Opinion
No. 60790-1-I.
March 30, 2009.
Appeal from a judgment of the Superior Court for King County, No. 05-1-11021-6, James D. Cayce, J., entered November 6, 2007.
Affirmed by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Grosse, J.
UNPUBLISHED OPINION
Jason Porter appeals his convictions for first degree attempted murder, second degree murder, and first degree unlawful possession of a firearm. He argues that he is entitled to a new trial or dismissal because of discovery violations and prosecutorial misconduct. Alternatively, he contends there is insufficient evidence to support the second degree murder conviction. We reject these arguments and affirm Porter's convictions because he fails to establish prejudice from the alleged misconduct and because substantial evidence supports the convictions.
FACTS
At 12:43 a.m. on August 27, 2005, Federal Way Police Officer Shawn Swanson responded to a 911 call about a shooting at the Steel Lake Court Apartments. When he arrived at the apartment complex, he found Shacon Barbee lying in a hallway and bleeding heavily. Barbee had been shot several times, including in his jaw. Although he received emergency medical treatment, he was unable to speak with investigators for several days.
A trail of blood led police from where they found Barbee to a car that was idling in the complex's parking lot. The driver's side door was ajar and covered in blood. Police soon discovered that the car was Melanie Vincent's. Four days later, Vincent's body was found on a brushy embankment near Tacoma. She had been stabbed to death. The medical examiner testified that it would have taken approximately five minutes for her to die from the stab wounds.
Eventually, Barbee was able to talk to the police about what had happened. He said that Porter had shot Vincent in Porter's room at the East Wind Motel. Detectives then learned that fires had been set at the motel on September 1, 2005, which was the day after Vincent's body was found and the day that Porter checked out of the motel. The deputy fire marshal's investigation revealed that fires had been set both inside Porter's room and just outside the door. The fire inside was concentrated on the wood subflooring where someone had cut away some of the carpet. Forensic testing of the area revealed a DNA (deoxyribonucleic acid) match with Vincent's blood. The motel's house cleaner noted that several days prior to the fire, Porter had asked her for a complete set of new bedding. She also testified that Porter associated almost every day with the occupant of room 126, Tracy Lee, who the motel manager suspected was involved in setting the fires.
Detectives were able to obtain a digital video recording from the motel's video surveillance system. The video showed Barbee and Vincent pulling into the motel's parking lot at 9:32 p.m. on August 26, 2005. Barbee left with Vincent's car, and Vincent stayed at the motel with Porter. Barbee returned shortly after midnight, and Vincent retrieved a bag from the car at 12:09 a.m. Ten minutes later, the video showed Porter in the motel office for 25 to 30 seconds. The motel manager testified that Porter had asked her if she had heard someone's car tire pop, but that she had not. At 12:31 a.m., Barbee and Porter left the motel with Barbee driving Vincent's car. Barbee was wearing the same white shirt, but Porter had put on a new shirt. The video also showed that Porter continued paying for the room until he checked out on September 1 and that Lee was with him in the office when he paid on August 27.
The video times displayed by the computer's recording system were apparently 15 minutes fast, but this fact does not affect any of the issues raised here.
At trial, both parties agreed that Vincent was murdered between 12:09 a.m. and 12:31 a.m. on August 27, 2005.
In late September 2005, the State charged Jason Porter with murdering Melanie Vincent and attempting to murder Shacon Barbee. Detectives obtained an arrest warrant and bail was set at one million dollars. By this time however, Porter was in Alaska using the alias "Calvin Dunbar." On November 12, 2005, Anchorage Police Officer Michael Wilson arrested Porter for drug possession and providing false information. Officer Wilson testified that Porter gave him two false names and appeared to be extremely nervous. Porter attempted to escape on foot, but Officer Wilson caught him after a brief chase. Officer Wilson testified that Porter asked him, "so what's my bail, a million bucks?" Verbatim Report of Proceedings (VRP) (Aug. 20, 2007 a.m.) at 161. Detectives from the Federal Way Police Department interviewed Porter in Alaska. Detective William Shockley testified that Porter denied being at the East Wind Motel on August 26, 2005, and became defensive when told about the video showing him at the motel on that date.
