Opinion
No. 29702-7-II.
Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 00-1-00513-1. Judgment or order under review. Date filed: 10/15/2002.
Counsel for Appellant(s), Carol J Cooper, Davies Pearson PC, 920 Fawcett, PO Box 1657, Tacoma, WA 98401-1657.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
A jury convicted Vy La Le of first degree assault with a deadly weapon enhancement, second degree malicious mischief, and bail jumping. Le challenges these convictions, arguing that: (1) he received ineffective assistance of counsel because his counsel failed to challenge a potentially biased juror, move to exclude hearsay, or object to testimony for lack of foundation; (2) the prosecutor committed prejudicial misconduct; and (3) there was insufficient evidence to convict him on the first degree assault with a deadly weapon or second degree malicious mischief. In his statement of additional grounds, Le further contends that: (1) the identification procedures used in this case were so unnecessarily suggestive that he was deprived due process; and (2) cumulative errors require reversal. We affirm.
FACTS
This case stems from an assault on Leslie Calvert. There are differing accounts of the assault, but the parties generally agree that on the day of the assault Calvert parked his car across from the 38th Street Tavern in Tacoma, encountered three or four Asian males, a scuffle ensued, and Calvert punched one of the men. One young man punched Calvert in the back of the head, nearly knocking him over, and the men proceeded to severely beat him. After Calvert was able to get away, the assailants smashed the windows of his Cadillac with various objects. Calvert suffered a broken cheekbone and was taken to the hospital.
In an amended information, the State charged Le with first degree assault with a deadly weapon, second degree malicious mischief, and bail jumping. The case went to trial almost three years later.
The original information charged second degree assault with a deadly weapon and second degree malicious mischief. The assault charge was upgraded based on Calvert's statements to the prosecutor regarding his ongoing medical problems, and the State added the bail jumping charge after Le failed to appear at a hearing.
During voir dire, the court asked the jurors if they had had any experience with a 'violent act.' Juror 29 responded that his wife and two daughters had been 'killed' 17 years before in North Carolina. Defense counsel later asked if any jurors who had experience with violent acts could not act impartially or would let their sympathy override their decision; juror 29 did not answer yes to either of these questions. Defense counsel did not challenge juror 29 for cause or use a peremptory challenge.
Defense counsel also filed a motion in limine concerning the State's opening statement; the trial court granted the motion on six of the seven points raised, reserving ruling on the scope of Calvert's testimony about his medical conditions. The motion did not seek to exclude any hearsay testimony. During opening statements, the prosecutor described the scene and stated: 'Another gentleman, who will not testify, is not around, was also there.' II Report of Proceedings (RP) at 51. Defense counsel did not object to this statement.
At trial, a number of witnesses testified to the events surrounding the assault. First, Jib Cheshier, Calvert's roommate and tenant, testified. Cheshier witnessed the assault from the 38th Street Tavern. Cheshier saw Calvert park his car across the street. Cheshier saw Calvert exchange words with three individuals and appeared to flip them off. One of the men, who Cheshier identified as Le, punched Calvert in the back of the head, nearly knocking him down, and Calvert turned around and hit Le. According to Cheshier, the three continued to beat Calvert with various objects. Cheshier testified that he and another bar patron, Dean Carlos, went across the street to help Calvert. Cheshier and Carlos fended off the attackers and brought Calvert back to the tavern.
Cheshier said that Le, armed with a two-by-four, followed Calvert across the street to the tavern. Carlos would not let Le in, and Cheshier saw Le and the two other assailants go back across the street and smash the windows of Calvert's Cadillac. Cheshier testified that the three used two-by-fours, rocks, and a pipe to smash Calvert's car windows.
Cheshier identified two of the assailants at the scene, David and Thahn Nguyen, who were later convicted. Cheshier testified that he had earlier mistakenly identified another person as one of the assailants because he was wearing clothing similar to Le. Cheshier identified Le when the police later brought him to the 38th Street Tavern. Cheshier could not remember the name of the officer that brought Le to the tavern for identification, and none of the officers that testified remembers being the one who brought Le to Cheshier.
