Opinion
No. 55350-0-I.
May 22, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-02192-6, Ronald Kessler, J., entered November 29, 2004.
Counsel for Appellant(s), Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Affirmed in part and remanded by unpublished opinion per Dwyer, J., concurred in by Grosse and Becker, JJ.
A jury convicted Daniel Erickson of first degree felony murder predicated on first degree robbery and second degree intentional murder. In sentencing Erickson, the trial court imposed a five-year firearm sentence enhancement premised upon the jury's finding, by special verdict, that Erickson possessed a deadly weapon when he committed the homicide. Erickson appeals, contending that: (1) based on the holding in State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), cert. granted, U.S., 126 S. Ct. 478, 163 L. Ed. 2d 362 (2005), the trial court's imposition of a firearm sentence enhancement infracted his right to trial by jury; (2) the trial court's exclusion of evidence purportedly implicating another individual as a suspect breached his right to present a defense; (3) remarks made by the prosecuting attorney during opening statement and closing argument denied Erickson a fair trial and due process of law; (4) Kent Police Detective Holt's testimony concerning the homicide investigation contravened Erickson's right to confront witnesses; (5) Detective Holt's testimony concerning Erickson's behavior during a police interview offended Erickson's right to trial by jury; (6) the testimony of three witnesses concerning the effects of drug use on Erickson and another individual infracted Erickson's right to a fair trial; (7) a witness's testimony revealing the nature of a previously charged offense underlying a warrant issued for Erickson's arrest deprived him of a fair trial; (8) the accumulation of purportedly prejudicial and irrelevant evidence vitiated his right to a fair trial; and (9) Erickson's trial counsel provided ineffective assistance. We affirm the conviction but remand for resentencing based on the trial court's wrongful imposition of the firearm sentence enhancement.
At sentencing, the trial court ruled that the second degree intentional murder conviction merged with the first degree felony murder conviction.
FACTS Facts pertaining to underlying offenses
At approximately noon on June 22, 2003, Rodney Kopp was found dead in his car outside a shopping mall in Kent. He had been shot in the head at point blank range.
Earlier that day, Erickson had telephoned Maurice Jackson, who frequently sold Erickson cocaine, to arrange to buy cocaine. Based on recent conversations with Erickson, Jackson believed that Erickson was too destitute to purchase cocaine that morning. Jackson nevertheless sent Kopp, who occasionally sold and delivered cocaine for Jackson, to sell Erickson either a half ounce of crack cocaine for $300 or a quarter ounce for $150.
At approximately 10:45 that morning, Kopp met Erickson in a fast food restaurant parking lot to consummate the transaction. Kopp had not previously been introduced to Erickson. When Kopp met Erickson, Kopp found Erickson's affect to be unsettling. Kopp used his cell phone to call Jackson and to report that Erickson was acting "fidgety." Jackson instructed Kopp to complete the sale.
Jackson expected Kopp to call him shortly thereafter to report that the transaction had been completed, as was his usual practice. When Kopp failed to call, Jackson telephoned Kopp's cell phone.
Erickson answered Kopp's cell phone and spoke with Jackson. Erickson told Jackson that Kopp had entered the fast food restaurant. Jackson told Erickson to take the phone to Kopp. Instead, Erickson hung up.
Jackson immediately called Erickson's cell phone. Erickson answered and again spoke with Jackson. Erickson reported that he was sitting in the parking lot of the fast food restaurant, that police officers had arrived, and that he was in the process of smoking cocaine. Erickson told Jackson that Kopp had departed in a black Impala with several individuals Erickson did not recognize.
Jackson never again heard from Kopp. The restaurant's security videotape later revealed that Kopp had not entered the restaurant that day.
Kopp's cell phone was not recovered after the murder. Cell phone tower records showed that numerous calls had been made to Kopp's cell phone, both before and shortly after the murder, from 8:51 a.m. to 12:26 p.m. The calls were forwarded to Kopp's phone from cell towers in the general area of the fast food restaurant and the shopping mall. The last time Kopp's phone was used for an outgoing call was at 10:47 a.m. A call to Kopp's cell phone activated a cell tower a quarter mile from Nicole Moore's house at 12:12 p.m. Kopp's body was discovered approximately fourteen minutes later.
About two weeks before Kopp's death, Erickson borrowed an AR-7 .22 caliber handgun from his friend Bob Linkous. The gun, which Erickson had previously sold to Linkous, had both a detachable rifle barrel and a detachable aftermarket pistol barrel. When Erickson borrowed the gun from Linkous, Erickson attached the pistol barrel, and left the rifle barrel with Linkous.
On June 26 or 27, Erickson returned the AR-7 to Linkous. Erickson did not return the pistol barrel. Erickson told Linkous it was lost. The pistol barrel was never recovered. Linkous later gave the AR-7, minus the pistol barrel, to police.