Prior to trial, Porter moved for dismissal based on the State's handling of the surveillance video evidence. Porter argued that the State had failed to timely produce the video evidence in discovery. The State responded that eight months before trial, it had provided the defense with a copy of the surveillance hard drive that was identical to its own. Porter's counsel conceded that he had received the cloned hard drive, but noted that he was having trouble viewing the video because of technological problems and that he had only seen video from August 26 and 27. The court denied Porter's dismissal motion, but at one point also stated that the State should give advance notice before using video other than from August 26 and 27.
At trial, Barbee testified that Porter had pulled out a gun and tried to rob him when he entered Porter's room shortly after midnight on August 27. According to Barbee, Porter wanted to go to Barbee's residence, but Vincent would not tell Porter where Barbee lived. Barbee testified that Porter shot Vincent in the chest after she refused to reveal this information. Porter briefly left the room. When he returned, Porter ordered Barbee to help clean up the blood and take Vincent's body to the bathroom in a sheet or comforter. The two left the motel in Vincent's car, with Barbee driving. Barbee claimed that Porter called someone while they were driving and said that he had messed up and killed someone. According to Barbee, he overheard the person on the other end of the line say that Porter had to kill Barbee because "he's a witness." VRP (Aug. 22, 2007 a.m.) at 24. They ended up at the Steel Lake Court Apartments where,
Barbee said, Porter shot him in the face. Barbee said he got out of the car and ran as Porter continued to shoot at him.
Porter testified in his own defense and presented a different version of events. According to Porter, it was Barbee who murdered Vincent and it was a man named "Dustin Pulver" who shot Barbee. Porter testified that Barbee and Vincent began to argue soon after Barbee returned to the motel, which was just after midnight. Porter testified that he stepped out of the room for four or five minutes, and when he returned, Vincent had been killed. Porter claimed that Barbee pulled out a gun and ordered him to help clean up. Porter got blood on his shirt, so he put on a new one. Porter testified that they proceeded to the Silver Lake Court Apartments to meet Pulver. According to Porter, Barbee had inadvertently stolen drugs from Pulver and owed him money. Porter said that Pulver and Barbee began arguing and that when Pulver suddenly shot Barbee, he ran. Porter stated that he and Pulver met later that morning and that Pulver promised to take care of the situation. Porter denied that he ever told the motel manager anything about a tire popping. He denied disposing of Vincent's body, removing the carpet, cleaning up any additional blood, or setting any fires. He also denied asking Officer Wilson if his bail was a million dollars.
Porter called Pulver as a witness. Pulver testified that he shot Barbee in self-defense while the two were fighting over money. Pulver claimed that the shooting occurred near the entrance to the apartment complex, but Detective Shockley testified that the car and blood trail were in a different area of the parking lot. Pulver claimed that he was staying with someone at Steel Lake Court Apartments, but he refused to identify the person. Pulver conceded that Porter's cousin was his best friend and that he had been housed in the same jail unit with Porter for several months. Pulver also acknowledged that he was serving a 16-year sentence for robbery and was facing a 50-year sentence in Oregon.
Porter also planned to call Corey Mason as a witness. Mason was prepared to testify that Barbee had confessed to him while the two were in jail together that "he stabbed [Vincent] and dumped her." Detective Shockley interviewed Mason about his allegations and generated a report that was apparently not disclosed to Porter's counsel until the day before Mason was to testify. The report undermined Mason's credibility. The State timely disclosed other evidence that it intended to use to impeach Mason, including jail records showing that Mason was never housed with Barbee but that he was housed with Porter for several weeks just before he submitted his declaration to Porter's attorney. Porter's attorney did not request a mistrial, a recess, or any sanction based on the late disclosure of Detective Shockley's report, and he decided not to call Mason.
