Summary
noting that trial court permitted expert testimony with respect to, inter alia, the weapon focus effect
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No. 63556-5-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-09739-7, Laura Gene Middaugh, J., entered May 26, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Grosse and Ellington, JJ.
A jury convicted Ismail Hassan of two counts of assault in the first degree with a firearm enhancement. On appeal, Hassan claims that by allowing the State to amend the information after the verdict, the trial court violated his constitutional rights and CrR 2.1(d). Hassan also claims the court abused its discretion in limiting the scope of expert witness testimony and erred in giving a missing witness jury instruction. We affirm.
FACTS
On the evening of August 30, 2008, Yudith Fuentes Carrazco celebrated her 26th birthday with her boyfriend, Fidel Juarez Castillio. Later that evening, Yudith and Fidel went to celebrate with Yudith's sister, Benecia Carrazco and her boyfriend, Ismail Hassan at their apartment in the Cove Apartments complex. Hassan was not there, but he arrived a short time later accompanied by two men. Hassan identified the two men as "cousins." Hassan was wearing a yellow polo shirt that night. Soon thereafter, a number of Yudith's and Fidel's friends arrived. The group included Fidel's two brothers, Oscar and Luis, and friends, Mari Carmen Vasquez, Martha Mercado, and Eduardo Nicio.
Hassan and his two cousins were described by witnesses as "African" or "African-American." The witnesses at the party said both cousins were shorter than Hassan, and one wore a white shirt.
Most of the witnesses said Hassan's shirt was yellow, but some described it as orange.
He greeted the guests and offered them drinks. Shortly after Fidel's brothers and friends arrived, Hassan's friend Brian Williams, his wife, and Yudith's sister Benecia, left the apartment to take someone home. Awhile later, Hassan told Yudith, Fidel, and their friends that they were being too loud. The group decided to leave. However, before they could do so, Fidel and Hassan got into a fight. Yudith called 911.
Yudith had met Hassan "many times" because of his involvement for a year and a half with her sister. She had also met his cousins before. The three brothers, Fidel, Luis, and Oscar, had also met or seen Hassan before.
Fidel's brothers intervened to pull Fidel and Hassan apart, saying "stop, we're leaving . . . don't make this thing anything bigger." One of Hassan's cousins grabbed the knife that was used to cut the birthday cake and threatened Fidel with it. While the others were leaving, some of them heard Hassan say "bring the guns, bring the nine." As they were running down the stairs to the parking lot, someone threw a beer bottle and hit one of them on the head.
Luis, Fidel, Yudith, and Mari Carmen got into Luis's truck. Martha Mercado and Oscar got into Mercado's car. As the two vehicles drove past Hassan's apartment, they saw Hassan standing with a shotgun. Hassan was aiming the shotgun at the two vehicles. Most of the passengers also testified that one of the cousins was standing next to Hassan holding a handgun and the other cousin was walking toward Hassan. Hassan fired at least three, and possibly four, shots at the two vehicles.
Mercado said she had just seen Hassan, so she "recognized his face" and he was still wearing the yellow shirt. Luis and Oscar also testified they recognized Hassan's face. Mari Carmen said the shooter was wearing the same yellow shirt, and she also recognized him as being the same person from the party. Fidel said "I saw him in the eyes, it was Ismail."
The truck rear window was shattered, but the car Mercado was driving sustained only minor damage and none of the passengers sustained significant injury.
Eduardo Nicio testified that as his friends and Hassan were leaving the apartment, Hassan's cousins grabbed him, pulled him back into the apartment, and punched him for several minutes. Nicio said he was only able to get away after he heard shots. Nicio testified that as he ran down the stairs, he encountered Hassan at the bottom of the stairs. Nicio said that Hassan hit him in the face, and then continued up the stairs. Nicio ran to the entrance of the complex where the police had stopped Luis's truck and Mercado's car.
Monique Castain, a resident of the complex, testified that at about 4:15 a.m. she heard sounds of fighting outside. Less than five minutes later, Castain looked out the window and saw a black male wearing an "orange shirt" at the stairway to the parking lot holding a shotgun. She said that he was joined by another, shorter black man holding a knife, and the two walked over to the garage area of the parking lot, then disappeared from view. Castain called 911. While Castain was on the phone with 911, she heard gunshots.
