's unlikely, but should this become public, then Mr. Cruz reads about it, then we wind up with more difficulty.
MR. LINDELL: Thank you.
MR. BRADSHAW: No objection.
MR. FOGG: No objection.
THE COURT: Okay. So ordered.
Report of Proceedings 3/30/01 Sealed Hearing at 2-8.
As the record clearly demonstrates, the State did not ask for the hearing, did not suggest that Lindell's wife's employment raised any potential conflict of interest in Lindell's representation of Cruz, and abandoned the subject upon Lindell's statement that he had no information from his wife. The court's only order resulting from the hearing was that the record be sealed.
Cruz relies primarily on Campbell v. Rice, 302 F.3d 892 (9th Cir. 2002) which was recently withdrawn for rehearing en banc, 386 F.3d 1258 (9th Cir. 2004), and in which a burglary defendant's attorney was arrested for a drug charge one month before trial and arraigned two days before defendant's trial by the same district attorney's office that was prosecuting the defendant. 302 F.3d at 895. On the first day of trial, without notice to defendant, the trial judge, prosecutor, and defense counsel met in chambers to discuss the potential conflict of interest, and the trial court concluded that there was no conflict. Id. at 895-96. On appeal, the Ninth Circuit concluded that the defendant's due process rights were violated when he was excluded from the hearing and never informed of the potential conflict, such that he was unable to assert his objections to counsel's continued representation or waive his right to conflict-free counsel. Id. at 898-99.
Not only has the Campbell opinion been withdrawn, the facts here are drastically different. This hearing was not for the purpose of discussing a potential conflict of interest and the trial court made no ruling addressing any potential conflict. On appeal, Cruz has presented no authority to support his contention that his attorney had a conflict of interest. To the extent the parties intended to submit issues to the trial court, the only question was whether defense counsel was required under CrR 4.7 to provide discovery to the State, a question that has nothing to do with Cruz's constitutional right to confront witnesses. As it happened, the trial court did not actually rule on any discovery matter because the State was satisfied that defense counsel had not obtained any evidence or information from his wife. Cruz fails to establish that the hearing was critical to the outcome of the trial or that his presence could have contributed to the fairness of the hearing. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987).
As to the contention that he was denied his right to proceed pro se, Cruz fails to establish error. As the State points out, there is no authority to support his apparent contention that a defendant has a right to learn all the details of his attorney's life just in case he might not like something and wish to proceed pro se.
Although Cruz refers repeatedly to the trial court's action of sealing the record, he does not assign error to the decision to seal the record or present any argument or authority challenging the action.
Prosecutorial Misconduct
Cruz next contends that a statement during jury voir dire constituted prosecutorial misconduct. At one point, defense counsel questioned the jurors about the burden of proof, stating, `Suppose at the end of all the evidence we don't put on anything, anything. We're going to, but suppose we don't.' Report of Proceedings 12/13/01 at 54. Later he questioned the jury about evaluating witnesses testifying about scientific evidence, asking the jury to suppose, `We have the prosecution witness who says, In my opinion, the DNA shows this. And we have a defense witness who says, In my opinion, the DNA shows this. Who is to be believed?' Report of Proceedings 12/13/01 at 59-60. He also asked them to `suppose the state produces a piece of evidence and we produce a counter piece of evidence.' Report of Proceedings 12/13/01 at 64.
Following a recess voir dire continued:
THE COURT: Okay. Mr. Savage?
MR. SAVAGE: Your Honor, I ran out of topics, for a change, so I'll give up.
THE COURT: Thank you. State?
MR. BRADSHAW: Thank you, Your Honor. . . . Good afternoon, once again. Just to pick up quickly on something Mr. Savage indicated, he directly pointed out defense does not have a burden of production in a criminal case. However, there of course is nothing preventing the defense from offering evidence.
MR. LINDELL: Object, Your Honor. Improper shifting.
THE COURT: Say it again.
MR. BRADSHAW: I stand by my premise.
THE COURT: Let me hear it again.
MR. BRADSHAW: Sure. As Mr. Savage indicated, defense has no burden of production, of producing evidence or witnesses. Any problem with that?
THE COURT: That's okay.
MR. LINDELL: Your Honor, there's more to it. That part is correct.
THE COURT: Keep going.