The prosecutor explained the situation as follows: "It was provided to my office, Your Honor, and my practice, when I receive them, [is to] give them directly to my paralegal with instructions to provide them to defense.
Now, in this case some things were Bates stamp numbered and generated, and some things weren't. We had a transition between paralegals in this case, so whether this was numbered and provided, I don't know. I have to assume that it was provided because both paralegals working on this case are quite professional. . . .
But it's — of course, it's certainly possible that he hadn't seen it before." VRP (Aug. 28, 2007) at 6.
The report itself is not part of the record on appeal.
After a two-week trial, the jury convicted Porter of first degree attempted murder and second degree murder. Porter moved for a new trial in part based on the State's failure to timely disclose Detective Shockley's report. Porter also sought a new trial based on the State's use of surveillance video clips in its rebuttal closing argument. Specifically, Porter objected to video showing Porter and Lee in the office together because the State had not shown the same video during the trial's evidentiary phase. The court denied the new trial motion and sentenced Porter at the high end of the standard range. Porter now appeals.
Porter was also convicted of first degree unlawful possession of a firearm in a bench trial.
ANALYSIS
Corey Mason Report
Porter argues that the trial court erred in denying his new trial motion. He contends that the late disclosure of Detective Shockley's report amounted to prosecutorial misconduct that denied him his right to a fair trial. A trial court may grant a new trial to a criminal defendant "when it affirmatively appears that a substantial right of the defendant was materially affected" by "[m]isconduct of the prosecution or jury." CrR 7.5(a)(2). But a new trial is only appropriate if the defendant "`has been so prejudiced that nothing short of a new trial can [e]nsure that the defendant will be tried fairly.'" State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994) (quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986). The trial court is in the best position to determine if a defendant has suffered actual prejudice, and its decision to deny a new trial is reviewed for a manifest abuse of discretion. State v. Sandoval, 137 Wn. App. 532, 541, 154 P.3d 271 (2007); State v. Dawkins, 71 Wn. App. 902, 906, 863 P.2d 124 (1993). An abuse of discretion will only be found "when no reasonable judge would have reached the same conclusion." State v. Johnson, 125 Wn. App. 443, 460, 105 P.3d 85 (2005).
Here, Porter argues that the trial court abused its discretion because "the prosecutor committed flagrant and intentional misconduct by withholding discovery until the last minute" and that the late disclosure was a "perversion of justice" that materially and substantially prejudiced his right to a fair trial. Appellant's Br. at 19 and Reply Br. at 1. The State concedes that the late disclosure was a discovery violation, but it contends that there was no "flagrant and intentional" misconduct and that Porter failed to show that he was materially prejudiced. "When deciding a motion for a new trial based on claims of prosecutorial misconduct, the trial court applies the same standard as an appellate court reviewing such claims." State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
To obtain reversal of a conviction based on prosecutorial misconduct, a defendant must show the prosecutor's conduct was improper and that it had prejudicial effect. State v. Munguia, 107 Wn. App. 328, 336, 26 P.3d 1017 (2001). "Prejudice is established by showing a substantial likelihood that the misconduct affected the jury's verdict." Id. Where, as here, a defendant does not immediately object to the alleged misconduct or move for a mistrial, the issue is waived unless the misconduct was so flagrant and ill intentioned it resulted in enduring prejudice that the court could not have neutralized even if the defendant had timely raised the issue. State v. Dhaliwal, 113 Wn. App. 226, 241, 53 P.3d 65 (2002), aff'd, 150 Wn.2d 559, 79 P.3d 432 (2003).
Porter contends he was severely prejudiced by the late disclosure because the State led him to believe that Mason's testimony would be unimpeached. Appellant's Reply Br. at 1. The record belies this argument. The State gave clear notice it would impeach Mason's testimony with evidence that Mason and Barbee were never housed together in jail. In contrast, jail records showed that Mason and Porter were housed together in the same jail unit and would have had ample opportunity to coordinate their testimony. Indeed, Mason provided his initial declaration to Porter's attorney soon after spending several weeks with Porter.