Calvert then testified. He testified that he suffered from a number of physical ailments, including short- and long-term memory loss, hearing loss, and deteriorating eyesight. He testified that he had mistakenly called out 'Hey, Hoser,' his nickname for Cheshier, when he got out of his car across the street from the tavern. II RP at 92. An Asian man approached and swung at Calvert several times, but Calvert blocked one of the punches and hit the man in the face to let him know that he would not tolerate this behavior. Calvert did not think that Le was the person he punched. Calvert then experienced a blow to the back of the head and began to lose consciousness. He testified that he tried to make his way across the street and was struck by two vehicles.
Cheryl Jennings testified that she witnessed the assault from neighboring Frisbee's Bakery. The police took Jennings into a nearby restaurant and bar, where she recognized Le, but was frightened because 30 to 40 patrons in the establishment 'were all glaring' at her. III RP at 166. She did not identify Le for the police because she was afraid. Jennings quit her job at Frisbee's that day. At trial, Jennings identified Le as being involved in the assault; she testified that Le had been kicking Calvert while he was down, but that she did not witness the attack on Calvert's car.
Officer Dan Morris also testified. He had a strained recollection of the events and relied primarily on his incident report. Morris testified that two suspects, David and Thanh Nguyen, were identified at the scene, and that David's lip was bloodied as if it had been punched. Morris testified that Thuy 'Mary' Nguyen described one of the assailants as 'an Asian male of about 18 years of age, about 5'4', slight build, with slicked-back black hair,' named 'Vy or Vee.' II RP at 125. Morris said that one other individual was identified at the scene, but that members of the community said he was not involved in the assault. According to Morris, these community members refused to give their names in fear of retaliation.
Dr. Robert Livingston testified regarding Calvert's injuries, confirming that Calvert had suffered a three-point, or tripod, fracture to his cheek. He could not confirm the cause of the injury.
Hank Baarslag, a forensic specialist employed with the Tacoma Police Department for 22 years, testified that he recovered pieces of a two-by-four from the parking lot near Calvert's car. After examining the pieces, Baarslag found two of Le's fingerprints on the wood.
Finally, Le testified. He said that, although he was at the scene, he was not involved in the assault or smashing Calvert's car windows. He said he heard a commotion and went outside to find 'four Asian males . . . having contact' with Calvert. IV RP at 234. Le knew David and Thanh Nguyen, but he testified that they were not friends of his and that they did not hang out together.
Le said he observed only one of the individuals hit Calvert's car with a piece of wood, which broke into pieces, and a rock. He said he picked up the piece of the two-by-four out of curiosity; he was surprised that the wood, not the window glass, would shatter. Le denied being in the pool hall when the police brought Jennings in for identification.
During closing, the prosecutor said: 'Again, both Cheryl Jennings, who was obviously not comfortable being here, not comfortable identifying the defendant, was afraid, as many people were afraid in this case, people that didn't want to come forward.' V RP at 283-84. Defense counsel objected to this statement.
The jury convicted Le on all counts, and found in a special verdict that he was armed with a deadly weapon the two-by-four when committing the assault. The court sentenced Le to 184 months on Count I, six months on Count II, and 12 months on Count III, with a 24-month deadly weapon enhancement, all to run concurrently. This timely appeal follows.
ANALYSIS I. Ineffective Assistance of Counsel
Le first argues that he received ineffective assistance of counsel because his attorney failed to: (1) challenge a juror who informed the court that his wife and daughters had been murdered; (2) question jurors post-trial to determine if juror 29's experience improperly influenced deliberations; (3) file a motion in limine excluding hearsay testimony; and (4) object to an eyewitness's testimony for lack of foundation or, in the alternative, cross-examine the witness regarding her inability to identify the appellant until trial.