Prior to trial, Evan Thompson, a ballistics expert from the Washington State Patrol Crime Laboratory, examined the AR-7. While Thompson was unable to determine whether the bullet recovered from Kopp's body during an autopsy had been fired from Linkous's gun without testing the pistol barrel, he did conclude that the AR-7 was capable of firing .22 caliber bullets, such as the bullet that killed Kopp.
Facts pertaining to police interview of Erickson
On July 3, 2003, Kent Police Detective Holt questioned Erickson concerning Kopp's death. During the interview, Erickson acknowledged buying cocaine from Kopp at the fast food restaurant and acknowledged that he had answered Kopp's cell phone when Jackson called. Erickson asked Detective Holt if the police had found the murder weapon. He also inquired as to whom the police had determined to be the main suspect in the killing. Detective Holt did not answer these queries.
Detective Holt inquired whether Erickson had ever borrowed a pistol. Erickson reported that he had not, although he told Detective Holt that he had borrowed a rifle in early June.
At trial, Detective Holt testified that Erickson told her that he borrowed `a semi-automatic long rifle with a ventilated custom barrel,' that the gun barrel was `about two feet long' and that `he kept it until he was done dealing with [Jackson], then he gave it back to [Linkous].' Verbatim Report of Proceedings (VRP) (June 16, 2004) at 138.
Later in the interview, Detective Holt informed Erickson that the police knew that he had borrowed the AR-7, configured as a pistol, from Linkous. Detective Holt also told Erickson that security videotape from the fast food restaurant demonstrated that Kopp had not entered the restaurant, contrary to Erickson's version of events.
Erickson then began crying, stood up, and hit his head against the wall of the interview room. He then put his hands on his face and sat curled up in a "fetal position."
First trial
Erickson was subsequently arrested and charged with first degree premeditated murder or, alternately, felony murder predicated on first degree robbery, and second degree intentional murder. He was tried twice. The jury in the first trial acquitted Erickson of first degree premeditated murder, but was unable to reach a verdict on the charges of first degree felony murder predicated on first degree robbery, second degree intentional murder, and the deadly weapon sentence enhancement, resulting in a mistrial as to these charges.
Second trial
Erickson was subsequently tried again on the charges of first degree felony murder predicated on first degree robbery, and second degree intentional murder, as well as on the deadly weapon sentence enhancement allegation.
a. Evidence of other/additional suspect
Before the second trial, the prosecution moved the trial court to bar Erickson from introducing evidence implicating Shawn Thornton as a suspect in Kopp's murder.
Erickson sought to offer the following evidence that Thornton was a possible suspect in Kopp's death: (1) Nicole Moore would testify that Thornton was at Moore's house about the time the nearby cell tower was activated by Kopp's phone; (2) Moore would testify that Thornton had in his possession a .22 or .25 caliber handgun, a cell phone, and cocaine; (3) inmate Darnell Webster would testify that Thornton admitted being present at Kopp's killing, but said that Erickson had pulled the trigger; (4) Webster would also testify that Erickson admitted being present at the killing, but said that Thornton had pulled the trigger; (5) a letter dated September 9, 2003, signed by "John Hancock," was received by the criminal division of the King County Prosecutor's Office, and implicated Thornton in the crime; and (6) if Erickson testified, he would testify that Thornton admitted lying to police about the caliber of a gun he owned and about the fact that he had sold it.
A State cell phone tower expert would testify that at 12:12 p.m., a call was made to Kopp's cell phone. That call activated cell tower 53, which is located a quarter mile from the house Moore rented from Erickson.
A State witness would testify that the cell phone Moore saw Thornton carrying was not Kopp's phone; Kopp's cell phone was never recovered.
The trial court ruled that Webster could testify but excluded the other evidence concerning Thornton unless Webster testified. The trial court indicated it would revisit this ruling in the event that Webster testified. Neither side called Webster as a witness.
b. Prosecution remarks concerning absence of other suspects
In opening statements, the prosecuting attorney commented, "There is simply no suspect in this case other than Mr. Erickson." In closing argument, the prosecuting attorney argued:
[Erickson's] claim is in essence that it's not him. Somebody else did this. Some unidentified person undisclosed by all investigation, undisclosed by all evidence, undisclosed by all the witnesses who were interviewed, where there's absolutely no shred or scintilla of evidence to suggest that some other person committed this crime.
The prosecuting attorney also made remarks indicating a dearth of other suspects at least half a dozen times during his closing argument. Erickson did not object to any of these remarks.
c. Detective Holt's testimony concerning the investigation
At trial, Detective Holt testified concerning police interviews with 13 of Kopp's associates.
During direct examination, the prosecuting attorney asked Detective Holt whether any individual reported having seen Kopp after he met with Erickson. Detective Holt replied, "No, no one." This testimony was introduced without objection.