Q (BY MR. BRADSHAW): Thus, in the event defense does offer witnesses, or any evidence, all right, in that event would anyone here have a problem if the prosecuting attorneys vigorously scrutinized those witnesses? In fact, would you expect that? I see nods of heads. Hopefully that was a rhetorical question. I have approximately 58 minutes in which I can continue to quiz you. But by my estimation, including the questionnaire, you've been asked on the average approximately 384 questions apiece. With that and with confidence in this group, I waive the balance of my time, and I thank you sincerely for your patience.
Report of Proceedings 12/13/01 at 71-72 (emphasis added).
To prevail on a claim of prosecutorial misconduct, the defendant must establish that the prosecutor's conduct was both improper and prejudicial. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). The prosecutor's challenged remarks are reviewed 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. at 561.
To the extent that Cruz relies on State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996) he fails to demonstrate misconduct. In Fleming, during closing argument the prosecutor told the jury that in order to find the defendants not guilty the jury would have to find that the victim lied, was confused, or fantasized what happened; argued that there was no reasonable doubt because there was no evidence that the witness was lying or confused, and if there had been any such evidence, the defendants would have presented it; and stated that the defense had not explained the evidence. Id. at 213-15. Similarly, the prosecutor in State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986), disapproved of by State v. Blair, 117 Wn.2d 479, 491, 816 P.2d 718 (1991) mentioned the defendant's right not to testify and then focused on his failure to present any other witnesses to provide alternative explanations of the evidence.
Neither of these cases, nor any of the others cited, supports Cruz's argument that the prosecutor's single statement in voir dire in this case would constitute misconduct. Cruz presents absolutely no authority for his claim that the alleged misconduct was flagrant. The prosecutor was referring directly to defense counsel's prior statements regarding the jury's impartial consideration of evidence, no matter which side presented it. The prosecutor did not suggest that the defense would be required or expected to produce evidence. In these circumstances, the comments did not improperly shift the burden of proof.
Additionally, Cruz fails to demonstrate prejudice. During trial, the trial court instructed the jury on several occasions that the defense had no burden of proof and was not required to produce evidence. The jury is presumed to follow the trial court's instructions. State v. Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557 (1999).
Evidentiary Issues
Cruz next contends that the trial court improperly excluded `other suspect' evidence. The defense sought to introduce evidence that Kerry Pinard, a convicted felon whose height and weight match the initial descriptions of the shooter, and who generally wears a baseball cap, was in the area of the shipyard at the time of the shooting, and would admit to using disguises when committing previous crimes. Relying on State v. Rehak, 67 Wn. App. 157, 834 P.2d 651 (1992) and Leonard v. Territory, 2 Wash. Terr. 381, 7 P. 872 (1885), the trial court excluded the evidence, stating, `[W]hile there is evidence to establish that Mr. Pinard was indeed at the scene of the crime, there is insufficient evidence to establish that he had any intent to act on his ability to place himself at the scene of the crime.' Report of Proceedings 1/28/02 at 110.
In Rehak, the defendant sought to introduce evidence that the victim's son had a troubled relationship with the victim, knew where the murder weapon was kept, would have benefited financially if the defendant was convicted, and was unaccounted for at the time of the murder. 67 Wn. App. at 160-61. The court properly excluded the evidence however, because the mere possibility that the son could have traveled to the murder scene and back, without some indication of an intention to act on that ability, rendered the unsupported accusation of the son nothing more than speculation. Id. at 163. In Leonard, the court held that the exclusion of `other suspect' evidence was error where the defendant offered a witness who would testify `that a person other than [the defendant] resided in the neighborhood of the supposed homicide, was there on the day of it, entertained hostile feelings towards the deceased, and had threatened to kill him.' 2 Wash. Terr. at 396.
Cruz relies on State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932), State v. Maupin, 128 Wn.2d 918, 913 P.2d 808 (1996), and State v. Clark, 78 Wn. App. 471, 898 P.2d 854 (1995). In Downs, shortly after a burglary, police discovered the defendants, armed with a gun, in a parked car within two miles of the crime scene, with money spread around the car. 168 Wash. at 664-65. At trial, the court properly refused to admit the defendant's proposed evidence that a well-known burglar named Madison Jimmy was in town and had the opportunity to commit the burglary, because there was no evidence to show that Madison Jimmy was in any way connected with the burglary. Id. at 667-68.
In Maupin, the trial court erroneously excluded evidence proposed by the defense that a witness had seen the kidnapping victim with someone other than the defendant after the time of the kidnapping, because such evidence `point[s] directly to someone else as the guilty party[.]' 128 Wn.2d at 928.
