Opinion
No. 34887-0-II.
January 15, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03817-1, Sergio Armijo, J., entered May 19, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Van Deren, JJ.
John Edward Smith appeals his convictions of unlawful methamphetamine manufacture and unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine with school bus route stop enhancements. He argues that numerous trial court errors require that we reverse his conviction and vacate his sentence. We affirm.
FACTS
Smith and Robert Tucker were roommates in a Lakewood mobile home. Tucker's schizophrenia disabled him from working, and Smith served as Tucker's payee for his disability benefits. Debra Burrill was Smith's girl friend.
On April 6, 2005, at about 2:00 a.m., police officers responded to Burrill's call to serve a no-contact order on Tucker at the mobile home. On arriving, the officers learned that Tucker and Smith had fought a couple of days before and that Tucker had hit Smith's head with a dessert glass. Smith had obtained a protection order against Tucker, and Smith and Burrill were now seeking to have the order served on him with a police presence.
As the officers escorted Tucker out, they passed a plastic outdoor-style garbage can sitting in the middle of the kitchen. Tucker flipped the garbage can lid off and said, "this is what you should be worried about." Clerk's Papers (CP) at 38.
The officers observed that the garbage can was about three-quarters full of large glass mayonnaise jars with red and white residue inside them and that the can emitted a strong chemical odor. They believed that they were looking at the remnants of a methamphetamine lab and called in Officer Wurts from the methamphetamine lab team to assist. Wurts determined that it was likely a red phosphorus-type (red P) lab and Smith and Burrill were arrested. Wurts asked Smith about the possibility of red P being in one of the containers, and Smith replied that when he was arrested for manufacturing methamphetamine before he did not use red P.
The officers did not arrest Tucker at this time. He remained outside during the investigation, subject to the no-contact order, and the officers later released him.
In October 1998, Smith pleaded guilty to one count of conspiracy to manufacture methamphetamine, for conspiring with Burrill. In November 2003, he also pleaded guilty to a third degree theft charge for stealing items from Albertson's.
In addition to the garbage can, police found glass smoking pipes, a gallon ice cream container with rock salt, Brakeleen brake fluid bottles, a plastic bag containing smaller baggies with methamphetamine residue, plastic tubing, a drawer full of matchbooks, a prescription bottle full of liquid pseudoephedrine, additional glass jars with residue, a hot plate, several bottles of isopropyl alcohol, stacks of coffee filters, a large box of matchbook covers missing the striker plates, five boxes of Wal-Act cold medicine, an unopened pack of Sudafed, boxes of other different types of cold and allergy relief medicine, bottles of HEET, tincture iodine with gloves, a container of syringes and glass pipes, a piece of Y-shaped glassware, a siphon pump, and a container of pure crystallized caffeine.
The officers also took fingerprint samples from some of the items, later matching the prints with Smith's. When jail personnel searched Burrill, they found a bag of methamphetamine in her bra. Burrill said that it belonged to her and that she had hidden it because it had been in plain view and she did not want Smith to get in trouble for it.
On August 5, 2005, the State filed an information charging Smith with one count of unlawful manufacture of a controlled substance, attaching a declaration of probable cause. On August 25, Smith served a discovery demand on the State, requesting the names of expert witnesses and their reports of scientific tests, experiments, and comparisons. At an omnibus hearing on January 4, 2006, the trial court ordered counsel to exchange witness contact information and their written or recorded statements and the substance of any oral statements, including expert reports and test results.
The State filed a witness list on September 21, 2005, listing among others, "Forensic Analysist, WSP Crime Lab." CP at 211. The State then filed a supplemental witness list on January 25, 2006, listing Robert Tucker and a school district official, Ken Bryant.
On January 23, 2006, the State served on Smith an amended information charging him with an additional count, unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine, and adding school bus route stop enhancements to both charges for committing the crimes within 1,000 feet of a school bus stop.
The amended information, filed in the trial court on January 30 and February 22, did not include its own declaration of probable cause. The trial court found some prejudice to Smith as a result of the delayed filing, but not of a magnitude sufficient to disallow the amended information.