At oral argument, Porter conceded that the State had timely provided this impeachment evidence, but he attempted to minimize it as "normal impeachment" evidence about "small inconsistencies." However, we view this evidence — which strongly suggested that Mason was never in a position to receive Barbee's purported confession — as highly persuasive impeachment evidence. We also note that the credibility of Mason's statement was already in doubt because Barbee could not have "dumped" Vincent's body given the undisputed fact that he was in the hospital at the time. Finally, we reject Porter's argument that he was prejudiced because there was insufficient time to investigate the report, requiring him to withdraw Mason's testimony. Porter's attorney spoke with Mason about the report and could have requested a recess to investigate further if he thought it useful. Instead, he made a tactical decision not to call Mason as a witness. There is nothing in the record to suggest that Porter would have chosen to call Mason if the State's disclosure had been timely.
Given this record, the trial court did not err in denying Porter's motion for a new trial because of the State's discovery violation. The State's late disclosure of Detective Shockley's report was not flagrant and ill intentioned misconduct that caused enduring prejudice.
Motel Surveillance Videos
Porter also argues that the trial court erred in denying his pretrial motion to dismiss, which was based partly on the State's alleged failure to timely provide him the surveillance video evidence from the East Wind Motel. Porter contends that he was entitled to dismissal under both CrR 4.7 and CrR 8.3. Dismissal under either rule is an extraordinary remedy available only when the defendant establishes that his or her right to a fair trial has been materially prejudiced by the State's actions. State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996); State v. Flinn, 119 Wn. App. 232, 247-48, 80 P.3d 171 (2003). The trial court's decision will not be disturbed absent an abuse of discretion. Id.
Here, Porter's dismissal argument is premised on his assertion that the State failed to timely provide him with its surveillance video evidence. But the record shows that eight months before trial, the State provided Porter's attorney with a cloned copy of the surveillance hard drive it obtained from the motel. While Porter's counsel asserted at oral argument that the hard drive was "defective," the record establishes that it was an identical copy of the hard drive used by the State at trial. It appears from the trial transcript that Porter's trial counsel had difficulty accessing the hard drive's content for technological reasons. The State made its video specialist available to the defense's initial investigator, but the investigator never contacted the specialist. The record indicates that when Porter retained a new defense investigator, that investigator was able to open the hard drive after a brief conversation with the State's video specialist. Thus, it appears that the delay was due to the initial defense investigator's failure to timely contact the State's video specialist. This does not constitute government misconduct or a discovery rule violation that would justify the extraordinary remedy of dismissal. Consequently, the trial court did not abuse its discretion in denying the motion.
The prosecutor explained the situation as follows: "In June, I believe it was June, Mr. Connick changed investigators and hired Bryson Alden, that is the investigator that I've been working with the entire time I've been back into this case. It took maybe a five-minute conversation, if that, that I witnessed between Mr. Alden, who apparently is quite computer savvy and knowledgeable, and Detective Laird for Mr. Alden to know what needed to be done to open it. I talked to him a couple hours later, this was on June 18th, and he said that it had in fact been opened, that the computer expert hired by the defense was able to open it, and all of the images, as we had said, were on the hard drive." VRP (Aug. 7, 2007) at 15-16. Porter points to nothing in the record that contradicts this statement.
In addition to his argument about the production of video evidence generally, Porter also contends that the prosecutor violated an August 6, 2007 discovery order by showing video clips in closing rebuttal argument from after August 27, 2005. He argues that this prejudiced him because the State used these videos to associate him with Lee, who was suspected of setting the motel fires to cover up evidence of the murder. But the record indicates that only one of the clips showed Porter with Lee and that clip was from August 27, a period not covered by the trial court's order. Additionally, the motel's house cleaner had already testified that Porter associated with Lee "[a]lmost every day," so the video clip was cumulative of other evidence that was admitted without objection. VRP (Aug. 21, 2007) at 41. Porter fails to establish that he was prejudiced, so we reject his argument for dismissal.