A. Standard of Review
The Washington State and United States Constitutions guarantee a criminal defendant the right to effective assistance of counsel. Const. art. I, sec. 22; U.S. Const. amend. VI, sec. 1. The test for ineffective assistance of counsel has two parts. One, it must be shown that the defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, it must be shown that such conduct prejudiced the defendant, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have been different. State v. Thomas, 109 Wn.2d 222, 226-27, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
In reviewing this type of challenge, we must presume that the assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122, review denied, 105 Wn.2d 1013 (1986). 'Because the presumption runs in favor of effective representation, the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.' State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
We find that Le cannot satisfy the two-prong test for ineffective assistance of counsel on any of his claims.
B. Juror 29
Le argues that trial counsel's failure to challenge juror 29, because his wife and daughters had been murdered 17 years earlier in North Carolina, prejudiced his case. Assuming, without deciding, that this failure to challenge juror 29 fell below an objectively standard of reasonableness, Le cannot show that the failure to challenge the juror prejudiced his case. Trial counsel did question the jurors, albeit collectively, to confirm that they would be impartial, asking them under oath: (1) whether any of the jurors would not be able to fairly try the case because of their own past experiences with violent acts; and (2) whether the jurors would limit themselves to evaluating the facts of the case, not letting sympathy or emotion override their judgment. Juror 29 did not respond to either question with an answer indicating bias or lack of impartiality.
This case is similar to State v. Alires, 92 Wn. App. 931, 966 P.2d 935 (1998), in which Division Three found no ineffective assistance of counsel for failure to challenge impaneled jurors' bias against Hispanics. During voir dire, defense counsel for a Hispanic defendant asked the potential jurors if any of them believed Hispanics were more likely to commit crime in their area than other people. Alires, 92 Wn. App. at 936. Counsel then asked those jurors collectively whether they would be unable to base their decision solely on the evidence rather than any preconceived notions about Hispanics, and none raised their hand Alires, 92 Wn. App. at 934, 938. Counsel inquired no further about these jurors' beliefs about Hispanics. The court held that the jurors did not exhibit the 'clear prejudice' necessary to show they could not have decided the case impartially. Alires, 92 Wn. App. at 938-39. The court stated that these jurors 'can be characterized as jurors with preconceived ideas who need not be disqualified if they can put these notions aside and decide the case on the basis of the evidence given at trial.' Alires, 92 Wn. App. at 939.
In the present case, juror 29 did not say that he had any bias towards a person charged with a violent crime, only that he had experience with violent acts. This does not rise to the level of 'clear prejudice' necessary to show ineffective assistance of counsel for failure to challenge. And in spite of juror 29's disclosure regarding the loss of his wife and daughter, trial counsel sufficiently confirmed that juror 29 could fairly evaluate the evidence. Accordingly, Le fails to show that his trial counsel's failure to individually question juror 29 affected the outcome of the trial and thus cannot show prejudice.
Moreover, after the trial court questioned the jury about its individual experiences, including violent acts, it also asked the jurors collectively if any of them had 'concerns or feelings such that they don't think they could be fair to both sides,' and no juror, including juror 29, indicated that they could not be fair. Supp. RP at 20.
C. Failure to Question Jurors Post-trial
Le also alleges that trial counsel was deficient for failing to question jurors post-trial to determine if juror 29's personal experience influenced their decision, thus prejudicing the outcome of the trial. As the State notes, what trial counsel may have or have not done after the close of trial and outside of the record is not a matter properly raised in this appeal. See McFarland, 127 Wn.2d at 335 (court will not consider matters outside of the record on direct appeal).