Subsequently, the prosecuting attorney asked whether any of the people Detective Holt interviewed provided information that the detective could follow up on regarding Kopp's whereabouts. Erickson's objection to this question was overruled. Detective Holt responded that she obtained no such information.
This question followed two questions which Erickson objected to on the basis that the questions would elicit hearsay in their answers. These objections were sustained, and no answers were put before the jury.
The prosecuting attorney next asked Detective Holt whether the witnesses interviewed provided "any information" that the detective could follow up on regarding the whereabouts of Kopp's car after he met Erickson. Detective Holt responded that "there was no information received of [Kopp's] whereabouts after he met with Erickson."
This question, similarly, followed two questions which Erickson objected to on the basis that the questions would elicit hearsay in their answers. These objections were, likewise, sustained, and no answers were put before the jury.
d. Detective Holt's testimony concerning Erickson's interview
Detective Holt testified that Erickson, during the interview with police, appeared to be "manipulative" in that "he was trying to gain information about [the] case that I wasn't going to divulge." There was no objection to this testimony.
On cross examination, defense counsel asked, "When you testified that [Erickson] described this weapon as a rifle rather than a pistol you're implying that he was being deceptive on that, aren't you?" Detective Holt responded, "Yes." Defense counsel then asked, "But on the other hand, if its proper name is, for instance, an AR-7 camping rifle or a[n] AR-7 rifle, the person might refer to that as a camping rifle regardless of what kind of [barrel] it has on it, right?" Detective Holt replied:
It was clear to me he didn't borrow the rifle section from Mr. Linkous, he borrowed the pistol section. So, you know, when I'm interviewing him and I'm listening to what he's saying, I knew he left out the pistol portion of it. He [was] talking about a rifle. So yes, I considered that as possible deception.
Defense counsel stated: "But it could also be that he thinks of it as a rifle. In which case there would be no deception involved." Detective Holt replied, "Correct."
e. Testimony concerning Erickson's drug use and finances and a witness's drug use
At trial, the prosecuting attorney asked witness Ted Lipps to tell the jury how his cocaine addiction affected him. Lipps replied, "As a result of smoking cocaine I lost my business, I lost my house, I lost my friends, lost my daughter and my wife was out on the street for five weeks. We lost everything." This question and testimony were not objected to. Later, the prosecuting attorney asked, "Why did your addiction to cocaine cause you to lose so much?" Erickson's trial counsel objected on the grounds of relevance; the court overruled the objection. Lipps responded, "I couldn't get enough. They didn't make enough of it for me and I would do anything and everything to get it." Defense counsel again objected on the grounds of relevance and moved to strike the testimony. This objection was overruled and the motion denied.
VRP (June 14, 2004) at 149.
Id. at 150.
The prosecuting attorney asked Linkous whether Erickson had used cocaine on various specific occasions in the months before the homicide and whether Erickson had borrowed money from Linkous in the days following the homicide. Linkous denied knowing whether Erickson was using cocaine on the occasions about which the prosecutor inquired. Linkous admitted loaning Erickson $150 in the days following the homicide but stated that he did not know whether Erickson used the money to buy drugs.
The prosecution asked Paul Harjehausen, manager of a motel where Erickson had resided, about Erickson. Harjehausen stated that, in his opinion, Erickson was "somebody to watch" and that Erickson appeared to have been on drugs on an unspecified occasion before Kopp's homicide.
VRP (June 16, 2004) at 24.
f. Witness's reference to facts underlying previous warrant for arrest
Prior to trial, Erickson stipulated to the admissibility of the fact that he had an outstanding warrant for his arrest at the time of the crime. The pre-trial ruling allowed the State to mention a "felony warrant" but precluded reference to the nature of the offense, which was assault in the fourth degree and unlawful imprisonment under domestic violence circumstances.
At trial, witness Andy Larson testified that the warrant "was for D.V." 6/15/04RP 181. Defense counsel objected and moved for a mistrial. The objection was sustained; the motion for mistrial denied.
g. Remarks of prosecuting attorney during trial
In his opening statement, the prosecuting attorney incorrectly stated that Erickson had arranged to meet Kopp at the mall, where his body was later found, rather than at the restaurant, where the drug deal occurred. Also in opening statement, the prosecuting attorney said: (1) This case "involves a drug addict named Daniel Erickson, who's seated over here"; (2) "This case is about the effect of drugs on a person's life, about the fact that you do things you never thought you would do, including murder"; and (3) "Erickson's decline occurred before this murder. As I said, he was a crack cocaine addict."
In closing argument, the prosecutor stated, in reference to the people surrounding the crime, "These are crack addicts and they are desperate." He continued:
Ted Lipps told you that his life became all about getting the next fix. Ted Lipps lost his child, he lost his house, he lost his business, he lost everything. So did Dan Erickson. That's exactly what happened to him. He lost his house, inevitably his girlfriend, he started selling his possessions. He lost everything, and at the end he had nothing but that desire to get his next fix.