Another resident, Melody Bruscas, heard the sound of fighting. She saw two men open the garage door of the building across the street, open the trunk of the car, and take out a "large gun." Bruscas said the man carrying the gun was black, was wearing a yellow shirt, and was taller than the other man. Bruscas said that after the two men walked around the corner, she heard gunshots and called 911.
Federal Way Officer Raymond Bunk arrived at the apartment complex in response to a report of a fight with a weapon. After Officer Bunk blocked the entrance to the complex with his police car, he heard the sounds of gunshots. Immediately thereafter, Officer Bunk saw a truck and a car approaching at high speed and stopped both vehicles.
When backup arrived a few moments later, the police officers placed each of the occupants of the vehicles in separate patrol cars to question them. Each of the occupants described the shooter, one of them said his name was "Ismail."
The police officers searched the parking lot and recovered two spent twelve gauge shotgun shells. Hassan approached the officers and identified himself by name. Hassan matched the description of the shooter. Hassan was dressed in pajama bottoms and a tank top. Hassan said he was in his apartment when he heard shots, and came out to investigate.
Hassan told the officer he lived in apartment 111, although his apartment was No. 108.
After the police arrested Hassan and advised him of his Miranda rights, they asked Hassan where the gun was located. Hassan said he had been home alone, and did not have a gun. Hassan told the officers there had been a number of people at his apartment earlier that evening, that they had been loud and drunk, and he "kicked them out." When asked about the two men who had been with him earlier, Hassan did not identify them by name, but said his "cousins had left." Hassan gave the police officers consent to search his apartment and his car.
The police found a yellow polo shirt with orange and brown writing on the front in Hassan's bedroom. They also found a case for a 9 mm handgun and a handgun holster elsewhere in the apartment. In the trunk of his car, the officers found an empty box of shotgun ammunition. The police never located the shotgun.
This ammunition box was the same brand, but not the same type of ammunition recovered in the parking lot.
Each of the occupants of the vehicles identified Hassan as the shooter and identified the shirt found in his apartment as the one Hassan had been wearing earlier in the evening.
The State charged Hassan with two counts of assault in the first degree. In count I, the State alleged assault in the first degree with a firearm of Mari Carmen, Yudith, Luis and Fidel. In count II, the State alleged assault in the first degree with a firearm of Martha Mercado and Oscar. Shortly before trial, the court granted the State's motion to amend the information to add a firearm enhancement for each count.
During the approximately two-week long trial, the occupants of the two vehicles, the two residents of the apartment complex who called 911, and several police officers testified on behalf of the State. Each of the victims identified Hassan as the person who fired the shotgun.
Hassan's defense was general denial. The defense theory was that the victims had misidentified Hassan as the shooter. Hassan presented the testimony of two expert witnesses, psychologist Dr. Geoffrey Loftus, and firearms expert Kay Sweeney. Dr. Loftus testified about memory and factors that affect eyewitness identification. Sweeney testified that the shotgun shells and handgun box could have been tested for latent fingerprints, and that he would expect to find the presence of gunshot residue on the person or clothing of someone who fired a shotgun up to four hours after the shooting. But Sweeney admitted that the damage to the vehicles was caused by a twelve gauge shotgun.
The defense also presented the testimony of two other residents of the complex. Neither of the residents witnessed the shooting. Mike Ochoa testified that he saw Hassan shortly after hearing gunshots. The other resident, Brian Williams, had been at Hassan's apartment earlier in the evening, but left before the fight broke out. Williams said that while he was walking around the apartment complex trying to find out why the police were there, he saw Hassan's cousins and told them to go to his apartment. Williams testified that Hassan's cousins stayed at his apartment until the middle of the following day when Williams dropped them off at a shopping mall.
Before closing arguments, the State moved to amend the information to correct the names of the victims identified in count I. The defense did not object. The court granted the motion to amend. The second amended information substituted "Yudith Fuentes Carrazco" for "Yudith Fuentes," "Mari Carmen Vasquez" for "Mari Carmen Vasquez Calderon," and deleted a hyphen in Fidel's surname, Juarez Castillio. However, unbeknownst to the court and the parties, the second amended information also changed the charge in count II from assault in the first degree to assault in the second degree.