A jury trial began on February 13, and testimony began on February 23. The State tried Smith and Burrill as co-defendants. The State initially listed Tucker as a witness, but he did not respond to a summons to appear. The trial court issued an arrest warrant and police officers booked Tucker into jail on February 28. On March 1, the State alerted the trial court and defense counsel of the possibility that Tucker would testify. On March 2, one of the State's expert witnesses from the Washington State Patrol Crime Lab relied on notes during her testimony, which the State had not produced during discovery. Also during the trial, defense counsel observed that the jury appeared to have been keeping a timeline showing its time spent in court versus in the jury room. Defense counsel argued that this constituted an impermissible discussion of the case before deliberations. The trial court declined the State's invitation to question the jury about it, responding, "By addressing it, you raise the issue more." 12 Report of Proceedings (RP) at 1048.
The trial court dismissed the case against Burrill at the end of the trial.
Tucker was also a potential co-defendant. The State offered him a deal in exchange for his testimony.
Smith moved to dismiss under CrR 8.3(b), arguing prosecutorial mismanagement. He also sought to exclude Tucker as a witness, challenged Tucker's competency to testify, and argued discovery violations and jury misconduct. The trial court denied the motion. After a separate hearing, the trial court deemed Tucker competent to testify and the State called him to testify. The jury found Smith guilty of one count of unlawful methamphetamine manufacture and one count of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine, both with school bus route stop enhancements. At sentencing, the trial court decided not to grant Smith a drug offender sentencing alternative (DOSA), stating, "I'm not going to consider DOSA, I'm not." 16 (May 19, 2006) RP at 1225. Smith appeals his convictions and sentence.
ANALYSIS Case Mismanagement and Discovery Violations
Smith first contends that the trial court erred by denying his motion to dismiss under CrR 4.7(h)(7)(i) and CrR 8.3(b) because the State's discovery rule violations and mismanagement denied him his constitutional rights to a fair trial and effective assistance of counsel. Specifically, he raises the State's late filing of an amended information, lack of due diligence in locating Tucker, and failure to produce expert witness notes.
Amended Information
Smith argues that the trial court should not have allowed the State to amend its information because the State failed to provide discovery related to the school bus route stop enhancements. Although he acknowledges that he had notice of the State's intention to file the enhancements, he asserts that, without discovery, he was unable to investigate or prepare. He also argues that the State unnecessarily delayed more than five months in amending the information because it did not rely on any new evidence in doing so.
We review a trial court's power to dismiss charges under CrR 8.3(b) for a manifest abuse of discretion. State v. Warner, 125 Wn.2d 876, 882, 889 P.2d 479 (1995). A trial court abuses it discretion when it bases its decision on unreasonable or untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Before a trial court can require dismissal of charges under CrR 8.3(b), a defendant must show arbitrary action or governmental misconduct. State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). Such misconduct need not be dishonest; simple mismanagement may suffice. Michielli, 132 Wn.2d at 239.
The defendant must also show prejudice affecting his right to a fair trial. State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996). Where the State inexcusably fails to act with due diligence and thereby prevents material facts from being disclosed, a defendant's right to a speedy trial or to effective assistance of counsel may be impermissibly prejudiced. State v. Woods, 143 Wn.2d 561, 582-83, 23 P.3d 1046 (2001). But where the State has not acted with due diligence, the defendant must show by a preponderance of the evidence that the interjection of new facts into the case would compel him to choose between prejudicing one of these rights. Woods, 143 Wn.2d at 583.
Under CrR 4.7(a)(1)(i) and (iv), the prosecutor has a discovery obligation to disclose to the defendant written statements and the substance of statements made by its witnesses, as well as any reports of experts made in connection with the case. But the scope of discovery lies within the sound discretion of the trial court to direct as it sees fit to ensure a fair trial. State v. Pawlyk, 115 Wn.2d 457, 470-71, 800 P.2d 338 (1990). The trial court may also permit the State to amend an information any time before a verdict if such amendment does not prejudice the defendant's substantial rights. Michielli, 132 Wn.2d at 244.
Here, in filing the amended information, the State relied on facts already known to it at the time of filing the original information, as contained in the declaration of probable cause. See Michielli, 132 Wn.2d at 244 (where the prosecutor delayed eight weeks before adding four charges for which the prosecution had long possessed all evidence and added those charges five days before trial, it suggested dishonorable motives and prejudice to the defendant resulted).