D. Failure to File Motion in Limine
Le next claims that trial counsel was ineffective for failing to file a motion in limine to exclude all hearsay testimony related to hearsay identifications of Le or any of Calvert's other potential assailants. The State introduced through Morris the statements of Thuy 'Mary' Nguyen, which described one of the suspects and identified him as 'Vy or Vee.' II RP at 125. Le testified at trial that he had legally changed his name to 'Lavie Joseph Le' in 1998, and that prior to that, he had been known as 'Lavie.' IV RP at 231. Because the defense's theory was misidentification, failure to file a motion in limine to exclude the hearsay testimony that identified the assailant by a different name than Le's could certainly be considered a trial tactic, which cannot form the basis for an ineffective assistance of counsel claim.
We also reject Le's argument that trial counsel's failure to move to exclude all other evidence and arguments related to hearsay testimony regarding the identification of Calvert's assailants prejudiced him. Even if counsel should have moved to exclude these statements, this oversight was harmless. First, Morris made only a single, isolated reference to members of the community who were afraid to come forward in fear of retaliation. And these community members had made statements about only the misidentified suspect, not Le. Further, Le does not dispute that another individual was misidentified as a suspect; he actually focuses heavily on this fact to cast doubt on Cheshier's credibility. Thus, Le cannot show that this testimony prejudiced the outcome of his trial.
Finally, counsel's failure to exclude any reference to these statements in argument was similarly harmless. While counsel did not file a motion in limine to limit the prosecutor's statements, she immediately objected to the prosecutor's comment in closing arguments that there were many people in this case who had identification information and were afraid to come forward. The judge promptly informed counsel that he would instruct the jury to consider only the evidence and not the prosecutor's arguments. Thus, any potential effects of the failure to move in limine to exclude Morris' or the prosecutor's statements were harmless, and Le cannot satisfy the prejudice prong on this claim.
E. Jennings' Testimony
Le challenges counsel's failure to object to Jennings' testimony for lack of foundation, and to 'vigorously' cross-examine Jennings regarding her inability to identify Le prior to trial.
First, counsel likely made the tactical decision not to object to Jennings' testimony for lack of foundation under ER 602 because such an objection would have been unsuccessful. The record is clear that Jennings was physically present at the scene of the assault and watched the events unfold, establishing her personal knowledge of the incident and rendering any objection to lack of foundation pointless.
ER 602 provides:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony.
Second, counsel's failure to 'vigorously' cross-examine Jennings abut her inability to identify Le prior to trial could also be characterized as a strategic decision. '[W]hether and how much to cross-examine' a witness is generally considered a trial tactic and is not grounds for an ineffective assistance claim. In re Personal Restraint of Stenson, 142 Wn.2d 710, 735, 16 P.3d 1 (2001) (quoting State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967)). Here, trial counsel could have decided not to ask Jennings why she did not come forward sooner, because the likely and extremely damaging answer would be that she was afraid of retaliation from Le. This is not deficient performance.
II. Prosecutorial Misconduct
Le claims that the prosecutor committed reversible misconduct in his opening and closing statements by commenting that there were other witnesses who could identify Le as the assailant but would not testify. Finding no misconduct, we reject Le's claim.
In his opening, the prosecutor stated: 'Another gentleman, who will not testify, is not around, was also there.' II RP at 51. In closing, he stated: 'Again, both Cheryl Jennings, who was obviously not comfortable being here, not comfortable identifying the defendant, was afraid, as many people were afraid in this case, people that didn't want to come forward.' V RP at 283-84.
'Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect.' State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991) (citing State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986)). 'To establish prejudice, the defense must demonstrate there is a substantial likelihood the misconduct affected the jury's verdict.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Le fails to show that the prosecutor's comments affected the outcome of the trial.
Le's counsel objected to the prosecutor's statements in closing but not in opening. When counsel fails to object to an improper argument at trial, the standard of review on appeal is more rigorous than if he had objected; it requires the defendant to show not just that the comments were improper, but that they were '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 Wn.2d 24, 86, 882 P.2d 747 (1994). Because Le cannot show prejudice stemming from either claim, we do not address whether the comment in the prosecutor's opening statement was 'flagrant and ill-intentioned.'
First, the prosecutor did not say in his opening that there was someone who could identify Le as an assailant who would not testify at trial. He simply stated that there was someone else at the scene who was 'not around' and would not testify. This is consistent with Cheshier's testimony at trial that another man, Carlos, was at the scene.
Second, the prosecutor's comments, that Jennings was afraid and so were many people who did not want to come forward, could not have prejudiced the jury because these comments were also supported by the testimony offered at trial. Jennings testified that she was scared to identify Le the night of the assault, and that she quit her job that day out of fear after the incident. And in response to defense counsel's objection in closing, the prosecutor correctly pointed out that Morris had testified that there were people who confirmed that one of the suspects was misidentified but was afraid to come forward in fear of retaliation.
Because the prosecutor's statements were supported by evidence adduced at trial, Le fails to show 'a substantial likelihood the misconduct affected the jury's verdict,' and his claim fails. Brown, 132 Wn.2d at 561.
III. Sufficiency of the Evidence
Le contends that the evidence was insufficient to prove that he assaulted Calvert, used the two-by-four to commit the assault, or that Calvert suffered great bodily injury. We disagree and find that sufficient evidence supports the verdict.
The State carries the burden of proving every element of the crimes charged beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 489, 656 P.2d 1064 (1983). When reviewing a sufficiency of the evidence claim, the court applies a standard of review that is deferential to the jury verdict, drawing all reasonable inferences from the evidence in favor of the State and interpreting the evidence most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). As the State argues, a claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Br. of Respondent at 18 (citing State v. Barrington, 52 Wn. App. 478, 484, 761 P.2d 632 (1988), review denied, 111 Wn.2d 1033 (1989)). We defer to the jury on the credibility of witnesses and the persuasiveness of the evidence. State v. Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999).
A person commits first degree assault pursuant to RCW 9A.36.011 when he, with intent to inflict great bodily harm, assaults another with a deadly weapon. RCW 9A.04.110(4)(c) defines 'great bodily harm' as 'bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ.'
As Le argues, there was conflicting testimony given in this case. But we defer to the jury on the credibility of witnesses and the persuasiveness of the evidence. Bonisisio, 92 Wn. App. at 794. Viewing the evidence in the light most favorable to the State, we conclude that the jury could have believed Cheshier's testimony that Le was involved in the assault, that he was armed with the two-by-four when he went to the tavern to find Calvert, and that Le participated in smashing Calvert's car windows. Cheshier's testimony is supported by Baarslag's testimony that he found two of Le's fingerprints on the splintered two-by-four. Similarly, the jury could have believed Jennings' eyewitness testimony that Le was kicking Calvert during the assault.
Conversely, the jury could have found Le's testimony that he was at the scene, but not involved, incredible. It could also have found similarly unbelievable his explanation that he only picked up the two-by-four to see why it was broken. And although Calvert was the victim, in light of his testimony that he suffers short- and long-term memory loss, the jury could have believed Cheshier's version of events rather than Calvert's.
We conclude that sufficient evidence supports the jury's guilty verdict on the first degree assault charge. We also conclude that there was sufficient evidence to support the deadly weapon enhancement. Cheshier's testimony that Le was armed with the two-by-four immediately after the assault is circumstantial evidence that Le had the two-by-four during the assault. And the court instructed the jury on an accomplice theory, informing them that they could find that Le was armed with the deadly weapon if they concluded that any of the assailants were armed with the board. Based on the testimony at trial, the jury could have concluded beyond a reasonable doubt that Le or one of the other assailants was armed with the two-by-four during the assault.
Instruction No. 18 read:
For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime in Count I.
. . . .
If one person is armed with a deadly weapon, all accomplices are deemed to be so armed, even if only one deadly weapon is involved. Clerk's Papers (CP) at 57.
Finally, we find that there was sufficient evidence for the jury to decide that Calvert suffered great bodily harm. Livingston testified that Calvert's left cheekbone had been fractured. Calvert also testified about his injuries, stating that he suffers from lower back pain, nerve damage to his left shoulder, hearing loss, deterioration of his vision, and short- and long-term memory loss. This evidence is sufficient for the jury to find that Calvert suffered great bodily harm.
We also find that sufficient evidence supported Le's conviction of second degree malicious mischief. Cheshier testified that he witnessed Calvert's three assailants damage Calvert's car using a 25- to 30-pound concrete block, rocks, a pipe, and two-by-fours. When Cheshier last saw Le, Le was 'beating up' on Calvert's car with what Cheshier thought were a two-by-four and a rock. Considering Baarslag's corroborating testimony that Le's fingerprints were on the broken pieces of the two-by-four, we find that there was sufficient evidence to support the jury's guilty verdict on the second degree malicious mischief count.
IV. Statement of Additional Grounds A. Identification Procedures
In his Statement of Additional Grounds, Le again argues insufficient evidence, ineffective assistance of counsel, and prosecutorial misconduct. Counsel's appellant's brief adequately addresses these issues, so we need not consider Le's reiteration of these claims. RAP 10.10(a).
Le's contention that the State used unnecessarily suggestive identification procedures with Jennings that violated Le's due process rights is without merit. All of the cases that Le cites involve pre-trial, out-of-court identification procedures, but there is no indication that any such pre-trial identification attempts occurred here. Here, the only identification attempt was at the scene of the assault, when the officers took Jennings into a restaurant where, unbeknownst to the officers, Le was sitting in the middle of the establishment among 30 or 40 other patrons. Not yet knowing that Le was involved in the assault, it would have been impossible for the officers to employ unnecessarily suggestive identification procedures. 'Where an in-court identification is challenged and there is no issue of impermissibly suggestive procedures, the question of reliability goes only to the weight of the testimony and not its admissibility.' State v. Kinard, 39 Wn. App. 871, 874, 696 P.2d 603, review denied, 103 Wn.2d 1041 (1985). Consequently, the trial court did not err by permitting Jennings to identify Le for the first time in court.
Although Le did not object to this testimony at trial, we will review this claim because the alleged use of impermissibly suggestive identification procedures implicates Le's constitutional right to due process. RAP 2.5(a); see e.g. State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002).
Le cites the following cases involving pre-trial identification procedures to support his claim: Manson v. Brathwaite, 432 U.S. 98, 115, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (photograph); Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (lineup); Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (photograph); State v. Vickers, 107 Wn. App. 960, 966-67, 29 P.3d 752 (2001), aff'd, 148 Wn.2d 91 (2002); State v. Eacret, 94 Wn. App. 282, 285, 971 P.2d 109 (1999) (photomontage); State v. Shea, 85 Wn. App. 56, 59, 930 P.2d 1232 (1997) (showup); State v. Maupin, 63 Wn. App. 887, 896, 822 P.2d 355 (photograph), review denied, 119 Wn.2d 1003 (1992); State v. Hendrix, 50 Wn. App. 510, 513, 749 P.2d 210 (1988) (photograph); State v. Traweek, 43 Wn. App. 99, 103, 715 P.2d 1148 (lineup), review denied, 106 Wn.2d 1007 (1986).
B. Cumulative Error
Finally, Le contends that cumulative error in his case requires reversal. Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors cumulatively produced a trial that was fundamentally unfair. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified, 123 Wn.2d 737, cert. denied sub. nom. Lord v. Washington, 513 U.S. 849 (1994). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. Lord, 123 Wn.2d at 332. Where no prejudicial error is shown to have occurred, cumulative error cannot be said to have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Because we find that Le has failed to show any reversible error, his cumulative error claim fails.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and HOUGHTON, J., concur.