In Clark, the trial court improperly excluded defense evidence that another person had the motive, opportunity, and ability to commit the arson, and had taken steps against the defendant indicating an intent to harm him. 78 Wn. App. at 479. Because no evidence linked either the defendant or the proposed other suspect directly to the fire, the State's case against the defendant was wholly circumstantial, and the defendant's evidence of the other suspect was sufficiently strong to allow for its admission. Id. at 480.
Here, as the trial court recognized, Cruz offered merely that Pinard, a felon, was in the area, had the opportunity to commit the murders, and may have matched a general description of the shooter. Unlike the circumstances in Leonard or Maupin, there was no evidence pointing directly to Pinard as the guilty party. As in Rehak and Downs, presenting evidence to the jury that Pinard had the opportunity to commit the crime would invite nothing but pure speculation. And unlike the circumstances in Clark, there was no evidence that Pinard had threatened the victims or taken any steps indicating an intent to harm them, or that he had any motive to shoot the victims. Cruz fails to demonstrate that the trial court abused its discretion by excluding the evidence.
Cruz also argues that the trial court abused its discretion by admitting as excited utterances Michael Sherlock's testimony regarding statements Giles made to him about Cruz. Under the excited utterance exception to the hearsay rule, a statement may be admitted where a startling event or condition has occurred, the declarant is still under the stress or excitement caused by the event or condition, and the statement is related to the startling event or condition. ER 803(a)(2); State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992). A trial court's admission of statements as excited utterances is reviewed for abuse of discretion. Id. at 688.
Cruz contends that because Giles was not under the stress of the event when he made the statement, but was simply `blowing off steam after a work day,' the trial court erred by admitting the statement.
At a pretrial hearing, Sherlock, who rented space below the shipyard office for his boat repair business, testified that Giles came down to his shop and said that Cruz had threatened him. Sherlock testified that Giles, who was `pretty sure of himself,' `quiet,' `a good guy,' `real easygoing,' `always had a smile,' `always laughing' and `kidding,' with `a good attitude about everything,' came into the shop and appeared `pretty nervous,' `pretty worried,' `worked up,' `scared,' `concerned,' and `lit up one cigarette right after another,' while he told Sherlock about the threat, saying, `Cruz came in and basically threatened me and scared the crap out of me.' Report of Proceedings 12/18/01 at 37. Based on this record, it was not unreasonable for the trial court to determine that Giles was still under the stress of the Cruz's threatening visit when he spoke to Sherlock. Cruz fails to establish an abuse of discretion.
Cruz next contends that the trial court erred by allowing Detective Boatman to testify about statements made by Angela Mills under ER 801(d)(1)(ii). A prior out of court statement by a witness is not hearsay if the declarant testifies and is subject to cross-examination and the statement is consistent with her testimony and offered to rebut an express or implied charge of recent fabrication. ER 801(d)(1); State v. Makela, 66 Wn. App. 164, 168, 831 P.2d 1109 (1992). The trial court's determination of admissibility under this rule will not be reversed absent a showing of manifest abuse of discretion. Id.
Angela Mills, who lived next door to Cruz, testified that Cruz came over to her house `extremely upset' and said that `he was angry at his bosses,' that they `were going to be sorry and that he was going to make them pay.' Report of Proceedings 1/10/02 at 74-75. She stated, `He was angry with them because he was supposed to be injured but wasn't and was caught, and so he was furious.' Id. at 75. She testified that `over the period of a couple of days' she heard him make similar statements 20 times, and that `He said he would make his boss pay, that he could kill them.' Id. at 76. When she saw the news report of the shootings, she called the police and reported Cruz's statements.
On cross-examination, defense counsel questioned Mills about a transcript of a taped statement she gave to police on January 6, 2000, asking her to confirm that the transcript did not mention any threat to kill. Defense counsel also questioned Mills repeatedly about the reward money offered for information leading to a conviction. In response, the trial court allowed the State to call Detective Boatman, who testified that he spoke with Mills over the phone on January 6 and she told him that Cruz had threatened to kill his boss, and she did not ask about or refer to the reward.
The record reflects that defense counsel attempted to discredit Mills by showing that the January 6 interview transcript did not refer to a death threat and implying that she changed her testimony to include a death threat after hearing about the reward. In these circumstances, Cruz has failed to show a manifest abuse of discretion in the trial court's decision to allow Detective Boatman to testify regarding Mill's prior statement to him on January 6 that Cruz had threatened to kill his boss, consistent with her in-court testimony.
Cruz also argues that the trial court erred by allowing the State to call Dr. Richard Gelinas as an expert witness in its rebuttal case, arguing that his testimony was offered merely to bolster the testimony of its forensic scientist and not in response to evidence presented in the defense case. In its case in chief, the State called Jodi Sass, a forensic scientist with the Washington State Patrol Crime Laboratory, to testify regarding the DNA testing she performed on certain physical evidence. The defense then called Sass during its case, questioning her in detail about her testing methods and results, as well as the amount of material she tested, and about National Research Council recommendations regarding preservation of evidence for additional testing or retesting.
The State then sought to call Gelinas in rebuttal, explaining to the trial court that his testimony would be in response to the defense attack on the reliability of Sass's work and stating,
They've addressed issues of minor profile versus major profile; whether she has sufficient DNA; the importance of a retest; and quality control procedures.
What Dr. Gelinas will testify to [is that] he is somebody who reviews electropherograms all the time. He's somebody who has extensive training in the interpretation of short tandem repeat data. That he performed an independent review of the data in this case. And that the points that were made by the defense or attempted to be made through defense through Ms. Sass don't cause him any concern at all. That there's clearly — that he thinks the fact that there are allele calls in which they identify Kevin Cruz as the donor of the DNA evidence, he thinks, they're quite conservative. And to that he, I guess, would disagree with the points that were made by the defense this morning.
Report of Proceedings 2/4/02 at 69-70.
Over the defense objection, the trial court allowed the State to call Gelinas, stating, `It is proper for the state to offer evidence in rebuttal as to questions asked Ms. Sass in terms of the NRC guidelines . . . Actually, I don't see any problems with the testimony as defined by the state[.]' Report of Proceedings 2/4/02 at 71-72. Gelinas, a scientist at an independent lab, testified that he was asked to conduct an independent review of Sass's case notes. Gelinas testified that Sass's case notes and the data `looked fine,' and that he did not see any need for additional testing. Gelinas explained that the results of the tests were `clean' and `simple to interpret,' that Sass excluded some data as inconclusive that he believed would have made a stronger case, and that Sass took pains in her case notes to be clear about the samples she used following the failure of others in the lab to follow protocol when opening the samples.
Rebuttal evidence is offered to reply to new matters presented by the defense and admissibility of such evidence is a question within the trial court's discretion, such that `error in denying or allowing it can be predicated only upon a manifest abuse of that discretion.' State v. White, 74 Wn.2d 386, 395, 444 P.2d 661 (1968). Although he cites authority for this standard, Cruz offers no authority or facts to demonstrate a manifest abuse of discretion here. Instead, he contends, as repeated several times at trial, that the testimony was admitted only to `bolster' Sass's credibility and test results. He also contends that the error was prejudicial because the DNA test was hotly contested at trial and Gelinas's testimony `likely convinced the jury of the reliability of the test,' thereby effecting the outcome of the trial. Brief of Appellant at 55. Based on this record, Cruz fails to demonstrate a manifest abuse of discretion. The defense examination of Sass raised the inference that the data did not support Sass's conclusions and that her results should have been validated or duplicated with retesting. The trial court did not manifestly abuse its discretion by allowing the State to call Gelinas who had independently reviewed Sass's work in rebuttal.
Cruz next argues that the trial court erroneously admitted irrelevant and prejudicial evidence by allowing the State to cross-examine Cruz's mother, Rosie Bittner, about the aluminum foil on Cruz's bedroom wall, and by allowing the State to show a videotape taken by an insurance company investigator on April 17, 1999. He contends that neither was relevant, but both were extremely prejudicial, in that the foil could have caused the jury to conclude that Cruz had some undefined mental illness and therefore committed the crime, and the tape shows Cruz making an obscene gesture which could have influenced the jury to believe that Cruz `had a propensity for anger and assaultive behavior.' Brief of Appellant at 58-59.
We review the trial court's decision to admit or exclude evidence for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). As the State points out, defense counsel mentioned the foil on the bedroom walls in his opening statement, and did not object to the admission of a picture of Cruz's bedroom with foil on the walls, Exhibit 158, despite the fact that it was introduced during the testimony of Cruz's neighbor Rheajean Walker, who testified that the last time she was in his room, there was foil on the windows but not the walls. In denying the defense motion to exclude Bittner's testimony regarding foil on the walls, the trial court observed that the foil on the walls tended to relate the backpack, that also had foil, to Cruz, and was therefore relevant. Aside from arguing that the foil in the backpack was a `space blanket,' Cruz fails to demonstrate that the trial court's determination of relevance was erroneous. Moreover, Cruz fails to demonstrate prejudice where other evidence of the foil on the walls had already been admitted.
At a pretrial hearing, the defense objected to the introduction of the insurance investigation surveillance videotapes, arguing that they were not relevant to the events of November 3, 1999, and that the tapes were prejudicial, because the jury would get a `certain aura' when they learned that Cruz had been the subject of surveillance and videotaping. The State argued that the investigation and denial of the claim formed Cruz's motive for the murders. The trial court admitted the tapes as relevant to the State's allegations concerning motive, showing that Cruz knew he was presenting a false claim and knew he was being videotaped in an investigation of that claim. The trial court determined that the relevance to motive outweighed any possible prejudice, but directed the State to edit out the portions of the tape showing Cruz with a BB gun, because they were irrelevant. At trial, the defense objected to the admission of the April 17 videotape because it was taken two weeks after Cruz's doctor had said that he was back to pre-injury status, and it was therefore not relevant. Here, Cruz argues again that the April 17 tape was irrelevant because Cruz's physical condition on that day was inconsequential to the State's theory and it could have confused the jury, such that the jurors believed the taped events occurred before Cruz's doctor said he was injury-free. He also contends that it was unfairly prejudicial to show the jury a videotape of Cruz making an obscene gesture. Cruz again fails to demonstrate any abuse of discretion. According to the State's theory of the case, Cruz shot the shipyard employees because he was angry about the denial of his insurance claim. Evidence that he knew he was being investigated was relevant to the State's theory of his motive, and the trial court properly weighed the relevance against potential prejudice on the record before admitting it. ER 404(b); State v. Wade, 98 Wn. App. 328, 334, 989 P.2d 576 (1999); Stenson, 132 Wn.2d at 702-03.
Shifting the Burden of Proof
Cruz next contends that testimony by Sass and Gelinas improperly shifted the burden of proof regarding DNA testing to the defense. In particular, over a defense objection, the trial court allowed the State to ask Sass whether the physical evidence remained available to either side. During cross-examination by the defense regarding retesting, Gelinas suggested, `If there were any question, perhaps defense might wish to reexamine[.]' Report of Proceedings 2/4/02. Cruz acknowledges that after each of these statements, the trial court instructed the jury that the defense had no burden of producing evidence.
Cruz relies primarily on Hayes v. State, 660 So.2d 257, 265 (Fl. 1995) in which the prosecution was allowed to question a sheriff's crime lab employee about whether the defense had asked for tests of certain physical evidence, the witness was allowed to add that the crime lab had complied with such requests from other defense attorneys in the past, and the prosecutor made similar comments in closing arguments. The trial court's curative instruction failed to remedy the error by informing the jury that although the defense did not have an obligation to test the evidence, it did have the opportunity to have it tested. Id. at 266.
In State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995) our Supreme Court rejected a claim that the prosecutor had shifted the burden by asking defense expert witnesses whether they tested the forensic evidence, stating:
Any possible implication that the Defendant had the burden of proof was corrected by this instruction regarding the presumption of innocence and the State's burden of proof. While it is questionable whether asking scientific experts whether they did, or could have, conducted duplicate testing is error at all, in this case any possible error in confusing the jury as to the burden of proof was cured by the trial court's simultaneous curative instructions.
125 Wn.2d at 595 (footnotes omitted); see also State v. Bebb, 44 Wn. App. 803, 815-16, 723 P.2d 512 (1986), aff'd, 108 Wn.2d 515, 740 P.2d 829 (1987); State v. Brett, 126 Wn.2d 136, 176, 892 P.2d 29 (1995). Here, as in Gentry, Cruz fails to establish that the trial court's immediate curative instructions were insufficient to dispel any confusion about the burden of proof. State v. Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557 (1999) (jury is presumed to follow trial court's instructions).