But in contrast to Michielli, Smith had actual notice of the amended charges a month before trial started. Further, the amended charge for possession with intent to manufacture closely related to the initial charge for manufacturing and so did not involve the interjection of new material facts not previously disclosed to Smith. The trial court properly exercised its discretion to find that the State did not substantially prejudice Smith's rights by filing an amended information. CrR 2.1(d).
Moreover, Smith's objections at trial to the amended information went to the school bus route stop enhancements. Although the State failed in its discovery obligation here, as shown by its producing the requested school bus route stop report to the defense within three days of the issue being raised before the trial court, the nature of the enhancement was simple and self-explanatory. The State also gave Smith one month actual notice that it would seek the enhancement, evidencing the lack of prejudice. There was no abuse of discretion.
Tucker's Testimony
Smith next argues that the State's failure to exercise due diligence in locating Tucker until late in the trial rendered Tucker a surprise witness highly prejudicial to the defense because the defense had insufficient time and opportunity to prepare and was forced to change its strategy and theory of the case mid-trial.
The State listed Tucker as a witness on January 25, 2006, but it also reported that it could not locate him. Tucker later testified that he had updated his new address with the Department of Motor Vehicles in May 2005, and received a summons mailed to him but that he could not attend trial without transportation. He also testified that he had tried to call the prosecutor's office to advise that he could not come in.
The record demonstrates that, at an early stage of the trial, both sides expected Tucker to appear as a witness. See 2 RP at 32 (Smith's counsel requested an admonition that, should Tucker testify, the State not elicit testimony that he feared Smith in order to bolster its case; admonition reserved); 2 RP at 42, 43 (Smith's counsel requested that Tucker's statements be excluded if the State located him; the State replied that it had not located Tucker but that this might change, that it had charged him as a co-defendant and that if he became available, "we'll have to see what goes on."); 2 RP at 91, 102-03, 109-10 (during preliminary hearings, both sides questioned Officer Johnson about his conversation with Tucker when serving the no-contact order on him).
The trial court noted that the State could have managed the case better, but it found that the level of mismanagement did not warrant dismissal and, ultimately, it determined that the facts presented did not arise to State wrongdoing or "hiding the ball." 12 RP at 1046. It weighed prejudice to Smith against knowing that the substance of Tucker's testimony was not a surprise because it was essentially what the parties knew it would be from the police reports. It also earlier noted that the defense had several days to interview Tucker before he took the stand.
Tucker's testimony unquestionably affected Smith's case because Tucker testified that Smith manufactured methamphetamine, used it, and sold it to others. Beyond the substance of his direct testimony, there were also greater potential implications for Smith's defense because Tucker and Smith shared the residence where the evidence was found and because there were questions as to Tucker's mental state during the period in question. Smith was also entitled to rely on the State's representations that it was meeting its due diligence obligation to locate Tucker but had been unable to do so.
Smith argues that, without Tucker's testimony, the State had only a circumstantial case, that late disclosure prejudiced Smith's case because the State failed to prove ownership and possession, and that defense counsel would have cross-examined the police officers differently to address Tucker's mental competency.
From this record, it is not clear if the State failed to exercise due diligence, although Tucker's testimony that he received his summons and contacted the prosecutor was in conflict with the State reporting that it could not locate him. The trial court agreed that Smith should have been provided a record of the State's attempts to locate Tucker, but the State did not present any information regarding this issue to the trial court.
The dismissal of a case is an extraordinary remedy of last resort. State v. Koerber, 85 Wn. App. 1, 5, 931 P.2d 904 (1996). The trial court's authority to dismiss under CrR 8.3(b) has also been limited to truly egregious cases of prosecutorial mismanagement or misconduct. Koerber, 85 Wn. App. at 4-5 (where the State's encouragement of two witnesses to disobey the court's discovery order was an example of egregious misconduct warranting CrR 8.3(b) dismissal). See also State v. Duggins, 68 Wn. App. 396, 402, 844 P.2d 441 (rejecting the defendant's claim that a continuance due to witness unavailability mandated dismissal because the prosecutor acted with due diligence in using a reasonable and efficient, albeit unsuccessful, way of conveying the subpoena to the witness), aff'd, 121 Wn.2d 524, 852 P.2d 294 (1993). Further, a trial court's dismissal of a case without considering intermediate remedial steps may itself constitute an abuse of discretion. Koerber, 85 Wn. App. at 4.