Also in closing argument, the prosecuting attorney asked, "Why did Dan Erickson make up the story about what happened during that drug deal on June 22nd? Why did he lie about what happened?" Regarding Erickson's statement that Kopp left with unnamed individuals in a black Impala, the prosecutor argued, "No one in this close knit circle has ever seen a black Impala, the police can find no evidence of a black Impala, there is no black Impala." He made it up and he lied to cover what he's doing."
h. Jury verdicts, post-trial procedural rulings
Following the second trial, the jury found Erickson guilty of first degree felony murder with a first degree robbery predicate and second degree intentional murder. By special verdict, the jury found that Erickson was armed with a deadly weapon during the commission of the crime. At sentencing, the court imposed a five-year firearm sentence enhancement based on the deadly weapon finding.
Erickson moved for a new trial, alleging ineffective assistance of counsel, prosecutorial misconduct, irregularities in the proceedings, and errors of law. The motion was denied.
ANALYSIS I. Firearm enhancement
Erickson contends that, consistent with our Supreme Court's recent decision in State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), cert. granted, U.S., 126 S. Ct. 478, 163 L. Ed. 2d 362 (2005), the trial court's imposition of the firearm sentence enhancement violated Erickson's right to trial by jury, as the jury's verdict found only that he possessed a deadly weapon, rather than specifically finding that he possessed a firearm, at the time of the offense. We agree.
The statutory definition of `deadly weapon' in RCW 9.94A.602 is broader than the definition of `firearm' in RCW 9.94A.533.
The Sixth Amendment guarantees a defendant the right to a jury trial, including the right to a jury determination that every element of the crime with which a defendant is charged is proved beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Sixth Amendment prohibits a sentencing court from imposing a penalty exceeding the maximum penalty a defendant could receive if punished according to facts reflected in the jury verdict alone. Blakely, 124 S. Ct. at 2537.
RCW 9.94A.533 requires a sentencing court to impose an additional term of imprisonment depending on whether, at the time of the commission of the crime, the defendant was armed with a deadly weapon or with a firearm, and depending on the class of the underlying offense. A class A felony conviction, such as Erickson's conviction for first degree murder, results in an additional five year sentence if the offender was armed with a firearm or an additional two year sentence if the offender was armed with a deadly weapon. RCW 9.94A.533 (3)(a), (4)(a).
RCW 9.94A.602 defines a `deadly weapon' as `an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagge pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.'
RCW 9.41.010 defines `firearm' as `a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.'
In Recuenco, the defendant was convicted of second degree assault, interfering with domestic violence reporting, and third degree malicious mischief. 154 Wn.2d at 159. Based on testimony that Recuenco had been armed with a gun, the jury returned a special verdict finding that Recuenco was armed with a deadly weapon at the time he committed the assault. The trial court imposed the firearm sentence enhancement.
A sentence based on the `deadly weapon' finding was required to include a one-year enhancement. A sentence based on a `firearm' finding was required to include a three-year enhancement. RCW 9.94A.533(3)(b), (4)(b).
The Supreme Court reversed the trial court, finding that the jury did not explicitly find beyond a reasonable doubt that Recuenco committed assault with a firearm; rather, it found only the use of a deadly weapon. The Court held that, absent an explicit firearm finding by the jury, "the court's imposition of a firearm sentence enhancement violated Recuenco's jury trial right as defined by Apprendi and Blakely — Recuenco's sentence was greater than that allowed solely based on the facts found by the jury." Recuenco, 154 Wn.2d at 162.
The Court noted that past decisions allowing judges to impose a firearm enhancement where a jury found only the presence of a deadly weapon are no longer valid precedent in light of Blakely. Recuenco, 154 Wn.2d at 163 n. 2. Accordingly, the Court remanded the case for resentencing.
The Court further held that such a violation can never be deemed harmless. Recuenco, 154 Wn.2d at 164.
In the instant case, the jury's verdict only authorized the imposition of a two-year deadly weapon sentence enhancement. Thus, the trial court's imposition of a five-year firearm sentence enhancement was erroneous.
We therefore remand for resentencing.
II. "Other suspect" evidence
Erickson next contends that the trial court's exclusion of evidence purportedly connecting other individuals to Kopp's homicide violated his right to compulsory process for obtaining witnesses in his favor, a right guaranteed by the state and federal constitutions. Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Maupin, 128 Wn.2d 918, 913 P.2d 808 (1996); U.S. Const. amend. VI; Wash. Const. art. 1, sec. 22.
Although a defendant has a constitutional right to obtain witnesses and present a defense, a defendant has no right to the admission of irrelevant evidence. State v. Hudlow, 99 Wn.2d 1,15, 659 P.2d 514 (1983). Accordingly, a defendant has no right to introduce evidence that a third party committed the crime for which the defendant is on trial unless a sufficient foundation is established. State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993). A defendant seeking to introduce evidence connecting another person with the crime charged must first establish such "a train of facts or circumstances as tend clearly to point out some one besides the [defendant] as the guilty party." State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932).