The parties only proposed instructions for the crime of assault in the first degree. Hassan's proposed instructions included a definition of "great bodily harm," a necessary element of assault in the first degree, and proposed a verdict form and special verdict forms identifying the charges in both count I and count II as assault in the first degree. The "[t]o convict" instructions for each count stated that in order to find Hassan guilty of the crime of assault in the first degree, the jury had to find that he committed assault "with a firearm or with a deadly weapon or by a force or means likely to produce great bodily harm."
During closing argument, both the State and the defense emphasized that in order to convict Hassan, the jury had to find beyond a reasonable doubt that Hassan had committed assault in the first degree. The jury returned verdicts for each count finding Hassan guilty of "the crime [of] Assault in the First Degree" and in the special verdict forms found that Hassan was armed with a firearm for each count.
Hassan filed a motion for a new trial, arguing that the evidence did not establish intent to inflict great bodily harm with respect to count II. Hassan asserted that because the shooter fired at close range and failed to damage Martha Mercado's vehicle, the evidence did not support his conviction for assault in the first degree. The trial court denied the motion.
Before sentencing, the court notified the parties that the second amended information had changed the charge in count II from assault in the first degree to assault in the second degree. At the outset of the sentencing hearing, the State informed the court that alteration of the charge in count II in the second amended information was an unintentional clerical error. The State moved to amend the information to accurately reflect the charge of assault in the first degree. Hassan's attorney conceded that it was "clear" that the purpose of the second amended information was to correct the victims' names. But the attorney argued that even though "the Jury found Mr. Hassan guilty of first degree assault," because the information was inadvertently amended to change the charge to assault in the second degree in count II, the court should deny the motion to amend and to enter a verdict on assault in the second degree for count II. The court granted the State's motion to amend and file a third amended information correcting the clerical error.
The prosecutor explained the reason for the error was that during the plea negotiations, the State proposed that Hassan plead guilty to second degree assault on count II and drafted an amended information to that effect. That information was the last version on the computer and the alteration of count II was therefore erroneously incorporated into the second amended information.
The court imposed a standard range sentence. Hassan appeals.
ANALYSIS
Hassan argues the trial court erred in granting the State's motion to amend the information after the jury verdict. Hassan also contends the court abused its discretion in limiting the scope of expert witness testimony, and erred in giving a missing witness jury instruction. Amendment of the Information
Hassan contends the trial court violated his constitutional rights and CrR 2.1(d) by allowing the State to file an amended information after the jury verdict. The State argues that allowing the State to file an amended information correcting a clerical error did not prejudice Hassan or violate his constitutional rights. We agree.
Under the federal and state constitutions, a defendant must be informed of the accusation against him. State v. Taylor, 140 Wn.2d 229, 236, 996 P.2d 571 (2000). "[T]he primary purpose of [a charging] document is to supply the accused with notice of the charge that [the accused] must be prepared to meet." State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991).
The United States Constitution provides that "[i]n all criminal prosecutions, the accused shall . . . be informed of the nature and cause of the accusation." U.S. Const. amend. VI. The Washington Constitution contains a similar provision: "In criminal prosecutions the accused shall have the right . . . to demand the nature and cause of the accusation against him, [and] to have a copy thereof." Const. art. I, §§ 22.
The trial court may permit the information in a criminal case "to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced." CrR 2.1(d). When a defendant seeks reversal because of a late amendment, he has the burden of demonstrating "specific prejudice resulting from the information amendment." State v. James, 108 Wn.2d 483, 489, 739 P.2d 699 (1987). Specific prejudice includes surprise or the inability to prepare a defense. See James, 108 Wn.2d at 489-90. This court reviews a decision to grant a motion to amend the information for abuse of discretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995).
Hassan contends the decisions in State v. Pelkey, 109 Wn.2d 484, 490, 745, P.2d 854 (1987), and State v. Vangerpen, 125 Wn.2d 782, 888 P.2d 1177 (1995), require reversal of his conviction on count II and remand for entry of conviction for assault in the second degree.
In Pelkey, our Supreme Court held alteration of the charge after the State's case in chief violates the defendant's constitutional rights under article I, §§ 22, and that the trial court erred in allowing the State to amend the information to allege a new crime after the State's case in chief. Pelkey, 109 Wn.2d at 487. The court states that the late amendment was "necessarily" prejudicial and infringed upon the defendant's constitutional right to be informed of the nature of the accusation and charge. Pelkey, 109 Wn.2d at 491. The court ruled that the trial court cannot grant the State's motion to amend to charge a new crime, unless the amendment is to a lesser degree of the same charge or a lesser included offense. Pelkey, 109 Wn.2d at 491.