Here, it was not manifestly unreasonable for the trial court to find that the prejudice to Smith caused by Tucker's testimony did not warrant dismissal of the entire case against him because Smith was on notice of Tucker's potential appearance from the outset of the case and of the substance of his possible testimony and also had several days to interview Tucker before his trial testimony. The trial court could also have reasonably decided that the State's failure to locate Tucker sooner, although unfortunate for the defense, did not rise to a level of egregious mismanagement sufficient to warrant dismissal. The trial court did not abuse its discretion.
Expert Witness Notes
Smith next argues that the State's forensic scientist, Jane Boysen, relied on 83 pages of notes that the State failed to produce in discovery, in contravention of the trial court's omnibus order. The State counters that Smith failed to preserve this error.
At trial, the trial court tentatively denied Smith's objection to the notes and provided counsel the lunch hour to review them and renew the objection if he discovered anything in the contents that would alter the substance of his cross-examination. Smith's counsel resumed cross-examining Boysen after the break and did not renew the objection but later objected to the notes as part of his cumulative error argument.
Where the trial court makes a tentative ruling subject to evidence developed at trial, parties are under a duty to raise the issue at the appropriate time with proper objections at trial. State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456 (1984), overruled on other grounds, State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988). But we may exercise our discretion under RAP 2.5(a)(3) to review all errors, preserved and unpreserved, as part of a cumulative error doctrine analysis to ensure a fair trial. State v. Alexander, 64 Wn. App. 147, 150-51, 822 P.2d 1250 (1992). Here, Smith's counsel did not renew the objection at the time the trial court invited him to, but he did raise it as part of a cumulative error argument the following day. Thus, we address his claimed error.
The State had a clear discovery obligation to produce the notes as the trial court ordered on January 4, 2006. Boysen was a critical witness as she was the only one who had extensive experience with red P labs and who could clearly explain how and why the red P manufacturing process involved the evidence found at the scene. Her notes also contained scientific instrumental data and descriptions of tests she had run on the evidence. Her testimony, including the notes, was thus material and complex, and the State unfairly prejudiced Smith's ability to adequately prepare for cross-examination by failing to produce the notes.
The State's contention that Smith failed to exercise due diligence to obtain the notes belies its own explanation that it was unaware that the notes existed. The State explained to the trial court that it did not produce the notes because it did not ordinarily obtain them from its forensic analysts. At the same time, it argued that the defense failed to exercise due diligence because defense counsel was aware that forensic analysts frequently refer to notes in proffering their testimony.
Considering Smith's prosecutorial mismanagement and discovery violation claims as a whole, the State's failure to produce Boysen's notes constituted a discovery violation. But because this error standing alone is insufficient to warrant dismissal of the case under CrR 4.7(h)(7)(i) and CrR 8.3(b), we find no abuse of discretion in the trial court's decision denying Smith's motion to dismiss.
Prior Bad Acts Under ER 404(b)
Smith next contends that the trial court erred by failing to perform the necessary ER 404(b) analysis on the record in order to admit Smith's statement of his prior bad act where he said, "When I was arrested for manufacturing a controlled substance before, I did not use the red phosphorus technique." 6 RP at 394.
Under ER 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove conformity with it but may be admissible for other purposes, such as proof of motive, intent, or knowledge. We review the trial court's interpretation of ER 404(b) de novo as a question of law. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). If the trial court's interpretation of the rule is correct, we then review its decision to admit or exclude the evidence for an abuse of discretion. State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008, review denied, 157 Wn.2d 1025 (2006). But we presume such evidence inadmissible and resolve doubts as to admissibility in favor of exclusion. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002), review denied, 153 Wn.2d 1026 (2005).
To determine the admissibility of evidence under ER 404(b), the trial court must engage in a three-part analysis: (1) it must identify the purpose for which it will admit evidence, (2) it must find the evidence materially relevant, and (3) it must weigh the probative value against any unfair prejudicial effect the evidence may have. State v. Wade, 98 Wn. App. 328, 333-34, 989 P.2d 576 (1999). To avoid error, the trial court must identify the purpose for which it admits the evidence and must conduct the balancing test on the record. State v. Jackson, 102 Wn.2d 689, 693-94, 689 P.2d 76 (1984).