Relevant evidence is evidence that tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401.
This articulation of this principle was recently cited with approval by the United States Supreme Court. Holmes v. South Carolina, No. 04-1327, 2006 U.S. LEXIS 3454, at *17 (May 1, 2006).
We review a trial court's decision to exclude "other suspect" evidence for abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856-61, 83 P.3d 970 (2004).
A brief review of applicable case law illustrates the type of facts or circumstances that provide a proper foundation justifying the admission of evidence linking an individual, other than the accused, to the charged offense.
In Maupin, the defendant sought to admit the testimony of an eyewitness who claimed to have seen the victim being carried by the other suspect the day after the victim was kidnapped. 128 Wn.2d 918, 922. The Supreme Court found that the trial court erred by excluding this evidence because the evidence brought into question the State's version of the events of the kidnapping and pointed directly to someone other than the defendant as the guilty party. Accordingly, the evidence furnished a sufficient nexus linking someone other than the defendant to the crime for which the defendant was charged.
In State v. Clark, 78 Wn. App. 471, 479-80, 898 P.2d 854 (1995), the other suspect had motive, opportunity, and the ability to commit the arson charged. Clark also had evidence that the other suspect had previously threatened to set his former wife's house afire and had told her he knew how to commit arson without being detected. Clark, 78 Wn. App. 480. The Court found that the trial court improperly excluded this evidence, because it provided "a trail of evidence sufficiently strong to allow its admission at trial," and reversed the judgment. Clark, 78 Wn. App. at 480. In State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932), the defendants, charged with burglary, sought to introduce evidence that a known burglar, "Madison Jimmy," was in the area on the day that the charged crime occurred. The Court held that the trial court properly excluded this evidence, stating that in "the absence of other circumstances tending in some manner to connect ["Madison Jimmy"] with the commission of the crime," his presence in Seattle at the time of the commission of the crime, did not have "any effect upon the question of the guilt or innocence" of the defendants. Downs, 168 Wash. at 668.
In the instant case, the trial court correctly ruled that Erickson did not make the necessary foundational showing to connect Thornton to Kopp's homicide. No eyewitness linked Thornton to the victim. No witness presented evidence that substantially contravened the State's version of events, as was the case in Maupin. There was no evidence, outside of an invitation to speculate, that Thornton had a motive to kill Kopp, much less a history of threatening to commit similar crimes, as was the case in Clark. The evidence Erickson offered did not establish "a train of facts or circumstances" clearly pointing to Thornton as the guilty party. Downs, 168 Wash. at 667.
Further, Erickson was free to call Webster as a witness, which would have caused the trial court to re-evaluate its ruling on the admissibility of other evidence concerning Thornton. The trial court's ruling evidences that the court held open the possibility that Webster's testimony could provide a sufficient train of facts or circumstances connecting Thornton to Kopp's homicide but, without Webster's testimony, no such nexus existed.
The `John Hancock' letter was obviously inadmissible, both because it was only relevant for the truth of the matters asserted therein, and was, therefore, hearsay, and also because it was impossible to authenticate, as required by ER 901.
Erickson apparently made an understandable tactical decision not to call Webster, given that, while Webster's testimony would have implicated Thornton, it also would have further implicated Erickson.
Absent Webster's testimony, the only potentially relevant, admissible evidence tending to implicate Thornton consisted of Moore's testimony that Thornton was at the house she rented, with a gun, cocaine, and a cell phone (although other witnesses would testify that it was not Kopp's cell phone), and the fact that a cell phone tower near Moore's house was activated at approximately the same time. This evidence fails to create a sufficient "train of facts or circumstances" clearly pointing to Thornton as the guilty party. Downs, 168 Wash. at 667.
Accordingly, we find no error in the trial court's exclusion of Erickson's proposed evidence purporting to implicate Thornton in Kopp's homicide.
III. Prosecution arguments concerning the absence of other suspects
During both opening statement and closing argument, the prosecutor referred to the absence of suspects other than Erickson. Erickson contends that these remarks deprived him of due process of law. We find to the contrary.
To demonstrate improper prosecutorial argument, a defendant must show both the impropriety of the attorney's comments and their prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). To demonstrate prejudice, the defendant must establish a substantial likelihood that the misconduct affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). Attorneys are afforded wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). However, it is improper for a prosecutor to argue that a defendant is untruthful because the defendant failed to offer excluded evidence. State v. Kassahun, 78 Wn. App. 938, 952, 900 P.2d 1109 (1995).
In Kassahun, this court held that it was misconduct for the prosecutor, having prevailed by motion in limine in an effort to preclude Kassahun from discovering objective evidence of a murder victim's gang membership and gang activities, to imply in argument that Kassahun was untruthful because he failed to offer objective evidence to support his belief that his business was being overrun by gangs.
Such improper arguments should be met by objections at trial. Where, as here, there was no objection at trial, any claim of error is deemed waived unless the prosecutor's remarks were so flagrant and ill-intentioned that any resulting prejudice could not have been cured by an admonition to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
We conclude that the prosecutor's remarks were neither flagrant nor ill-intentioned. Further, Erickson has not demonstrated that the remarks prejudiced him in any way that could not have been neutralized by a timely admonition to the jury, had an objection been interposed and such an instruction requested. Even in the absence of the prosecutor's remarks, the jury was free to consider the lack of evidence connecting people other than Erickson to the crime. The remarks at issue neither deprived Erickson of due process of law nor denied him a fair trial.
IV. Detective Holt's testimony concerning the investigation
At trial, over defense objection, Detective Holt testified that she interviewed 13 of Kopp's associates concerning Kopp's activities on the day he was killed, whether he was concerned for his safety, and the location of his car after he met with Erickson. Detective Holt testified that no individual reported having seen Kopp after he met with Erickson, and that she received no information she could follow up on regarding Kopp's whereabouts after he met Erickson.
Erickson argues that Detective Holt's testimony was hearsay and that the admission of the evidence deprived him of his right to confront witnesses against him. We find no error.
A defendant has both a federal and state constitutional right to confront accusers. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); State v. Davis, 154 Wn.2d 291, 111 P.3d 844 (2005). Whether a trial court has violated an accused's confrontation rights is an issue reviewed de novo on appeal. State v. Medina, 112 Wn. App. 40, 48, 48 P.3d 1005 (2002).
In the instant case, the record demonstrates that the trial court meticulously sustained objections to questions that elicited hearsay responses. Further, this court has long held that, in relating historical facts about a case, an officer can report that he or she acted upon "information received," without violating the prohibition against hearsay testimony. State v. Aaron, 57 Wn. App. 277, 281, 787 P.2d 949 (1990). Detective Holt's testimony was of this type.
The trial judge carefully limited questioning about Detective Holt's investigation. The testimony allowed was not hearsay and did not offend Erickson's right to confrontation.
V. Detective Holt's testimony concerning Erickson's behavior in an interview
On direct examination, Detective Holt described Erickson as "manipulative" in the police interview. On cross-examination, she agreed with defense counsel's suggestion that she perceived Erickson's behavior as "deceptive" when he described borrowing a rifle but denied borrowing a pistol. Erickson contends that these statements constituted impermissible opinion testimony as to his credibility. We find that the first comment was not impermissible opinion testimony, while the second comment was invited by Erickson's trial counsel and, thus, can not provide a basis for relief.
Generally, no witness may offer opinion testimony as to the guilt of a defendant, whether by direct statement or inference; such testimony is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Similarly, because issues of credibility are reserved strictly for the trier of fact, testimony regarding the credibility of a key witness may also be improper. City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993). However, testimony that is not a direct comment on the veracity of a witness is not improper if such testimony is otherwise helpful to the jury and is based on inferences from the evidence. Heatley, 70 Wn. App. at 577. The trial court exercises broad discretion in determining the admissibility of such ultimate issue testimony. Heatley, 70 Wn. App. at 579.
Detective Holt's statement on direct examination was not improper opinion testimony. Her testimony that Erickson appeared to be "manipulative" in the investigative interview was not a direct comment on Erickson's veracity. Instead, it referred to Detective Holt's perception that Erickson was trying to gain information about the investigation. This testimony was properly based on her observations of Erickson's behavior during the interview.
Detective Holt's testimony on cross-examination, if improper, was invited error. The invited error doctrine prohibits a party from setting up an error at trial and then complaining of it on appeal. State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995). See, e.g., State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979). Defense counsel elicited the testimony now objected to in order to suggest a different interpretation of Erickson's actions. This was a legitimate trial tactic. Any error was invited and, thus, can not afford a basis for relief on appeal.
VI. Testimony describing Erickson's drug use and financial needs and evidence of State's witness's own drug use
Erickson asserts that the prosecutor's questions to Lipps, Linkous, and Harjehausen elicited irrelevant and unfairly prejudicial testimony. We find that the trial court exercised reasonable discretion in its rulings and that Erickson suffered no undue prejudice from the testimony at issue.
A trial court's ruling on the admissibility of evidence is reviewed for manifest abuse of discretion. Russell, 125 Wn.2d at 78. A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Lipps's testimony concerning his experience of cocaine addiction, Linkous's testimony that he loaned Erickson money, and Harjehausen's testimony about Erickson's demeanor do not afford a basis for relief on appeal. Even assuming that the testimony at issue was only marginally relevant, the testimony added scant prejudice when considered in the context of other admitted evidence and argument from both the prosecutor and Erickson's counsel. There was a close connection between Erickson's cocaine use and financial problems and the alleged motive for the charged homicide; it was part of the res gestae of the case. Additionally, Erickson's trial counsel's theory of the case relied upon Erickson's drug use, finances, and unusual behavior to raise doubts about the State's version of events.
In opening statement, Erickson's counsel stated that Erickson `began using crack cocaine initially as a kind of a pain medication. He subsequently became addicted.' `We don't dispute he was using crack cocaine heavily during this time period that we're talking about.' `[I]t was not uncommon for Erickson to leave the motel at various times. [Q]uite frankly on some of these trips he went out to buy drugs.' `Erickson purchases a quarter ounce of cocaine from Mr. Kopp for $150. He samples the drugs.'
In opening statement, Erickson's counsel stated that Erickson's `house went into foreclosure, [Erickson is] using drugs, he's not living at the house anymore.' `So what [Jackson] wound up doing was giving [Erickson] $1500 in cash [for half the rent] and paying for the rest of it with $1500 or so worth of crack cocaine, which Mr. Erickson then on his own had tried to sell to get his money.' `Erickson was in a position of having to sell some of the cocaine that Jackson was paying him with and he had a scary encounter with a group of individuals, that he thought he was going to be robbed and he needed a gun for protection.'
In closing argument, Erickson's counsel stated, `Well, you know he had this bench warrant out. I would suggest to you that for the most part that explains Erickson's behavior in trying to avoid the police.' `Vickie Koch testified that [she] had known Erickson for a number of years and was familiar with his moods and that she said that he does not act his chronological age. He acts kind of childish and childlike and that he cries easily.'
Accordingly, the admission of the testimony at issue does not afford a basis for relief on appeal.
VII. Witness's disclosure of domestic violence warrant
After Larson revealed that Erickson's arrest warrant was for "D.V.," Erickson moved for a mistrial, which the trial court denied. Erickson now claims that this denial was erroneous. We affirm the trial court's ruling.
An appellate court reviews a trial court's decision to grant or deny a mistrial for abuse of discretion. State v. Escalona, 49 Wn. App. 251, 254-55, 742 P.2d 190 (1987). 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. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). In considering whether a trial irregularity warrants a mistrial, the appropriate inquiry is whether the testimony, when viewed against the backdrop of all the evidence, so tainted the trial that the defendant did not receive a fair trial. State v. Weber, 99 Wn.2d 158, 164, 659 P.2d 1102 (1983). The trial court is better situated than the appellate court to assess the prejudice caused by a given statement. State v. Thompson, 90 Wn. App. 41, 45, 950 P.2d 977 (1998).
In the instant case, the trial court did not abuse its discretion in denying Erickson's motion for a mistrial. First, the remark at issue was not a serious irregularity. The witness did not disclose any details of the crime underlying the warrant. Second, the statement was partially cumulative of other evidence. Erickson stipulated to the admissibility of the existence of the warrant as a matter of trial tactics and used his knowledge of the warrant to explain his "paranoid" behavior in the presence of police. Third, the irregularity could have been cured by an instruction to the jury, had one been requested. The law presumes that a jury follows a court's instruction to disregard testimony. Escalona, 49 Wn. App. at 255.
Our ultimate consideration is whether Larson's improper statement, viewed in light of all the evidence, was so prejudicial that Erickson was denied his right to a fair trial. We conclude that it was not. The trial court did not abuse its discretion in denying Erickson's motion for a mistrial based on Larson's statement.
VIII. Prosecuting attorney's alleged misconduct
Erickson next claims that the prosecutor engaged in misconduct during opening statement and closing argument by mentioning Erickson's drug use and arguing that Erickson had been untruthful. In his pro se Statement of Additional Grounds for Review, Erickson also alleges that the prosecutor engaged in misconduct by misstating that Erickson met Kopp at the mall rather than at the fast food restaurant.
To prevail on grounds of prosecutorial misconduct, a defendant must show improper conduct resulting in prejudice. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). Prejudice exists if there is a substantial likelihood that the prosecutorial misconduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). We examine allegedly improper statements 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. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Appeals to the jury's passion and prejudice are improper. State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984).
A prosecutor's statement of personal opinion as to a defendant's credibility in closing argument is a violation of the Rules of Processional Conduct. RPC 3.4(f). However, even if the comments are found to be improper, reversal is required only if there is a substantial likelihood the comments affected the jury's decision. State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984).
Generally, a defendant's failure to object to improper argument waives such a claim unless the statements are so flagrant and ill-intentioned that they cause an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Brown, 132 Wn.2d at 561; see also State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Reversal is not appropriate when the alleged prejudice might have been cured through an instruction following an objection that the defendant failed to lodge. Brown, 132 Wn.2d at 561.
The arguments concerning Erickson's drug use were based on facts in the record and were not so flagrant and ill-intentioned as to be beyond the ability of the trial court to cure. Any prejudice was mitigated by the fact that Erickson's defense was largely based on the premise that Kopp and Erickson were members of a community of cocaine users, any one of whom might have been motivated to murder Kopp out of a desire to steal money or cocaine, or to exact revenge for unspecified transgressions of the rules of the cocaine dealing trade.
In closing argument the prosecutor asked, "Why did Dan Erickson make up the story about what happened during that drug deal? Why did he lie about what happened?" and suggested, "there is no black Impala. He made it up and he lied to cover what he's doing." Erickson interposed no objections following these remarks and requested no curative instructions. Even if we assume the impropriety of the two remarks, no relief is warranted because Erickson has failed to establish a substantial likelihood that these remarks affected the jury's decision or were so flagrant and ill-intentioned as to cause prejudice that could not have been neutralized by a curative instruction.
The prosecutor's statement that Erickson had arranged to meet Kopp at the mall was a minor misstatement and was never repeated. The jury was instructed that an attorney's remarks are not evidence. This remark did not unduly prejudice Erickson.
We therefore conclude that the prosecutor's remarks at issue are not of a type warranting relief on appeal.
IX. Cumulative error
Erickson claims that the accumulation of prejudicial and irrelevant evidence violated his right to a fair trial. We disagree.
Under the cumulative error doctrine, even where no single error merits reversal, an appellate court may find that the errors combined together denied the defendant a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). The doctrine mandates reversal where the cumulative effect of nonreversible errors materially affected the outcome of the trial. State v. Alexander, 64 Wn. App. 147, 150-51, 822 P.2d 1250 (1992).
Based on the preceding analysis of Erickson's asserted errors, we conclude that Erickson received a fair trial. Erickson's claim of cumulative error fails.
X. Effective assistance of counsel
Erickson next contends that he was deprived of effective assistance of counsel because his trial counsel (1) failed to object to arguments about Erickson's drug use, (2) failed to object to several of the prosecutor's questions to Detective Holt regarding Erickson's interrogation, (3) failed to object to the prosecutor's erroneous statement that Erickson had arranged to meet Kopp at the mall rather than at the fast food restaurant, (4) failed to offer ballistics testimony; and (5) failed to impeach Jackson with evidence of his 1995 conviction for attempted possession of stolen property, his use of aliases, or his prior provision of false information to law enforcement officials.
A defendant has a constitutional right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice is established and reversal is required if there is a reasonable probability that the result of the trial would have been different, but for counsel's inadequate performance. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Deficient performance is not shown by matters that go to trial strategy or tactics. Hendrickson, 129 Wn.2d at 77-78. Erickson complains that his trial counsel failed to object to repeated remarks about Erickson's drug use. However, decisions when or whether to object are examples of trial tactics. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Only in egregious circumstances will a failure to object constitute incompetence of counsel. Madison, 53 Wn. App. at 763. Erickson's trial counsel's actions in this case did not approach such a nadir.
Erickson claims that his trial counsel should have objected to several of the prosecutor's questions to Detective Holt regarding Erickson's interrogation. Again, decisions when or whether to object are examples of trial tactics. Madison, 53 Wn. App. at 763. Defense counsel raised objections to many of the questions posed to Detective Holt and thoroughly and skillfully cross-examined her. Erickson's trial counsel's actions in this regard did not approach incompetence.
Erickson complains that his trial counsel did not offer ballistics testimony. Whether to call a witness is a matter of trial tactics. State v. Krause, 82 Wn. App. 688, 697-98, 919 P.2d 123 (1996). We find that Erickson's trial counsel made a reasonable tactical decision to cross-examine the State's expert witnesses in lieu of calling an additional expert.
Erickson complains that his trial counsel failed to impeach Jackson with evidence of his 1995 conviction for attempted possession of stolen property, his use of aliases, and his prior provision of false information to law enforcement officials. Decisions concerning methods of impeaching witnesses are trial tactics. Hendrickson, 129 Wn.2d at 77-78. We find that Erickson's trial counsel made a reasonable tactical decision to cause Jackson to demonstrate evasiveness on the witness stand, rather than emphasizing or relying on evidence of an aged conviction and other collateral matters. The cross-examination which took place was done skillfully and effectively.
Despite Erickson's assertions to the contrary, we conclude that Erickson received effective assistance of counsel.
Finally, in his Statement of Additional Grounds for Review, Erickson assigns error to the fact that, on the first day of trial, a sidebar conversation went unreported. Erickson's argument on this issue is without merit.
Although a defendant is constitutionally entitled to a record of sufficient completeness to permit effective appellate review of the defendant's claims, State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003), sufficient completeness does not necessarily equate with a complete verbatim transcript. Tilton, 149 Wn.2d at 781. The record presented for our review is sufficient to address Erickson's assignments of error.
We affirm the convictions, but remand for resentencing. GROSSE and BECKER, JJ., Concur.