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finding defendant's statement "I mean, I guess I'll just have to talk to a lawyer about it ..." was not an unequivocal request for counsel
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No. 41103–2–II.
2013-02-20
STATE of Washington, Respondent, v. Jose Miguel GASTEAZORO–PANIAGUA, Appellant.
Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, B. Renee Alsept, Attorney at Law, Vancouver, WA, for Appellant. Abigail E. Bartlett Clark County Prosecuting Attorney's Office Vancouver, WA, for Respondent.
Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, B. Renee Alsept, Attorney at Law, Vancouver, WA, for Appellant. Abigail E. Bartlett Clark County Prosecuting Attorney's Office Vancouver, WA, for Respondent.
PUBLISHED IN PART OPINION
QUINN–BRINTNALL, J.
¶ 1 A jury found Jose Gasteazoro–Paniagua guilty of first degree attempted murder with a firearm enhancement and first degree unlawful possession of a firearm. Gasteazoro–Paniagua appeals, alleging that (1) his statements were improperly admitted because they were made after he requested counsel, (2) the trial court violated his right to be present at trial, (3) the trial court erred by refusing to give a novel jury instruction regarding the alleged jailhouse informant's testimony, (4) the trial court erred by allowing the State to introduce extrinsic evidence of the victim's prior inconsistent statements, (5) the trial court erred by denying his motion for a mistrial, (6) the trial court erred by admitting officer testimony about hearsay statements witnesses made to the police, (7) the State committed misconduct during closing arguments, and (8) the jury instructions regarding the firearm enhancement violated the unanimity requirement in State v. Bashaw, 169 Wash.2d 133, 234 P.3d 195 (2010), overruled by State v. Nunez, 174 Wash.2d 707, 285 P.3d 21, (2012), and State v. Goldberg, 149 Wash.2d 888, 72 P.3d 1083 (2003), overruled by Nunez, 174 Wash.2d 707, 285 P.3d 21. Discerning no reversible error, we affirm.
¶ 2 In the published portion of this opinion we address Gasteazoro–Paniagua's challenge to the admission of statements he made during the police interview. The remaining issues are fact specific and are addressed in the unpublished portion of our opinion.
FACTS
¶ 3 On December 30, 2009, at approximately 10:30 pm, a man dressed in a dark-colored hooded sweatshirt entered the Buy Low Market in Clark County, Washington, and shot Jose Muro five times. Muro was stocking the Buy Low's walk-in refrigerator when he was shot. He survived. The police did not recover the gun.
¶ 4 Muro and Gasteazoro–Paniagua were best friends but had a falling out when Gasteazoro–Paniagua had an affair with Muro's brother's wife, Nicole Sanchez. Muro called Gasteazoro–Paniagua about an hour before he was shot in response to a text message from Gasteazoro–Paniagua. Although they were no longer friends, Gasteazoro–Paniagua asked Muro if he wanted to meet for a drink; Muro declined, telling Gasteazoro–Paniagua that he was at work.
¶ 5 On January 7, Yakima Police Department officers arrested Gasteazoro–Paniagua in Yakima. Detectives Rick Buckner and Lindsay Schultz of the Clark County Sheriff's Department interviewed Gasteazoro–Paniagua just after midnight at the Yakima Police Department. At Gasteazoro–Paniagua's arraignment on June 10, the State filed a second amended information charging Gasteazoro–Paniagua with attempted first degree murder with a firearm enhancement and a first degree unlawful possession of a firearm charge. RCW 9.41.040(1)(a); RCW 9.94A.533(3), .825. Gasteazoro–Paniagua pleaded not guilty to all charges.
¶ 6 Gasteazoro–Paniagua moved to suppress statements he made to police during the interview with the detectives in Yakima. Following a CrR 3.5 hearing, the trial court found that Gasteazoro–Paniagua had waived his rights to counsel and to silence and concluded that his statements were voluntary and admissible. A jury trial began on June 14, 2010. Gasteazoro–Paniagua stipulated to a previous conviction for a serious offense. On June 17, Gasteazoro–Paniagua moved for mistrial, arguing that one of the investigating officers identified him in the store surveillance video in violation of the court's ruling in limine to exclude police opinion testimony as to his guilt. The trial court denied the motion.
¶ 7 On June 23, Gasteazoro–Paniagua moved to exclude the testimony of T.J., an alleged jailhouse informant. The trial court denied the motion. Based on his characterization of T.J. as a jailhouse informant, Gasteazoro–Paniagua proposed a jury instruction that specifically instructed the jury to treat T.J.'s testimony with caution. The trial court declined to give Gasteazoro–Paniagua's proposed instruction. On June 29, a jury found Gasteazoro–Paniagua guilty as charged. On July 8, Gasteazoro–Paniagua filed a CrR 7.6 motion for new trial, asserting that the trial court erred by denying his motion for mistrial and alleging several instances of prosecutorial misconduct. The trial court denied the motion and sentenced Gasteazoro–Paniagua to 429.75 months confinement for the first degree attempted murder conviction, and 89 months for the first degree unlawful possession of a firearm conviction, to be served concurrently.
We refer to the witness by his initials to protect his privacy.
¶ 8 Gasteazoro–Paniagua timely appeals.
ANALYSIS
Request for an Attorney During Police Interview
¶ 9 Gasteazoro–Paniagua alleges that the trial court erred by denying his CrR 3.5 motion to suppress the statements that he made to the police during the interview in Yakima. Gasteazoro–Paniagua argues that during the interview, he made an unequivocal request for counsel and the detectives were required to immediately stop questioning him. Because the officers continued to question him, Gasteazoro–Paniagua contends that his Fifth Amendment rights were violated and the statements were inadmissible. But Gasteazoro–Paniagua's statement was not an unequivocal request for counsel and, as a result, the trial court did not err by denying Gasteazoro–Paniagua's CrR 3.5 motion to suppress the statements he made to the police.
After oral argument we ordered the State to supplement the record with the full transcript of the police interview with Gasteazoro–Paniagua. RAP 9.11. After review of the transcript, we have determined that the full transcript is not materially different from the evidence admitted at trial. Therefore, we limit our review to the trial record originally designated for review.