Here, the trial court explicitly stated that Smith's statement was relevant and also balanced its probative value against its prejudicial effect. But it failed to state as part of its analysis the purpose for which it admitted the statement. Nevertheless, the error was harmless because the trial court gave the jury a limiting instruction as to the appropriate purpose for which it could use the statement, and counsel for both sides also reminded the jury about this limited purpose during closing arguments. Further, although a trial court should clearly state the purpose of admissibility to facilitate proper review, here, the statement's purpose was sufficiently clear from the record. We find the trial court's error harmless.
In considering the admissibility of Smith's statement, the trial court stated, "I find that to be prejudicial, yet very probative to what the whole case is about. The case is about manufacturing controlled substances, methamphetamine. I find that to be relevant and probative, and it is very prejudicial." 6 RP at 394.
The State indicated multiple times that it was seeking to admit the statement only to prove knowledge and intent, both of which were elements of the crimes at issue. The statement showed Smith's knowledge of how to manufacture and that he had the ingredients and it showed his intent to manufacture again. The defense also stated its own understanding that the State was seeking to introduce the statement for the limited purposes of establishing motive, knowledge, and intent.
Sufficiency of Evidence
Next, Smith argues that the evidence was insufficient to support his conviction of possession with intent to manufacture. He asserts that bare possession cannot establish an intent to manufacture and the State's evidence of a past methamphetamine lab did not establish his intent to manufacture methamphetamine in the future.
Evidence sufficiently supports a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. Salinas, 119 Wn.2d at 201. On review, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We do not review the jury's credibility determinations on appeal. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
Here, the State produced numerous items consistent with methamphetamine manufacture, including rock salt, bottles of brake fluid, isopropyl alcohol, HEET, boxes of cold and allergy medicines containing ephedrine or pseudoephedrine, plastic baggies containing methamphetamine residue, matchbooks with striker plates missing, Y-shaped glassware, a siphon pump, a container of pure crystallized caffeine, stacks of coffee filters, and tincture iodine with gloves. The jury also heard police officers and other witnesses testify that this evidence was typically found at methamphetamine labs, as well as Smith's own statement that he had manufactured methamphetamine before, and Tucker's testimony that Smith had manufactured and sold methamphetamine in the past.
The jury could infer Smith's intent to manufacture methamphetamine from the methamphetamine residue and bottle of pseudoephedrine, the combination of methamphetamine manufacturing precursors found at the scene, and the testimony regarding his past manufacturing activities. See State v. McPherson, 111 Wn. App. 747, 757-59, 46 P.3d 284 (2002) (the unusual combination of evidence of manufacturing precursors, extracted pseudoephedrine, cash, scale with methamphetamine residue, nearly empty anhydrous ammonia tank, records, and vial of methamphetamine was sufficient to support the defendant's conviction for possession of methamphetamine with intent to manufacture). Viewed in the light most favorable to the State, sufficient evidence supported the conviction. Smith's argument fails.
Jury Misconduct
Smith next contends that the trial court erred by failing to cure potential jury misconduct when defense counsel reported that the jury was impermissibly "discussing the case" by writing down how much time it had spent in the jury box versus in the jury room. 12 RP at 989. The trial court declined the State's invitation to question the jury about the incident, stating, "By addressing it, you raise the issue more." 12 RP at 1048.
On a defendant's motion, the trial court may grant a new trial for jury misconduct. CrR 7.5(a)(2). Further, if the trial court has any doubt whether jury misconduct has affected the verdict, it is obliged to grant a new trial. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 137, 750 P.2d 1257, 756 P.2d 142 (1988).
We review the trial court's determination of whether jury misconduct has occurred for a manifest abuse of discretion as the court is in the best position to make this decision. State v. Havens, 70 Wn. App. 251, 255-56, 852 P.2d 1120 (1993); State v. Tigano, 63 Wn. App. 336, 342, 818 P.2d 1369 (1991). In order for jury misconduct to merit a new trial, we must also find prejudice to the defendant, assessed by comparing all of the facts and circumstances of the trial. Tigano, 63 Wn. App. at 341-42.