In Vangerpen, the State charged the defendant with attempted murder in the first degree but inadvertently failed to include the necessary element of premeditation. Vangerpen, 125 Wn.2d at 785. The trial court allowed the State to amend the information to add the element of premeditation after the State's case in chief. Vangerpen, 125 Wn.2d at 785-86. The Supreme Court reversed. The court held that the amendment violated the rule in Pelkey because it changed the crime charged from attempted murder in the second degree to attempted murder in the first degree. Vangerpen, 125 Wn.2d at 791. The court reiterated that "any amendment from one crime to a different crime after the State has rested its case is per se prejudicial error (unless the change is to a lesser included or lesser degree crime)." Vangerpen, 125 Wn.2d at 791. The court rejected the State's contention that omission of the premeditation element was a "`scrivener's error'" that could be corrected without implicating the Pelkey rule, because the "omission of an essential statutory element cannot be considered a mere technical error." Vangerpen, 125 Wn.2d at 790.
Unlike in Pelkey and Vangerpen, here, the court and the parties were unaware of the inadvertent change in the charge when the State filed the second amended complaint. Hassan does not dispute that throughout the trial proceedings, he had notice that he was charged with two counts of assault in the first degree. Nor does Hassan dispute that the change of the charge in count II in the second amended information was not approved by the court, noticed by the parties, nor relied on by the defense or the State at trial.
The State moved to file the second amended information before closing argument. The stated purpose of amending the information was "to correct a scrivener's error" in one of the victim's names, and to include a new surname for one of the victims who was in the process of changing her name. The defense did not object to the amendment of the information for that purpose. The defense waived formal reading and the court granted the motion to amend for that purpose. The evidence at trial, the jury instructions, and closing arguments only addressed assault in the first degree.
Before sentencing, the court notified the parties that the second amended information changed the charge in count II from assault in the first degree to assault in the second degree. The prosecutor explained at the sentencing why the error occurred. During plea negotiations, the State offered Hassan the opportunity to plead guilty to second degree assault for count II and drafted an amended information to that effect. Because that information was the last version saved on the computer, the second amended information erroneously included that change.
The record does not support Hassan's claim that the trial court approved amending count II from assault in the first degree to assault in the second degree. The record shows the court granted the motion to amend to correct the names of the victims "and for no other purpose." The court stated, in pertinent part:
This was a clerical error, and the trial was on two counts of assault in the first degree, and that's what went to trial. This is what was tried and this was clearly an error. It was my intention to allow the filing of the amended information to correct the name of the victim and for no other purpose, and I probably should have reviewed the information more closely to make sure that the only thing that was in it was what my intention was, which was to file that.
So, and I did review the file from beginning to end when I found that error to make sure that the prior information that was filed was for two counts of Assault 1, and it was.
So, it was clearly a clerical error in that I did not review what I was allowing to be amended more closely. And so I am signing this, the motion to amend, and it is to correct a clerical error. And I believe that I clearly have the authority to do that.
The trial court did not violate Hassan's constitutional rights or CrR 2.1(d) by allowing the State to file the third amended information after the jury verdict to correct a clerical error that resulted in an inadvertent change of the charge in count II. Hassan was not prejudiced by the amendment of the information, and the trial court did not abuse its discretion in allowing amendment.
Expert Testimony
Hassan also contends the trial court violated his constitutional right to present a defense by improperly limiting the scope of Dr. Loftus's testimony on eyewitness identification.
A defendant in a criminal case has a constitutional right to present the testimony of witnesses in order to establish a defense. State v. Cheatam, 150 Wn.2d 626, 648, 81 P.3d 830 (2003). But a defendant's constitutional right to present evidence is not unfettered. A defendant does not have a right to introduce irrelevant or inadmissible evidence. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992).
The admission of evidence lies largely within the sound discretion of the trial court and its decision will not be reversed on appeal absent an abuse of discretion. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004). This court also reviews a ruling under ER 702 for an abuse of discretion. State v. Greene, 139 Wn.2d 64, 70, 984 P.2d 1024 (1999). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
ER 702 allows qualified experts to testify regarding "scientific, technical, or other specialized knowledge" if the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004); State v. Farr-Lenzini, 93 Wn. App. 453, 461, 970 P.2d 313 (1999).