¶ 10 We review the trial court's findings of fact from a CrR 3.5 hearing to determine if they are supported by substantial evidence. State v. Broadaway, 133 Wash.2d 118, 131, 942 P.2d 363 (1997). We review de novo whether the trial court's conclusions of law are properly derived from its findings of fact. State v. Pierce, 169 Wash.App. 533, 544, 280 P.3d 1158 (citing State v. Grogan, 147 Wash.App. 511, 516, 195 P.3d 1017 (2008), remanded,168 Wash.2d 1039, 234 P.3d 169 (2010)), review denied, No. 87766–1, 175 Wash.2d 1025, 291 P.3d 253 (Wash. Dec. 4, 2012). Unchallenged findings of fact are verities on appeal. Pierce, 169 Wash.App. at 544, 280 P.3d 1158 (citing State v. Lorenz, 152 Wash.2d 22, 30, 93 P.3d 133 (2004)). After making a knowing, voluntary, intelligent waiver of Miranda rights, a defendant must unequivocally request an attorney in order to invoke his right to counsel. State v. Radcliffe, 164 Wash.2d 900, 906–07, 194 P.3d 250 (2008); see also State v. Nysta, 168 Wash.App. 30, 40–41, 275 P.3d 1162 (2012); Pierce, 169 Wash.App. at 544, 280 P.3d 1158. To be unequivocal, the defendant “ ‘must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’ ” Nysta, 168 Wash.App. at 41, 275 P.3d 1162 (quoting Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
¶ 11 It is undisputed that Gasteazoro–Paniagua made a knowing, voluntary, and intelligent waiver of his rights at the beginning of the interview. But Gasteazoro–Paniagua argues that during the interview, he made an unequivocal request for counsel which required the detectives to immediately stop all questioning until an attorney was provided. During the interview, Buckner stated, “[W]e don't end up here with you in custody unless we've got a probable cause.” 8 RP at 88. Gasteazoro–Paniagua responded, “I mean I guess I'll just have to talk to a lawyer about it and, you know, I'll mention that you guys are down here with a story.” 8 RP at 88–89.
¶ 12 Our Supreme Court has held that the statement “maybe [I] should contact an attorney” is clearly an equivocal statement, not an unequivocal request. Radcliffe, 164 Wash.2d at 907–08, 194 P.3d 250 (citing Davis, 512 U.S. at 455, 114 S.Ct. 2350). In contrast, statements such as “I gotta talk to my lawyer” and “I'm gonna need a lawyer because it wasn't me” are unequivocal requests for an attorney. Nysta, 168 Wash.App. at 42, 275 P.3d 1162;Pierce, 169 Wash.App. at 544–45, 280 P.3d 1158.
¶ 13 Unlike the statements in Nysta and Pierce, Gasteazoro–Paniagua's statement was not in the present tense and did not refer to his lawyer or any lawyer in particular. Furthermore, “guess” indicates doubt. Webster's Third New International Dictionary 1008 (2002) (Guess means to form a judgment without knowledge, conjecture, estimate, surmise.). An indication of doubt cannot be considered an unequivocal request. Id. 2494 (Unequivocal means leaving no doubt, expressing only one meaning; expressing finality.); see also Taylor v. Indiana, 689 N.E.2d 699, 703 (Ind.1997).
¶ 14 Other jurisdictions have determined that using the phrase “I guess” is equivocal and does not invoke a defendant's right to counsel. United States v. Clark, 746 F.Supp.2d 176, 185 (D.Me., 2010) (holding that because the statement “I guess” conveyed uncertainty, the defendant did not unambiguously invoke his right to counsel); Taylor, 689 N.E.2d at 703 (defendant's statement, “ ‘I guess I really want a lawyer, but, I mean, I've never done this before so I don't know’ ” was “an expression of doubt, not a request”). “I guess” is also considered to be equivocal in other circumstances. See, e.g., California v. Valdez, 55 Cal.4th 82, 136, 144 Cal.Rptr.3d 865, 281 P.3d 924 (2012) (“Witness No. 13 answered the prosecution's questions, not with a simple ‘yes' or a ‘no,’ but with a decidedly equivocal, ‘I believe so’ or ‘I guess.’ ”); McDaniel v. Kentucky, 341 S.W.3d 89, 98 (Ky.2011) (Cunningham, J., dissenting) (“The majority is correct that S.W. gave equivocal answers such as, ‘I guess,’ and ‘It's hard to say.’ ”); United States v. Nelson, 450 F.3d 1201, 1212 (10th Cir.) (“From an objective standpoint, ‘ I guess I'm ready to go to jail then ’ is at best an ambiguous or equivocal statement that might be construed as an indication of a desire to discontinue a police interview.”), cert. denied,549 U.S. 937, 127 S.Ct. 326, 166 L.Ed.2d 244 (2006); Smith v. Texas, 907 S.W.2d 522, 530 (Tex.Crim.App.1995) (“the veniremember never gave an answer less equivocal than ‘I think ...’ or ‘I guess.’ ”).
¶ 15 Gasteazoro–Paniagua has not cited any persuasive legal authority supporting his position that his statement,
I mean, I guess I'll just have to talk to a lawyer about it, and you know I'll mention you guys are down here with a story and—
was unequivocal. 8 Report of Proceedings (RP) at 89. See Br. of Appellant at 22 (citing Abela v. Martin, 380 F.3d 915, 926 (6th Cir., 2004); United States v. Perkins, 608 F.2d 1064, 1066 (5th Cir.1979)). In Abela, the defendant stated, “ ‘[M]aybe I should talk to an attorney by the name of William Evans.’ ” 380 F.3d at 926. The court rejected the contention that the use of “maybe” was dispositive because Abela mentioned a specific attorney by name and handed the officer the attorney's business card. Abela, 380 F.3d at 926. A reasonable officer, in the circumstances, would have interpreted Abela's statement, combined with his actions, as a request to speak to an attorney. Abela, 380 F.3d at 926. Here, Gasteazoro–Paniagua did not mention an attorney by name. He also took no action such as providing an attorney's contact information to the detectives that would lead a reasonable officer to believe that he was requesting an attorney.
¶ 16 In Perkins, the defendant stated, “I think I want to talk to a lawyer.” 608 F.2d at 1066. But the parties did not dispute whether this was an unequivocal request for counsel. Perkins, 608 F.2d at 1067. The court did not give any indication whether the statement would have actually been determined to be unequivocal if the nature of the statement had been in question. See Perkins, 608 F.2d at 1067. Therefore, Perkins is not persuasive for determining the nature of Gasteazoro–Paniagua's statement.
¶ 17 Furthermore, Gasteazoro–Paniagua's assertion that “[i]t is clear that Gasteazoro–Paniagua's statement was deferential to the authority of the police” lacks merit. Br. of Appellant at 22–23. Gasteazoro–Paniagua's assertion has no factual basis in the record. Based on the content of the interview and the detectives' testimony about Gasteazoro–Paniagua's demeanor during the interview, it does not appear that Gasteazoro–Paniagua exhibited any deference to police authority. Throughout the interview Gasteazoro–Paniagua was evasive and unresponsive. The detectives who interviewed Gasteazoro–Paniagua described him as arrogant and cocky. On these facts, it is improbable that his statement was made out of deference to police authority. In addition, Gasteazoro–Paniagua does not cite to any legal authority that supports the argument that an otherwise equivocal request should be considered unequivocal if there is an indication that the defendant was being deferential to general police authority.
Obviously, this reasoning would not apply if the police tactics used in the interview were coercive. Statements are inadmissible if the police tactics prevent a defendant from making a rational, independent decision about giving a statement. State v. Unga, 165 Wash.2d 95, 102, 196 P.3d 645 (2008). During the interview, almost immediately after Gasteazoro–Paniagua made his comment about a lawyer, Detective Schultz made the following statement:
Understand (indiscernible) when we leave here, understand this really clearly, when we leave and go back, we're done with the conversations with you. Okay, there's not going to be a second chance to say, Okay. Let me explain something, let me get something out, let me tell you my side, so on and so on.
8 RP at 102.
Under some circumstances, the threat that the suspect would not get another chance to tell his side of the story may be coercive and result in the suspect making an irrational judgment about whether to make statements to the police or whether to assert his right to an attorney. But the facts of this case do not support a conclusion that the detectives' statements had a coercive effect on Gasteazoro–Paniagua.
Throughout the interrogation, Gasteazoro–Paniagua continued to deny any involvement in or knowledge about the shooting. Furthermore, at trial, Gasteazoro–Paniagua testified, “I wasn't trying to really cooperate with the police,” and, “I didn't make nothin' up, I just didn't really, you know, yeah, I didn't tell them the truth.” 17–A RP at 1863–64. Because the detectives' statements had no effect on Gasteazoro–Paniagua's decision to make statements to them, and Gasteazoro–Paniagua did not make any incriminating statements, the detectives' statements were not coercive in this case.
¶ 18 Considering Gasteazoro–Paniagua's attitude during the interview and his general refusal to cooperate by being unresponsive, a reasonable officer would conclude that if Gasteazoro–Paniagua wanted to speak to an attorney, he would tell them outright he would not answer anymore questions without an attorney. Furthermore, neither officer testified that they perceived Gasteazoro–Paniagua's statement to be a request for counsel; in fact, the officer's specifically explained why they did not perceive Gasteazoro–Paniagua's statement to be a request for counsel. Therefore, substantial evidence supports the trial court's finding that Gasteazoro–Paniagua's statement was not an unequivocal request for an attorney. Because Gasteazoro–Paniagua's statement regarding a lawyer was not an unequivocal request for an attorney, the trial court did not err by admitting the statement. Radcliffe, 164 Wash.2d at 908, 194 P.3d 250.
¶ 19 Although we hold that Gasteazoro–Paniagua's statement was not an unequivocal request for counsel, we take the opportunity to emphasize that “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.” Davis, 512 U.S. at 461, 114 S.Ct. 2350.
¶ 20 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
******UNPUBLISHED TEXT FOLLOWS******
Right to be Present
¶ 21 Gasteazoro–Paniagua alleges that the trial court violated his due process right to be present at trial because of several conversations that occurred between the attorneys and the trial court while Gasteazoro–Paniagua was out of the courtroom. In his opening brief, Gasteazoro–Paniagua cites to four instances during which he alleges that the trial court violated his right to be present. At oral argument, Gasteazoro–Paniagua cited to 10 different instances, covering 81 pages of the record, where Gasteazoro–Paniagua was absent during discussions between the attorneys and the trial court. After an independent review of the record, we have determined that Gasteazoro–Paniagua was absent from court on 10 different occasions, covering 92 pages of the record: June 15, 2010; twice on June 17, 2010; June 18, 2010; June 21, 2010; June 22, 2010; twice on June 23, 2010; June 24, 2010; and June 28, 2010. Although it is always preferable for the defendant to be present during any discussion related to his or her case, Gasteazoro–Paniagua's absence on the above occasions did not create reversible error.
¶ 22 We review whether a defendant's constitutional right to be present has been violated de novo. State v. Irby, 170 Wash.2d 874, 880, 246 P.3d 796 (2011). “A criminal defendant has a constitutional right under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to be present during all ‘critical stages' of the criminal proceedings.” State v. Berrysmith, 87 Wash.App. 268, 273, 944 P.2d 397 (1997) (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985)), review denied, 134 Wash.2d 1008, 954 P.2d 277 (1998). “The Due Process Clause is implicated in situations where the defendant is not actually confronting witnesses or evidence against him or her.” Berrysmith, 87 Wash.App. at 273, 944 P.2d 397 (citing Gagnon, 470 U.S. at 526, 105 S.Ct. 1482). The defendant's due process right to be present applies “at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ ” In re Pers. Restraint of Benn, 134 Wash.2d 868, 920, 952 P.2d 116 (1998) (quoting Gagnon, 470 U.S. at 526, 105 S.Ct. 1482). But “ ‘[d]ue process does not require the defendant's presence ‘when presence would be useless, or the benefit but a shadow.’ ” Berrysmith, 87 Wash.App. at 273, 944 P.2d 397 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106–07, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)).
¶ 23 The due process right to be present during trial is not absolute. Irby, 170 Wash.2d at 881, 246 P.3d 796;see also State v. Chapple, 145 Wash.2d 310, 317–18, 36 P.3d 1025 (2001) (citing Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)). A defendant does not have the right to be present at “ ‘in-chambers or bench conferences between the court and counsel on legal matters,’ ” including discussions on proposed jury instructions or during a hearing on a motion for continuance. Irby, 170 Wash.2d at 881, 246 P.3d 796 (quoting In re Pers. Retraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835 (1994)). A defendant may also voluntarily and knowingly waive his right to be present. Chapple, 145 Wash.2d at 317, 36 P.3d 1025 (citing Allen, 397 U.S. at 343, 90 S.Ct. 1057);State v. Thomson, 123 Wash.2d 877, 880, 872 P.2d 1097 (1994) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).
¶ 24 On June 17, June 21, and June 22, Gasteazoro–Paniagua explicitly waived his right to be present for scheduling discussions. Here, Gasteazoro–Paniagua asserts that the discussions that occurred during his absence exceeded the scope of his waiver and, as a result, the trial court violated his right to be present. But the discussions held during each of these instances were within the scope of Gasteazoro–Paniagua's explicit waiver of his right to be present; therefore, Gasteazoro–Paniagua's right to be present was not violated.
¶ 25 Gasteazoro–Paniagua mischaracterizes the majority of the discussion had on the afternoon of June 17 as substantive. He asserts that there was a discussion about the substance of the upcoming witnesses' testimony, however any discussion of the testimony was extremely brief and only for the purpose of ascertaining how much time would be required for each witness. Determining how long each witness will be testifying is critical to accurately schedule the witnesses for trial. The additional discussion about the State's future witnesses is also related to mapping out the schedule for the rest of the trial; determining how many witnesses the State has left to call will determine how much longer the State's case will take. The discussion regarding recalling the victim was related to when the court expected briefing and argument on whether the State would be able to introduce ER 613 evidence, not substantive issues regarding the witness or the testimony. Finally, the discussion regarding the deoxyribonucleic acid (DNA) evidence was not substantive; instead, the discussion was limited to the discussion of the logistics of the defense obtaining the materials their expert needed from the DNA lab. Because none of the discussions that occurred during Gasteazoro–Paniagua's absence on the afternoon of June 17 exceeded the scope of the defendant's waiver, the trial court did not violate Gasteazoro–Paniagua's right to be present.
ER 613(b) regarding extrinsic evidence of a witness's prior inconsistent statement provides,
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
¶ 26 Gasteazoro–Paniagua argues that the discussions on the afternoon of June 21 exceeded the scope of his waiver because the discussions were about stipulations, jury instructions, and the ER 613 issue. However, the discussions regarding these issues were limited to when the court expected the attorneys to be prepared with briefing and the proposed stipulations and instructions. The discussion was not about the substance of the motions or the issues but rather about how they fit into the schedule for the upcoming day. The trial court's comments regarding the transport of the defense witness from prison was also related to scheduling because to determine when the defense would be able to call the witness, the trial court had to enter the appropriate orders and arrange for transport. The trial court and the defense attorney also briefly discussed when the defense's proposed limiting instruction would be read to the jury. The trial court was clear that it had not yet made a decision regarding the admissibility of the testimony which would require the limiting instruction, and that when and how the limiting instruction would be read was premature and would have to be addressed after the trial court made a ruling on the admissibility of the evidence. The trial court did not engage in any substantive discussions that exceeded the scope of the defendant's waiver, therefore the discussions on the afternoon of June 21 did not violate the defendant's right to be present.
¶ 27 Finally, Gasteazoro–Paniagua argues that the discussion that occurred on the afternoon of June 22 clearly exceeded the scope of his waiver because the trial court made a determination about Gasteazoro–Paniagua's potential motion to dismiss for failure to make a prima facie case. However, while the trial court's comment was inappropriate and ill-advised, in the context of the entire conversation, the trial court's comment did not violate the defendant's right to be present. Because of a defense witness's availability, the defense was discussing whether or not it would be appropriate to call a defense witness out of order, during the State's case in chief, because of the witness's availability. The trial court stated that calling the witness out of order should not be problematic because “any motions to dismiss would probably not be real fruitful at the end of the State's case based on sufficiency of the evidence.” 14–B RP at 1489. The trial court's comment was made in the context of determining the scheduling of witnesses, not in the context of making a substantive decision about whether to dismiss for the State's failure to present a prima facie case. The remainder of the conversation was directly related to scheduling witnesses and, therefore, did not exceed the scope of the defendant's waiver.
¶ 28 Because all of the discussions that took place On the afternoon of June 17, June 21, and June 22 were within the scope of Gasteazoro–Paniagua's waiver of his right to be present, we hold that these challenged incidents did not violate the defendant's due process right to be present. Accordingly, Gasteazoro–Paniagua's absences did not create reversible error.
¶ 29 Our review of the record identified an additional seven occasions during which Gasteazoro–Paniagua was absent from the proceedings. But the record is insufficient for us to review Gasteazoro–Paniagua's allegations that they were critical stages of his trial. Our Supreme Court has rejected the contention that a violation of the right to be present is a structural error requiring reversal. In re Benn, 134 Wash.2d at 921, 952 P.2d 116. Therefore, the proceeding from which the defendant was absent must have been a critical stage before the defendant's absence is reversible error. See Irby, 170 Wash.2d at 886, 246 P.3d 796. To be a critical stage, the defendant's presence must have “ ‘a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ ” In re Benn, 134 Wash.2d at 920, 952 P.2d 116 (quoting Gagnon, 470 U.S. at 526, 105 S.Ct. 1482).
¶ 30 Gasteazoro–Paniagua argues that every time he was absent from the courtroom was a critical stage because had he been present, he would have had the opportunity to aid in his defense by making comments to defense counsel. But Gasteazoro–Paniagua offers nothing more than mere speculation and generalizations about how his presence would have contributed to his defense. Moreover, the record before us is devoid of any facts that would establish that Gasteazoro–Paniagua's presence would have had a “reasonably substantial” relation to his opportunity to defend himself. In re Benn, 134 Wash.2d at 920, 952 P.2d 116. We do not review claims that rely on facts outside the record on direct appeal. State v. McFarland, 127 Wash.2d 322, 338, 899 P.2d 1251 (1995) (A personal restraint petition is the appropriate vehicle for bringing matters outside the record before the court.). Because the record is insufficient to review Gasteazoro–Paniagua's claims, the remainder of Gasteazoro–Paniagua's absences from court do not create reversible error.
Jury Instruction Regarding T.J.'s Testimony
¶ 31 Gasteazoro–Paniagua argues that the trial court erred by refusing to give his proposed instruction urging the jury to treat T.J.'s testimony with caution. Gasteazoro–Paniagua characterizes T.J. as a jailhouse informant and baldly asserts that a jailhouse informant's testimony is “less reliable” than accomplice testimony. Gasteazoro–Paniagua urges us to approve a novel jury instruction, modeled after the instruction for accomplice testimony, specifically related to jailhouse informant's testimony. We decline to accept Gasteazoro–Paniagua's invitation to craft a novel jury instruction related to a jailhouse informant's testimony and hold that the trial court did not err by refusing to give Gasteazoro–Paniagua's proposed instruction.
Gasteazoro–Paniagua's presumptive characterization is irrelevant to our decision that, as a matter of law, a separate jury instruction was not required. However, we note that we do not endorse Gasteazoro–Paniagua's characterization of T.J. as a jailhouse informant because the facts distinguish T.J. from witnesses generally considered jailhouse informants. Unlike traditional jailhouse informants, T.J. and Gasteazoro–Paniagua had a preexisting, long-standing relationship that began outside of their time in jail. Furthermore, it appears that T.J.'s favorable deal with the State was based primarily on T.J.'s decision to testify against the co-defendants in his own case rather than on his decision to testify against Gasteazoro–Paniagua.
The Washington Pattern Jury Instruction Committee has explicitly approved an instruction related to accomplice testimony but has not drafted or approved a similar instruction related to jailhouse informant testimony. Washington's pattern jury instructions have the benefit of being drafted by “a committee that includes judges, law professors, and practicing attorneys.” See State v. Bennett, 161 Wash.2d 303, 307, 165 P.3d 1241 (2007). And even when an instruction is approved by the Washington Pattern Jury Instruction Committee, it does not necessarily mean that the instruction will be approved by our Supreme Court. Bennett, 161 Wash.2d at 307, 165 P.3d 1241. The same is true when an appellate court crafts or approves an instruction that has not been approved by the Washington Pattern Jury Instruction Committee. Bennett, 161 Wash.2d at 317–18, 165 P.3d 1241 (disapproving of the State v. Castle, 86 Wash.App. 48, 935 P.2d 656,review denied, 133 Wash.2d 1014, 946 P.2d 402 (1997), instruction approved by Division One of this court and instructing trial courts to only use approved Washington Pattern Jury Instructions: Criminal (WPICs)). Therefore, this court is not the appropriate venue for crafting new, unapproved, jury instructions—especially in light of the fact that an instruction regarding the weight a jury should give a jailhouse informant's testimony raises concerns about an inappropriate comment on the evidence.
¶ 32 We review a trial court's refusal to give a proposed jury instruction for abuse of discretion. State v. Picard, 90 Wash.App. 890, 902, 954 P.2d 336,review denied,136 Wash.2d 1021, 969 P.2d 1065 (1998). A court abuses its discretion when it exercises its discretion on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). It is reversible error for a trial court to refuse to give a proposed instruction if the instruction states the proper law and the evidence supports it. State v. Ager, 128 Wash.2d 85, 93, 904 P.2d 715 (1995). “ ‘[A] specific instruction need not be given when a more general instruction adequately explains the law and enables the parties to argue their theories of the case.’ ” State v. Brown, 132 Wash.2d 529, 605, 940 P.2d 546 (1997) (quoting State v. Rice, 110 Wash.2d 577, 603, 757 P.2d 889 (1988), cert. denied,491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989)), cert. denied,523 U.S. 1007, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998).
¶ 33 Gasteazoro–Paniagua's proposed jury instruction read,
Testimony of [T.J.] given on behalf of the Plaintiff, should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth.
Clerk's Papers (CP) at 59.
¶ 34 Gasteazoro–Paniagua's proposed jury instruction does not properly state the law because T.J. was not an accomplice or a jailhouse informant. Gasteazoro–Paniagua correctly asserts that uncorroborated accomplice testimony requires a separate cautionary instruction. State v. Harris, 102 Wash.2d 148, 685 P.2d 584 (1984) (“ ‘A conviction may rest solely upon the uncorroborated testimony of an accomplice only if the jury has been sufficiently cautioned by the court to subject the accomplice's testimony to careful examination and to regard it with great care and caution.’ ” (quoting State v. Carothers, 84 Wash.2d 256, 269–70, 525 P.2d 731 (1974))), overruled on other grounds by State v. Brown, 111 Wash.2d 124, 761 P.2d 588, 787 P.2d 906 (1988). But here, T.J. was not an accomplice or, arguably, a jailhouse informant. Therefore, the trial court did not abuse its discretion by refusing to give an instruction that is not required or supported by law.
¶ 35 Moreover, the trial court was not required to give a specific instruction regarding T.J.'s testimony because the jury was already instructed on evaluating the credibility of witnesses. Jury instruction 1 provided, in relevant part,
It is your duty to decide the facts in this case based upon the evidence presented to you during this trial....
....
... In order to decide whether any proposition has been proved, you must consider all of the evidence that I have admitted that relates to the proposition. Each party is entitled to the benefit of all of the evidence, whether or not that party introduced it.
You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In considering a witness's testimony, you may consider these things: the opportunity of the witness to observe or know the things he or she testifies about; the ability of the witness to observe accurately; the quality of a witness's memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness's statements in the context of all the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.
CP at 89–90; see also 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.02, at 13–15 (3d ed.2008). The general instruction on evaluating witness credibility is sufficient to instruct the jury on the proper consideration of T.J.'s testimony and a more specific instruction was not required. Gasteazoro–Paniagua was able to argue his theory that T.J.'s testimony was not credible under the instruction given. The general instruction specifically instructs juries to consider the witness's credibility in “any personal interest that the witness might have in the outcome or the issues” or “the reasonableness of the witness's statements in the context of all of the other evidence.” CP at 90. Therefore, Gasteazoro–Paniagua was able to argue that (1) T.J.'s testimony was not credible because he was getting a benefit from the State, and (2) that T.J.'s testimony was not credible based on evidence that T.J. and Gasteazoro–Paniagua may not have had any contact in the jail.
¶ 36 Gasteazoro–Paniagua's proposed jury instruction was not required by law and it was unnecessary because the general jury instructions were sufficient to permit Gasteazoro–Paniagua to argue his theory of the case. The trial court did not abuse its discretion when it refused to give Gasteazoro–Paniagua's proposed jury instruction.
Admissibility of Victim's Prior Inconsistent Statements
¶ 37 Gasteazoro–Paniagua argues that the trial court erred by allowing the State to introduce extrinsic evidence of Muro's out-of-court statements. We agree with Gasteazoro–Paniagua that the trial court erred in admitting evidence of Muro's prior inconsistent statements when Muro was not directly confronted with his prior statements. But such error is not reversible when the evidence was admissible on other grounds supported by the record. Here, Muro's prior statements were admissible under ER 801(d)(1)(iii), and the erroneous admission of the statements under ER 613 is not reversible error.
¶ 38 We review the trial court's ruling on the admissibility of prior inconsistent statements for an abuse of discretion. State v. Johnson, 90 Wash.App. 54, 69, 950 P.2d 981 (1998) (citing State v. Ortiz, 119 Wash.2d 294, 308, 831 P.2d 1060 (1992)). The trial court abuses its discretion if it bases its ruling on untenable grounds or untenable reasons. Johnson, 90 Wash.App. at 69, 950 P.2d 981 (citing State ex rel. Carroll, 79 Wash.2d at 26, 482 P.2d 775). Prior inconsistent statements are admissible to impeach a witness because “ ‘a person who speaks inconsistently is thought to be less credible than a person who does not.’ ” State v. Allen S., 98 Wash.App. 452, 467, 989 P.2d 1222 (1999) (quoting State v. Williams, 79 Wash.App. 21, 26–27, 902 P.2d 1258 (1995)), review denied, 140 Wash.2d 1022, 10 P.3d 405 (2000). But prior inconsistent statements can only be admitted to impeach if the witness's credibility was a fact of consequence to the action. Allen S., 98 Wash.App. at 468–69, 989 P.2d 1222. If a witness claims he cannot remember making the statement and says nothing from the witness stand that either party could have used for “its truth to prove a fact of consequence to the action,” prior inconsistent statements are not relevant or admissible for impeachment purposes. Allen S., 98 Wash.App. at 469, 989 P.2d 1222;see also, 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence at 361 (2010) (“if the witness claims a total lapse of memory and gives no substantive testimony whatsoever (i.e. gives no testimony favoring either party), a prior statement by the witness is inadmissible for impeachment because there is nothing to impeach”).
¶ 39 If the prior inconsistent statements are relevant and admissible for impeachment, “it is sufficient for the examiner to give the declarant an opportunity to explain or deny the statement, either on cross-examination or after the introduction of extrinsic evidence.” Johnson, 90 Wash.App. at 70, 950 P.2d 981 (citing McCormick on Evidence, § 37, at 121–22 (4th ed.1992); United States v. McLaughlin, 663 F.2d 949, 953 (9th Cir.1981); Shaw v. Sjoberg, 10 Wash.App. 328, 331, 517 P.2d 622 (1973)).
¶ 40 Here, the following exchanges took place during the State's direct examination of Muro:
[State]. All right. Okay, what other times did the detectives a(sic) and talk to you?
[Muro]. After surgery, I think it was.
[State]. Okay. While you were still in the hospital?
[Muro]. Yeah, yeah.
[State]. Do you remember the substance of that conversation?
[Muro]. No. That one I didn't ‘cause I was still drugged up, I just came out of surgery.
11–A RP at 743.
[State]. Do you remember the substance of the conversation between you and the police?
[Muro]. No, I don't.
[State]. Okay. Do you remember what they asked you?
[Muro]. Huh-uh.
[State]. You don't remember?
[Muro]. No, I don't remember.
[State]. Do you remember if they—strike that.
What do you remember about that conversation?
[Muro]. I don't remember anything. I just remember they came in and we were—like I said, I was really drugged up at that time and that's when I came out of surgery.
[State]. Uh-huh.
[Muro]. Yeah, I don't remember, I don't—I don't remember what I—what we talked about at all.
[State]. (Pause; reviewing notes.) You're saying that you did not see who shot you that evening; correct?
[Muro]. Yeah, that's correct.
[State]. Have you ever told anybody that you saw [Gasteazoro–Paniagua] shot—shoot you?
[Muro]. No.
[State]. At any point?
[Muro]. No.
11–A RP at 747–48. Gasteazoro–Paniagua did not cross-examine Muro about whether or not he ever identified his shooter.
¶ 41 The trial court erred by admitting extrinsic evidence of Muro's prior inconsistent statements only to the extent that Muro was not provided an adequate opportunity to admit, deny, or explain the specific statement.
¶ 42 Muro's primary testimony was that he had no recollection of making any statements to the officers because he was “drugged up” and that he did not see who had shot him. 11–A RP at 743, 747. He also stated that he had never told anybody that he saw Gasteazoro–Paniagua shoot him. But the State failed to ask Muro about the specific statements it intended to introduce for impeachment.
¶ 43 Muro's prior inconsistent statements were relevant and admissible as impeachment evidence, but the trial court erred by admitting the prior inconsistent statements because neither party laid a proper foundation by giving Muro the opportunity to deny or explain the specific statements. Johnson, 90 Wash.App. at 70, 950 P.2d 981. In Johnson, the following questions were deemed sufficiently specific:
We note that the failure to establish proper foundation could have been cured after the admission of extrinsic evidence of Muro's prior inconsistent statements. Johnson, 90 Wash.App. at 70, 950 P.2d 981. However, the trial court refused to allow Muro to retake the stand, thus preventing the State from being able to cure the procedural error.
“Q: All right. It is your understanding if you didn't blame somebody for this, for the fact that you have been shot, you wouldn't reap any monetary award?
A: No that's not it.
Q: Okay. Didn't you tell [your girlfriend] that very same thing?
A: No, I didn't.”
Johnson, 90 Wash.App. at 68, 950 P.2d 981 (emphasis omitted; alteration in original). But in State v. Horton, 116 Wash.App. 909, 916–17, 68 P.3d 1145 (2003), this court held that the defendant received ineffective assistance of counsel when his trial counsel failed to follow the procedural requirements of ER 613(b) and impeach a State's witness with her prior inconsistent statements. The relevant testimony in Horton was as follows:
“Prior to ... your physical examination [by Dr. Duralde] had you engaged in any sexual intercourse with a person other than the defendant?” S.S answered using only one word: “No.” Defense counsel then asked S.S., during cross examination: “You told the prosecutor this morning that you had not engaged in sexual intercourse with anyone other than Mr. Horton; correct?” After an intervening objection, S.S. again answered: “No.”
116 Wash.App. at 913, 68 P.3d 1145 (footnote omitted; alteration in original). Defense counsel had prior statements that S.S. made to two other people in which S.S. stated she had been sexually active with former boyfriends. Horton, 116 Wash.App. at 913, 68 P.3d 1145. Based on the above exchange, defense counsel failed to lay an appropriate foundation for the admission of S.S.'s prior statements because defense counsel “did not ask S.S. to explain or deny her pretrial statements.” Horton, 116 Wash.App. at 913, 68 P.3d 1145.
¶ 44 Here, Muro was only asked two closed-ended questions regarding the statements, similar to the questions in Horton. Like the questions in Horton, the closed-ended questions did not give Muro the opportunity to explain the statements. The prior questions were regarding Muro's interactions with the police, interactions which Muro stated he could not remember. Muro was never directly asked about conversations he may have had with his girlfriend, Yuliana Pina Penegas, after he was shot. Although the State briefly asked Muro about a prior statement, to lay a proper foundation to admit prior inconsistent statements, the questions should have been sufficiently specific to give Muro the opportunity to explain or deny a specific statement or occurrence. Accordingly, the State failed to lay an appropriate foundation under ER 613(b) and the trial court erred by allowing the State to present extrinsic evidence of Muro's prior inconsistent statements.
¶ 45 However, the error was harmless because the statements would have been properly admitted under ER 801(d)(1)(iii). Under ER 801(d)(1), a statement is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement and the statement is ... (iii) one of identification of a person made after perceiving the person.
In State v. Grover, 55 Wash.App. 252, 259, 777 P.2d 22,review denied, 113 Wash.2d 1032, 784 P.2d 531 (1989), Division One of this court held that under ER 801(d)(1)(iii), an officer was permitted to testify that a witness had identified the defendant by name after witnessing a robbery. Furthermore, there is no violation of either ER 801(d)(1)(iii) or the confrontation clause so long as the defendant is provided the opportunity to cross-examine the declarant. Grover, 55 Wash.App. at 258, 777 P.2d 22. Memory loss or denial does not render the statement inadmissible. See Grover, 55 Wash.App. at 255, 258, 777 P.2d 22 (holding admission of statement was proper even when the declarant testified that she had no memory of the crime or of identifying the defendant).
¶ 46 At trial, Muro claimed that did not know the identity of the shooter and he testified that he did not remember the substance of his conversations with the detectives. But both the detectives and Pina Penegas testified that after the shooting, Muro identified Gasteazoro–Paniagua as the shooter. Because Muro's statements were statements of identification, Muro testified at trial, and he was subject to cross-examination, the statements are not hearsay under ER 801(d)(1)(iii) and are admissible. Furthermore, under the rule articulated in Grover, Muro's lack of memory and his denial about making the statements do not render the statements inadmissible.
¶ 47 Because the testimony regarding Muro's statements is admissible under ER 801(d)(1)(iii), the trial court's erroneous admission of the statements without following the proper procedures required by ER 613 is not reversible error.
Motion for Mistrial
¶ 48 Gasteazoro–Paniagua assigns error to the trial court's denial of his motion for mistrial made after Deputy Eric O'Dell identified Gasteazoro–Paniagua as the assailant in the surveillance video. Gasteazoro–Paniagua argues that the officer's testimony violated the trial court's ruling in limine to exclude police officer's opinions as to his guilt. The State responds, asserting that the testimony was proper, or, alternatively, that “any error was not serious” and invited. Br. of Resp't at 43. The testimony to which Gasteazoro–Paniagua objects was in response to his own question during cross-examination and was invited error. Therefore, we need not address whether the trial court erred by denying Gasteazoro–Paniagua's motion for a mistrial.
¶ 49 The invited error doctrine precludes a party from setting up an error at trial and then complaining of it on appeal. State v. Henderson, 114 Wash.2d 867, 870–71, 792 P.2d 514 (1990). Specifically, statements elicited on cross-examination are considered invited error and are precluded from consideration on appeal. State v. Vandiver, 21 Wash.App. 269, 273, 584 P.2d 978 (1978). During cross-examination, the following exchange took place:
[Defense Counsel]. And were you able to identify either of those individuals [in the video]?
[O'Dell]. The—the one subject in the light clothing, no; the one subject in the dark clothing was Mr. Paniagua (indicating).
[Defense Counsel]. Well, how do you know that?
[O'Dell]. Well
[Defense Counsel]. Could you identify him from that video?
[O'Dell]. Could I?
[Defense Counsel]. Yeah.
[O'Dell]. I didn't look at it close enough to do the identification.
[Defense Counsel]. So you're just believing that's him, that's not an identification; correct?
[O'Dell]. That's that's what our investigation
[Defense Counsel]. No—.
[O'Dell].—led to.
[Defense Counsel]—I'm asking you what you could see.
[O'Dell]. Oh, I didn't—that wasn't my responsibility, no, I didn't do that.
[Defense Counsel]. So the answer is no.
[O'Dell]. Correct.
....
[Defense Counsel]. You do not know who that person in that video was at the time you observed that video.
[O'Dell]. At the time that I observed it, no, I had no idea who
[Defense Counsel]. Okay.
[O'Dell].—it was.
10–B RP at 601–02. Defense counsel elicited the officer's statement identifying Gasteazoro–Paniagua in the surveillance video during cross-examination. Moreover, rather than objecting to the officer's answer and asking it be stricken, defense counsel continued to question the officer about his identification of the subject in the video. Defense counsel elicited, and then elaborated on, the testimony to which he now objects, therefore the testimony was invited error. As a result, we do not decide whether the officer's statements were improper opinion testimony or whether the trial court erred by denying Gasteazoro–Paniagua's motion for a mistrial.
Hearsay Statements
¶ 50 Gasteazoro–Paniagua also asserts that the officers' testimony regarding statements made by Muro's family and Gasteazoro–Paniagua's wife, Melissa Ibanez, were inadmissible hearsay. Gasteazoro–Paniagua argues that the State had no reason to introduce the witnesses' statements to prove the course of the police investigation. We agree, but because the admission of the hearsay statements was harmless, the error is not reversible.
¶ 51 We review de novo whether a statement is hearsay. State v. Edwards, 131 Wash.App. 611, 614, 128 P.3d 631 (2006) (citing State v. Neal, 144 Wash.2d 600, 607, 30 P.3d 1255 (2001)). Hearsay is an out-of-court statement offered “to prove the truth of the matter asserted.” ER 801(c). “A statement is not hearsay if it is used only to show the effect on the listener, without regard to the truth of the statement.” Edwards, 131 Wash.App. at 614, 128 P.3d 631 (citing State v. Roberts, 80 Wash.App. 342, 352–53, 908 P.2d 892 (1996); State v. Jessup, 31 Wash.App. 304, 314–15, 641 P.2d 1185 (1982)).
¶ 52 Generally, a trial court may admit out-of-court statements for the relevant nonhearsay purpose of explaining “why an officer conducted an investigation.” State v. Iverson, 126 Wash.App. 329, 337, 108 P.3d 799 (2005) (citing State v. Williams, 85 Wash.App. 271, 280, 932 P.2d 665 (1997)); ER 401. If the trial court errs by admitting such statements because they are irrelevant, the error is not of constitutional magnitude and we determine whether, within reasonable probabilities, the outcome of the trial would not have differed in the absence of the error. State v. Jackson, 102 Wash.2d 689, 695, 689 P.2d 76 (1984); State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997). If the outcome would not have differed, the error is harmless. Jackson, 102 Wash.2d at 695, 689 P.2d 76.
¶ 53 Here, the trial court granted Gasteazoro–Paniagua's motion in limine to exclude hearsay statements Muro and his family made to the detectives that Gasteazoro–Paniagua had a firearm on the day before the shooting. The trial court ruled that police officers could testify as to whether they spoke to Muro and his family members and about their investigation but excluded the statements family members made specifically about Gasteazoro–Paniagua possessing a firearm the day before the shooting.
¶ 54 Detective Buckner testified that he spoke with Muro and his family members who gave him Gasteazoro–Paniagua's name as a possible suspect. Gasteazoro–Paniagua objected on hearsay and relevancy grounds. The trial court overruled the objection but told the deputy to “[t]ell us what you heard, but be a minimalist, detective. If that makes sense.” 11–B RP at 839. Buckner further testified that he spoke with Ibanez and that his investigation led him to a dumpster in Portland that contained incriminating evidence and to two nearby motels. Gasteazoro–Paniagua again objected on hearsay (and Crawford ) grounds and the trial court ruled it would allow the testimony as long as it was phrased in terms of the police investigation rather than Ibanez's actions. In addition, Detective Schultz testified that she interviewed Muro and several members of his family and learned many details about Gasteazoro–Paniagua's affair with Sanchez and the history between Gasteazoro–Paniagua, Muro, and Muro's brother, Juan Muro.
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
¶ 55 The State argues that the detectives' testimony was not hearsay because it was evidence showing how the police's investigation led them to suspect Gasteazoro–Paniagua was relevant at trial. SeeER 803(a)(3). We disagree. To be admissible under the “state of mind” exemption to the hearsay rule, the officer's state of mind must be an issue in controversy. ER 803(a)(3); see Edwards, 131 Wash.App. at 614, 128 P.3d 631. Here, the only issue in controversy was the identity of the person who shot Muro. The statements that family members made to the police were relevant to proving Gasteazoro–Paniagua was the person who shot Muro. Accordingly, the statements were hearsay and the trial court erred by admitting them.
¶ 56 But improper admission of hearsay is harmless if, within reasonable probabilities, the outcome of the trial court would not have differed in the absence of the error. Jackson, 102 Wash.2d at 695, 689 P.2d 76. The improperly admitted hearsay statements were cumulative of other, properly admitted testimony. Several witnesses testified about Gasteazoro–Paniagua's affair with Sanchez and the affair's effect on Gasteazoro–Paniagua's relationship with Muro. And Gasteazoro–Paniagua testified about the trip to Portland where he and Ibanez stayed in the motels. Therefore, the outcome of the trial would not have differed if the hearsay statements had been excluded and the erroneous admission of the statements was harmless. Jackson, 102 Wash.2d at 695, 689 P.2d 76.
Prosecutorial Misconduct
¶ 57 Gasteazoro–Paniagua argues that the State committed prosecutorial misconduct during closing arguments by improperly shifting the burden of proof and improperly commenting on Gasteazoro–Paniagua's right to be present at trial. Gasteazoro–Paniagua also argues that he received ineffective assistance of counsel because his trial counsel did not object to the State's arguments during trial. Because the State's comments were proper under the law at the time of Gasteazoro–Paniagua's trial, the State's comments were not flagrant and ill-intentioned. Because the State did not commit misconduct during closing argument, there was no reason for defense counsel to object. Therefore, Gasteazoro–Paniagua's ineffective assistance of counsel claim also fails.