Here, before defense counsel reported the incident, the trial court indicated its own awareness of a potential issue with the jury's impatience, cautioning both counsel about the length of the trial caused by their delays and that the jury would tire of going "up and down." 11 RP at 875. The record also shows that the State requested matters taken outside the presence of the jury at least seven times before discovering the incident, which was significantly more often than the defense.
Accordingly, when Smith's counsel raised the issue, the trial court noted that any potential prejudice by the jury could cut against either side. Smith's counsel also did not join in the State's invitation to the trial court to question the jury about any potential bias.
Thus, although the trial court's statement alone suggests a refusal to consider whether possible jury misconduct had occurred, necessitating remedial action, the record demonstrates that the trial court did in fact consider this but, based on the surrounding facts and circumstances of the trial, ultimately decided not to question the jury about the incident. The trial court's decision was not manifestly unreasonable and it did not abuse its discretion.
The incident itself was also arguably not a clear case of jury misconduct.
DOSA
Smith also contends that the trial court abused its discretion by refusing to meaningfully consider a DOSA.
As a general rule, we do not review a trial court's decision whether to grant a DOSA. RCW 9.94A.585(1); State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003). But an offender may always challenge the procedure by which the trial court imposed his sentence. State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989). Although broad sentencing discretion rests in the trial court's hands, it must exercise that discretion in conformity with the law. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). A trial court may not categorically refuse to consider a DOSA sentence. Grayson, 154 Wn.2d at 342.
Smith's sentencing hearing was initially set for April 21, over a month after the verdict. On that day, Smith moved for a continuance to May 5, advising the trial court that he was seeking a DOSA and that the necessary evaluation should be completed on April 27, and mailed on April 28. At that point, the State alerted the trial court that it would be opposing a DOSA.
The sentencing hearing did not take place until May 19. At the time of the hearing, the trial court had not yet received a copy of the DOSA evaluation. Smith chose to proceed without the trial court having the formal documentation, although the State warned him that it would adamantly oppose a DOSA.
The State then argued for a high-end sentence based on the following factors: Smith's prior conviction for the same criminal behavior; his late interest a DOSA; methamphetamine manufacturers were not considered good DOSA candidates because they undermine the program "from the inside out"; Smith had been living off of Tucker's disability payments and using his residence to manufacture drugs, then tried to remove him with a no-contact order when he knew Tucker had nowhere to go; and Smith had sent Tucker a threatening email after charges were filed. 16 RP at 1215.
The trial court noted that it had been waiting for one to two months but it had never received the DOSA documentation and, at that point, refused Smith's offer to provide the trial court with its own unofficial documentation. The trial court then stated that it had read letters of recommendation from Smith's parents and noted their desire that he receive treatment. It also invited Smith to speak, who declined. It then stated, "I'm not going to consider DOSA, I'm not," going on to note Smith's obvious dislike for Tucker while Tucker was on the witness stand, that Smith had a prior conviction, and that he did not present well in court. 16 RP at 1225.
Thus, although the trial court stated a refusal to consider a DOSA, the record shows that it did not categorically refuse to consider it but rather made a decision not to grant a DOSA after a consideration of factors. See State v. White, 123 Wn. App. 106, 114-15, 97 P.3d 34 (2004) (where the trial court alluded to the defendant's infraction record and drug abuse after completing a treatment program, the facts supported the trial court's exercise of discretion and the trial court did not err in denying a DOSA request). The trial court was within its discretion to deny a DOSA and we find no procedural error.
Cumulative Error
Finally, Smith claims that the cumulative error doctrine applies because, although any of the above errors standing alone may be insufficient to justify reversal, combined, they denied him his right to a fair trial and warrant reversal.
We agree with the State that the alleged DOSA sentencing error is not properly considered as part of our cumulative error doctrine analysis.
Where individual evidentiary errors and discovery violations are not of sufficient gravity to warrant a new trial, the combined effect of the errors may constitute grounds for a new trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). Here, we find that the only error was the State's violation of discovery rules in failing to produce the notes of its expert witness, Boysen. This is insufficient to warrant a new trial under the cumulative error doctrine.
Affirmed.
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.
ARMSTRONG, J. and VAN DEREN, J., concur.