ER 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Here, the court allowed Dr. Loftus to testify at trial about issues related to memory and the fluidity of memory, cross-racial identification, weapons focus, and the effects of stress on memory. The trial court limited Dr. Loftus's testimony in only two respects. First, the court excluded his testimony that lighting conditions affect perception on the grounds that the testimony was within the common knowledge of the jurors. Secondly, the court excluded Dr. Loftus's opinion that the witnesses should have identified the logo or the numbers printed on Hassan's shirt as a comment on the credibility of the witnesses because the witnesses were only asked the color of the suspect's shirt.
Where eyewitness identification of the defendant is a key factor in the State's case:
[T]he trial court must carefully consider whether expert testimony on the reliability of eyewitness identification would assist the jury in assessing the reliability of eyewitness testimony. In making this determination the court should consider the proposed testimony and the specific subjects involved in the identification to which the testimony relates, such as whether the victim and the defendant are of the same race, whether the defendant displayed a weapon, the effect of stress, etc. This approach corresponds with the rules for admissibility of relevant evidence in general and admissibility of expert testimony under ER 702 in particular.
Cheatam, 150 Wn.2d at 649.
In Cheatam, the court held the trial court did not abuse its discretion in excluding Dr. Loftus's testimony about the reliability of eyewitness identification related to stress, cross-racial identification, weapons focus, and lighting. In addressing the question of whether Dr. Loftus should have been allowed to testify as to the lighting conditions, the court also noted "[a]rguably, the testimony offered on this point was within the common understanding of jurors." Cheatam 150 Wn.2d at 650. The court concluded that because the question of "whether the expert testimony proffered here was both relevant and helpful is debatable," the trial court's decision to exclude Dr. Loftus's testimony was not an abuse of discretion. Cheatam, 150 Wn.2d at 652.
Hassan argues that the court improperly limited Dr. Loftus's testimony by only allowing him to testify that memory is affected by "non-intuitive" factors which "likely" undermined his credibility. We disagree with the assertion that Dr. Loftus was only allowed to testify to "non-intuitive" factors. The trial court allowed Dr. Loftus to testify that the accuracy of perception is affected by the amount of time the event lasts, and environmental factors such as lighting conditions and distance. Dr. Loftus also testified that memory is affected by the accuracy of a witness's perception at the time of the initial event. Moreover, Dr. Loftus's testimony about the effect of stress and presence of weapons on perception did not suggest that the accuracy of memory is not also affected by commonly accepted factors, such as lighting.
Hassan also asserts that the court improperly limited the testimony of his firearms expert Sweeney. Contrary to Hassan's assertion on appeal however, Hassan withdrew the request for Sweeney to testify about the distance from which the shotgun was fired. The court disallowed only Sweeney's proposed testimony about nighttime perception of color based on the lighting at the scene because the court concluded it was outside Sweeney's area of expertise, and because the photographs he relied on were not taken where the shooting occurred. Hassan offers no argument about why this ruling was an abuse of discretion nor explains how he was prejudiced.
Furthermore, during cross examination the defense asked the witnesses about the lighting conditions at the scene and brought out the fact that those conditions would have affected the witness's ability to accurately identify the shooter. And in closing argument, Hassan's attorney pointed out how the conditions affected the accuracy of the witnesses' identification of Hassan as the shooter.
The record shows that the trial court carefully considered Dr. Loftus's identification testimony and did not abuse its discretion in limiting the scope of his testimony.
Without explicitly assigning error, Hassan suggests the trial court improperly disparaged Dr. Loftus's testimony. However, the context of the remarks make clear that the court did not do so. The court did not suggest that the jury would be "bored" by Dr. Loftus's testimony, nor did it make a sarcastic remark about the testimony. Pretrial, in discussing the parameters of Dr. Loftus's testimony, the court said that the proposed testimony about how memory develops, while it "may be informative or it may be boring," to be helpful to the jury must be "tied specifically to this case." Moreover, the court's remark to the jury, "[t]his is exciting, isn't it, guys?" was in reference to the sidebar requested by the State, not to Dr. Loftus's testimony.
Missing Witness Instruction
Hassan also claims the trial court erred in giving a "missing witness" jury instruction. Hassan argues that giving the missing witness instruction unconstitutionally infringed on his right against self-incrimination and impermissibly shifted the burden of proof. Alternatively, Hassan contends that the trial court abused its discretion in giving the instruction based on the facts in the case.