On August 6, 2007 — before the parties explained the full history of the discovery problems associated with the surveillance tape — the trial court orally stated that the State should give advance notice before using video other than from August 26, 2005, or August 27, 2005.
Sufficiency of the Evidence
As an alternative argument, Porter contends that the State failed to present sufficient evidence to support his conviction for second degree murder. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it could permit any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000). All reasonable inferences from the evidence are drawn in favor of the State, and an appellate court defers to a jury's resolution of conflicting testimony and witness credibility determinations. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996). When determining whether sufficient evidence supports a conviction, circumstantial evidence is no less reliable than direct evidence. State v. Meyers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
Here, there is ample evidence to support Porter's conviction for murdering Vincent. Barbee testified that Porter killed Vincent in Porter's motel room. Forensic testing showed a DNA match between Vincent's blood and samples from an area of the wood flooring in the room. The deputy fire marshal testified that someone had removed a section of carpet and set fire to the same area of the floor. Barbee testified that Vincent's body was wrapped in a sheet or comforter after the murder, and the motel's house cleaner testified that Porter had asked her for a complete set of new bedding around the same time. After the murder, the motel's surveillance video showed Barbee and Porter leaving the motel at the same time; Barbee was wearing the same white shirt, but Porter had put on a new shirt. Porter denied disposing of Vincent's body or removing the carpet. He also denied ever talking with the motel manager about a tire blowing up or asking Officer Wilson if his bail was a million dollars. The jury could have reasonably concluded that Barbee's story was credible, Porter's story was not, and that Porter had killed Vincent.
Porter further argues that the evidence is insufficient because Barbee was a key witness and he incorrectly testified that Porter shot Vincent. But the jury could have reasonably concluded that Barbee was confused about the method of killing while still finding his testimony credible. There was some evidence that a gun may have been fired in Porter's room that night. For example, the motel manager testified that Porter asked her about a tire popping around the time of the murder, suggesting that he may have been trying to explain away a gunshot. Moreover, Barbee himself was shot soon after Vincent was killed, and the jury could have reasonably concluded that this affected his memory of the event. In addition to Barbee's testimony, the State's case relied on physical evidence and the testimony of other witnesses. Considering all the evidence in the record, there is sufficient evidence to sustain the conviction.
Pro Se Arguments
In a pro se statement of additional grounds, Porter makes two additional arguments for reversal of the judgment against him. First, he contends that his right to an impartial jury was violated because his jury was not drawn from King County as a whole. He argues that the division of King County into two jury districts is unconstitutional. The Washington Supreme Court recently rejected this argument. See State v. Lanciloti, ___ Wn.2d ___, 201 P.3d 323 (2009).
We also note that Porter fails to put forward a sufficient factual record about how his jury was actually selected. The court's comment that a new system of jury selection "might" be implemented and the prosecutor's comment that due to I-5 construction, the jury would "probably" end up being a southend jury, are all that he cites in the record.
Second, he contends that remarks in the prosecutor's closing arguments constituted misconduct that denied him his right to a fair trial. In closing argument, a prosecutor has wide latitude to argue based on reasonable inferences from the evidence and to respond to the defense's arguments. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997); Russell, 125 Wn.2d at 86. Here, the prosecutor criticized the defense's argument as essentially a conspiracy theory in which the State's witnesses were lying while Porter was telling the truth. Because Porter's counsel did not object to the conspiracy comments as improper, any error is waived unless the comments were so flagrant and ill intentioned that they resulted in enduring prejudice that could not have been cured by an instruction. State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006). Given the strength of the State's case, Porter fails to make this showing.
Porter's attorney did raise an objection shortly before the prosecutor began characterizing the defense argument as a conspiracy theory, but the basis of the objection was entirely different.
Affirmed.