¶ 58 To prevail on a claim of prosecutorial misconduct, Gasteazoro–Paniagua must establish “ ‘that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.’ ” State v. Magers, 164 Wash.2d 174, 191, 189 P.3d 126 (2008) (quoting State v. Hughes, 118 Wash.App. 713, 727, 77 P.3d 681 (2003), review denied,151 Wash.2d 1039, 95 P.3d 758 (2004)); State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003); State v. Gregory, 158 Wash.2d 759, 809, 147 P.3d 1201 (2006) (citing State v. Kwan Fai Mak, 105 Wash.2d 692, 726, 718 P.2d 407,cert. denied,479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986)). Gasteazoro–Paniagua must establish prejudice by proving that “ ‘there is a substantial likelihood [that] the instances of misconduct affected the jury's verdict.’ ” Magers, 164 Wash.2d at 191, 189 P.3d 126 (quoting State v. Pirtle, 127 Wash.2d 628, 672, 904 P.2d 245 (1995), cert. denied,518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996)); Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432. The “failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” State v. Russell, 125 Wash.2d 24, 86, 882 P.2d 747 (1994), cert. denied,514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995); accord State v. Fisher, 165 Wash.2d 727, 747, 202 P.3d 937 (2009).
¶ 59 A prosecutor commits misconduct by misstating the law regarding the burden of proof, e.g., by implying the defense bears a burden to produce evidence of innocence. State v. Fleming, 83 Wash.App. 209, 213–14, 921 P.2d 1076 (1996), review denied,131 Wash.2d 1018, 936 P.2d 417 (1997); In re Winship, 397 U.S. 358, 361–62, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (a defendant has no duty to present evidence). But it is not misconduct to argue that the evidence does not support the defense theory. Russell, 125 Wash.2d at 87, 882 P.2d 747. During closing arguments, we afford the prosecutor wide latitude in making arguments and drawing reasonable inferences from the evidence. Fisher, 165 Wash.2d at 747, 202 P.3d 937.
¶ 60 Gasteazoro–Paniagua did not object to either of the State's arguments during closing argument. Therefore, to prevail on his claim of prosecutorial misconduct, Gasteazoro–Paniagua must show that (1) the State's arguments were flagrant and ill intentioned, and (2) that the State's arguments created “an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” Russell, 125 Wash.2d at 86, 882 P.2d 747. The first argument Gasteazoro–Paniagua challenges is as follows:
So the only issue is who did it. That's what this case boils down to, who did it. You sat through two weeks of testimony. There's been zero evidence of anybody else who had a motive or the opportunity or the means to commit this crime.
There's been no alternative theory, no alternative suspect. Jose Muro had no enemies, was not in a dispute, argument or a fight with anybody other than with the defendant.
....
... Nothing to indicate why Jose Muro was shot other than by the defendant.
17–B RP at 1989. But contrary to Gasteazoro–Paniagua's assertion, the State's argument did not imply that Gasteazoro–Paniagua had the burden of producing evidence that another person committed the crime. Instead, the State relied on the facts presented at trial to draw the inference that the only person with motive to shoot Muro was Gasteazoro–Paniagua. Accordingly, the State's argument was not misconduct. Russell, 125 Wash.2d at 87, 882 P.2d 747.
¶ 61 The second challenged argument is as follows:
So he lied to the police then. Today he gets on the stand and says, Yeah, I swear to tell the truth. And he—he expects you to believe him today after admitting that—that he's—he's lied in the past.
What's the difference between then and now? Well, I'll tell you what's the difference. Number one, he's had time to think about it. He's had time to perfect whatever story he wants to tell.
Plus he's got the advantage of sitting through and listening to all of the testimony from all the witnesses presented to you in the past couple weeks. Then he neatly fills in and completes the story and has an explanation for why things happened and why he wasn't there.
17–B RP at 1992–93. Gasteazoro–Paniagua claims the prosecutor improperly pointed out that he had the advantage of hearing other witnesses testify before testifying himself. At the time of Gasteazoro–Paniagua's trial, State v. Miller, 110 Wash.App. 283, 40 P.3d 692,review denied, 147 Wash.2d 1011, 56 P.3d 565 (2002), was the controlling law regarding whether the State commits misconduct by arguing that the defendant had the advantage of hearing all the witnesses testify at trial. Miller adopted the United States Supreme Court's opinion in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000), holding that commenting on the defendant's presence during the testimony of other witnesses does not violate the defendant's constitutional right to be present. 110 Wash.App. at 284, 40 P.3d 692. Because the State's comments were consistent with the law at the time they were made, they were not flagrant and ill intentioned. Accordingly, Gasteazoro–Paniagua's prosecutorial misconduct claim fails.
We recognize that Miller was overturned by our Supreme Court in State v. Martin, 171 Wash.2d 521, 252 P.3d 872 (2011), in which the court held that art. I, § 22 of the Washington Constitution provides greater protection than the Sixth Amendment. Instead of adopting the majority rule expressed by the United States Supreme Court in Portuondo, our Supreme Court adopted the more restrictive rule articulate by Justice Ginsburg in her dissent. Martin, 171 Wash.2d at 532–35, 252 P.3d 872. But Martin was not decided until almost a year after Gasteazoro–Paniagua's trial.
¶ 62 In addition to his prosecutorial misconduct claims, Gasteazoro–Paniagua argues that he received ineffective assistance of counsel because his trial counsel failed to object to the State's arguments. To demonstrate ineffective assistance of counsel, Gasteazoro–Paniagua must show that his counsel's performance was deficient and the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McFarland, 127 Wash.2d at 334–35, 899 P.2d 1251. Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wash.2d 668, 705, 940 P.2d 1239 (1997), cert. denied,523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998); State v. Grier, 171 Wash.2d 17, 33, 246 P.3d 1260 (2011). Because the State's comments were not improper at the time they were made, a reasonable defense attorney would not have objected to them. Therefore, Gasteazoro–Paniagua's trial counsel's performance was not deficient. Gasteazoro–Paniagua cannot show that his counsel's performance was deficient, and his ineffective assistance of counsel claim must fail.
Firearm Enhancement Jury Instruction
¶ 63 Gasteazoro–Paniagua contends that the trial court committed reversible error by instructing the jury that unanimity was required to answer “no” on the special verdict forms for the firearm enhancement. Because the Supreme Court recently overturned Goldberg, and overruled the “nonunamity rule” for special verdicts, the trial court did not err, as a matter of law, in informing the jury that it needed to agree unanimously on the answer to the special verdict. Nunez, 174 Wash.2d at 714, 285 P.3d 21.
¶ 64 Gasteazoro–Paniagua has failed to identify a reversible error in his trial. Accordingly, we affirm.