The missing witness instruction states:
If a person who could have been a witness at trial is not called to testify, you may be able to infer that the person's testimony would have been unfavorable to a party in the case. You may draw this inference only if you find that:
(1) The witness is within the control of, or peculiarly available to, that party;
(2) The issue on which the person could have testified is an issue of fundamental importance, rather than one that is trivial or insignificant;
(3) As a matter of reasonable probability, it appears naturally in the interest of that party to call the person as a witness;
(4) There is no satisfactory explanation of why the party did not call the person as a witness; and
(5) The inference is reasonable in light of all the circumstances.
The parties in this case are the State of Washington and Ismail Hassan.
It is appropriate to give a missing witness instruction in a criminal case where the defense fails to call logical witnesses. State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991).
The State may point out the absence of a `natural witness' when it appears reasonable that the witness is under the defendant's control or peculiarly available to the defendant and the defendant would not have failed to produce the witness unless the testimony were unfavorable.
State v. Montgomery, 163 Wn.2d 577, 598, 183 P.3d 267 (2008) (quoting State v. Blair, 117 Wn.2d at 485-86).
A missing witness instruction does not necessarily shift the burden of proof and the State may argue this inference to the jury. Montgomery, 163 Wn.2d at 598; Blair, 117 Wn.2d at 491. A missing witness instruction permits the jury to scrutinize the defendant's theory of the case just as it does the prosecution's theory. Montgomery, 163 Wn.2d at 598; Blair, 117 Wn.2d at 487-88. This court will not disturb the trial court's decision about whether to give a missing witness instruction absent a clear showing of an abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998).
Blair illustrates when the missing witness inference is permissible. The police arrested the defendant Blair for unlawful delivery of a controlled substance. Blair, 117 Wn.2d at 481. While executing a warrant to search Blair's home, officers found slips of paper with handwritten names and notations that appeared to represent his drug transactions. Blair, 117 Wn.2d at 482-83, 490.
Blair testified that most of the entries represented personal loans or money won playing cards, but called only one witness listed on the slips of paper to corroborate his claim. Blair, 117 Wn.2d at 482-83. In closing, the State pointed out that there were numerous people listed on the ledgers and Blair only called one witness to corroborate his claim that the notations were gambling debts. Blair, 117 Wn.2d at 483.
On appeal, Blair argued the prosecutor committed misconduct by commenting on his failure to call other witnesses about the notations. Blair, 117 Wn.2d at 481. The Washington Supreme Court disagreed. The court held the comments did not impermissibly infringe on the defendant's constitutional rights or shift the burden of proof because the witnesses were all personal and business acquaintances known only to Blair, listed solely by first name, and were peculiarly available to him. Blair, 117 Wn.2d at 490-92. The court further stated that a prosecutor may comment on the defendant's failure to call a witness whose production is within the control of the defense, the testimony would corroborate defense theory, and the testimony is not privileged, self-incriminating, or cumulative. Blair, 117 Wn.2d at 488-90.
By contrast, in Montgomery, the court held that the trial court erred in giving a missing witness instruction. Montgomery, 163 Wn.2d at 599. In Montgomery, the police arrested the defendant for possession of pseudoephedrine with intent to manufacture methamphetamine. Although the defendant had purchased ingredients used to manufacture methamphetamine, he gave innocent reasons for doing so. Montgomery, 163 Wn.2d at 584-85, 587. The defendant said that both his grandson and his landlord could corroborate his explanation. Neither the grandson nor the landlord testified. Montgomery, 163 Wn.2d at 596-97. On cross examination, the State questioned the defendant extensively about why the grandson did not testify. The defendant and his daughter testified that the grandson was in school. Montgomery, 163 Wn.2d at 597.
On appeal, the court ruled that giving the missing witness jury instruction was improper because the defendant adequately explained why his 14 year-old grandson failed to testify and the landlord was not peculiarly within the defendant's control. Montgomery, 163 Wn.2d at 599. The court held the State is only entitled to argue the missing witness inference if: (1) the missing witness is not equally available to the State; (2) the defendant does not satisfactorily explain the witness's absence; (3) the inference would not infringe on the defendant's constitutional right to silence or shift the burden of proof; and (4) the witness's testimony would be material and not cumulative. Montgomery, 163 Wn.2d at 598-99; see also Blair, 117 Wn.2d at 488-91.