Right to Counsel
Cruz contends that trial court's misconduct denied his right to effective assistance of counsel. During cross-examination of forensic scientist Margaret Barber, defense counsel repeatedly asked about DNA Advisory Board and National Research Council recommendations regarding error rates despite her testimony that she was not familiar with the organizations. After sustaining the State's objection for lack of foundation several times, the trial court stated, `Mr. Conroy, if you persist upon trying to offer evidence that you don't have that's not from the witness stand, I'm going to sustain these objections. So I suggest you put these questions in a different order.' Report of Proceedings 1/31/02 at 81-83. Following a side bar and the trial court's denial of a defense motion for a mistrial, the trial court instructed the jury,
Before we took to the side bar here there was some discussion with counsel in front of the jury. If you view any of my comments regarding Mr. Conroy as impugning his integrity in any way, it was not my intent to do so, and you should disregard it, if you view it that way.
Report of Proceedings 1/31/02 at 94.
Cruz relies on State v. Moneymaker, 100 Wash. 463, 464, 171 P. 253 (1918) in which the trial court remarked to defense counsel, `if you are trying to hide something from this jury the court is not going to help you,' and State v. Phillips, 59 Wash. 252, 257, 109 P. 1047 (1910) in which the trial court, either in jest or in anger, stated that defense counsel would take exception `[e]very time the court speaks' and `[e]very time the court bats his eye.' But as the State asserts, the trial court may properly rebuke defense counsel where, as here, rather than a gratuitous comment by the judge or a statement that actually reflects on the integrity of counsel, the trial court merely responds to improper behavior. `Rebukes of an attorney within the presence of the jury are within the discretion of the trial court and do not warrant a reversal unless prejudice is shown.' State v. Stamm, 16 Wn. App. 603, 615, 559 P.2d 1 (1976).
The record reflects that after the State's repeated objections on the same grounds, the trial court admonished the defense attorney, ending with a direction to `put these questions in a different order.' Cruz fails to demonstrate that the trial court's comment actually impugned defense counsel's integrity or approached the impropriety of the comments in Phillips or Moneymaker. And Cruz fails to establish prejudice in light of the trial court's immediate curative instruction.
Personnel Files
Prior to trial, Cruz sought to discover the internal personnel files of the State's police and crime lab witnesses. The trial court ordered the State to produce the files to the court, conducted an in camera review, and released three pages from the personnel files of the crime lab witnesses, finding `these three pages not necessarily relevant, but possibly could lead to relevant information in terms of impeachment.' Report of Proceedings 12/6/01 at 14. The trial court later stated that a review of the police personnel files contained no discoverable material. Cruz did not object below or request further discovery of the materials.
On appeal, Cruz states in his assignment of error: `The trial court may have erred in not disclosing information following its in camera review of state witnesses' personnel files.' Brief of Appellant at 2. Relying primarily on Pennsylvania v. Ritchie, 480 U.S. 39, 94 L. Ed. 2d. 40, 107 S. Ct. 989 (1987) (discovery at issue was Children Youth Services investigation files of one complaint by sexual abuse victim against defendant and one complaint by a third party on behalf of victim), State v. Mines, 35 Wn. App. 932, 671 P.2d 273 (1983) (medical files of State's witness where defendant challenged competence to testify), and State v. Wolken, 103 Wn.2d 823, 829, 700 P.2d 319 (1985) (regarding Franks hearing and consideration of confidential informant testimony, `The appellate courts will not act as a rubber stamp for the trial court's in camera hearing process'), Cruz contends that this court should review the records to determine whether there was material that should have been disclosed to defense counsel.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
Relying on State v. Blackwell, 120 Wn.2d 822, 828, 845 P.2d 1017 (1993), the State argues that Cruz was not entitled to the discovery or an in camera review in the first place because he failed to make a showing of materiality. In Blackwell, defense counsel stated in court that she believed one of the officers involved in the arrest of the defendant was a racist, but failed to submit an affidavit or make any statement that he was racially motivated when making the arrest at issue. Id. at 829. Our Supreme Court held that `defense counsels' broad, unsupported claim that the police officer's personnel files may lead to material information' did not justify disclosure of the officer's personnel files or require the trial court to conduct an in camera review. Id. Because `a defendant must advance some factual predicate which makes it reasonably likely the requested file will bear information material to his or her defense[,]' and the record does not reveal any such showing by Cruz, the trial court was not required to review the personnel files, and this court need not review them. Id. at 830.
Cumulative Error
Finally, Cruz contends that the cumulative effects of nonreversible errors materially affected the outcome of the trial, requiring reversal. But because Cruz fails to demonstrate any error, he also fails to establish that he is entitled to relief on this ground.
Affirmed.