There was no indication that, as here, the State lacked information to identify or locate the witnesses.
Here, the court ruled that the cousins "clearly were close to the defendant" and it was a "reasonable inference" that Hassan knew the witnesses and "would have information to assist in locating them." The court decided to give the missing witness instruction because the cousins were "peculiarly available to the defendant" and the defense had not sufficiently explained their absence.
Hassan asserts that the decision to give the missing witness instruction was improper because the cousins were not "natural" or "logical" witnesses and their testimony would not have been relevant. Contrary to Hassan's assertion, the evidence at trial showed that the testimony of the cousins would have been both material and relevant.
Hassan's theory at trial was that he was misidentified as the shooter and he could not have fired the shots based on the timing of his encounter with Eduardo Nicio. Hassan's theory of misidentification was also based on his assertion that there were at least three, and possibly as many as ten other black males near the scene of the shooting. Regarding timing, Hassan argued that it would have been impossible for him to have been at the location of the shooting and at the stairs leading to the apartment when he encountered Nicio.
But according to the testimony at trial, because one or both of the cousins was present when the shooting occurred, their testimony would have been highly relevant to Hassan's defense that he was misidentified. And because one or both of the cousins were also involved in the incident with Nicio, it is likely that their testimony about timing, particularly when the shots were fired and where and when they saw Hassan relative to the time of the shooting, would have been material and relevant.
Citing State v. Gregory, 158 Wn.2d 759, 845-46, 147 P.3d 1201 (2006), Hassan also asserts that the cousins' testimony was potentially incriminating and therefore, the missing witness inference could not be invoked. In Gregory, the defendant claimed that the decedent's former boyfriend Mike Barth committed the murder. In closing, the prosecutor argued that the defendant did not call Barth to testify at trial. Gregory, 158 Wn.2d at 777, 845. The court held that the prosecutor's argument was improper and the missing witness doctrine did not apply because Barth's testimony would be necessarily incriminating. Gregory, 158 Wn.2d at 846.
In Gregory, although the remarks were improper, the court concluded that the remarks did not prejudice Gregory, and Gregory's prosecutorial misconduct claim failed. Gregory, 158 Wn.2d at 846. The court also pointed out that Gregory did not request a curative instruction "which could easily have reminded the jury of the proper burden of proof." Gregory, 158 Wn.2d at 846.
Here, unlike in Gregory, the record does not establish that the cousins' testimony would have been necessarily self-incriminating. While according to the testimony of most of the victims that one or both of the cousins was present when the shooting occurred, no one testified that either of the cousins were responsible for the shooting. And as in Blair, and unlike in Montgomery, the identities of the cousins were known only to Hassan.
This case is also not like the other case cited by Hassan, State v. Dixon, 150 Wn. App. 46, 207 P.3d 459 (2009), where the only evidence of a relationship between the defendant and the missing witness was the police officer's "testimony that he `gathered' the passenger to be Dixon's friend." Dixon, 150 Wn. App at 55. Here, Hassan referred to the witnesses as "cousins," numerous witnesses corroborated that Hassan and the cousins were together the night of the shooting, and at least one witness had seen Hassan with the cousins previously. We conclude the trial court did not abuse its discretion in giving the missing witness instruction.
But even if the missing witness jury instruction was not warranted, we conclude it was harmless beyond a reasonable doubt. To determine whether constitutional error is harmless, "the appellate court looks only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt." State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).
Here, all six of the victims independently and consistently identified Hassan as the shooter. One of the victims also identified Hassan by name. There was no dispute that they had been with Hassan earlier that evening and some of the victims had previously met him. The testimony of the other witnesses also corroborated the account of the victims. And during closing argument, the State did not focus on the missing witness inference. Overwhelming, untainted evidence supports the jury's finding of guilt.
In his brief on appeal, Hassan challenged the to-convict instruction and the instruction defining the elements of the firearm enhancement. He also raised a double jeopardy claim based on the firearm element as an element of the crime and a basis for the firearm enhancement. Because Hassan proposed the challenged instructions below and because his double jeopardy claim is controlled by State v. Aguirre, 168 Wn.2d 350, 366-67, 229 P.3d 669 (2010), Hassan has withdrawn these claims and we do not address them.
We affirm.
WE CONCUR: