Opinion
No. 29457-5-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-05626-5. Judgment or order under review. Date filed: 09/24/2002. Judge signing: Hon. Sergio Armijo.
Counsel for Appellant(s), Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Elijah Michael Stroman appeals his first degree felony murder conviction. He alleges (1) prosecutorial misconduct; (2) trial court error in evidentiary rulings and in denying his motion for mistrial; (3) violation of his Fourth Amendment rights; (4) ineffective assistance of counsel; and (5) cumulative error. In a separate Statement of Additional Grounds (SAG), Stroman challenges detectives' photomontage interviewing techniques and admission of opinion testimony. Finding no error, we affirm.
RAP 10.10.
FACTS
On October 16, 2001, Stroman, Jeanette Murray, and Todd Dow drove to the Travel Inn motel in Tacoma. Dow gave Stroman use of his car in exchange for drugs and a place to sleep.
During the ride, Dow saw Stroman display a brick-colored gun that he believed had .22 caliber bullets.
When they arrived at the motel, Murray enlisted someone named 'Papa' to sign the motel registration card and to show identification for the room. 13 Report of Proceedings (RP) at 578. Murray also signed the registration card under a false name. Murray, Stroman, and Dow then went to room 30, where Calvin Rouse joined them. Dow saw Murray hold the gun and then hand it back to Stroman.
The four stayed at the motel until October 18th. On that night, Gary Wilson and Cassidy Moen were engaging in sexual acts and smoking crack cocaine in room 24 of the motel. Wilson and Moen eventually ran out of cocaine. Moen saw Murray outside their motel room and knew that Murray would sell her more drugs.
Murray sold them crack on more than one occasion that night and, at one point, she noticed that Wilson had a large amount of cash in the motel room. Murray advised Wilson to put the money away because of people who 'can and will take your money if they have a chance.' 16 RP at 901.
After she saw Wilson's money, Murray returned to room 30 and told Stroman, Rouse, and Dow that Wilson had a large amount of cash. Stroman, Rouse, and Murray decided that they wanted to 'hit a lick.' 21 RP at 1831. Dow testified that this slang phrase meant '[t]aking something from somewhere or somebody.' 21 RP at 1831.
This group then 'unexpected[ly]' began planning to leave room 30 and discussed which of their belongings they should take down to the car. 21 RP at 1833. They instructed Dow on what to take down and, after he made several trips, they told him to wait in the car. From the car, Dow saw Stroman, Murray, and Rouse leave room 30 and walk toward room 24.
Someone knocked at Wilson's motel room door, and Wilson answered it. Murray and the two men entered the room. One of the men had a bandana covering most of his face and carried a gun. Murray grabbed for Wilson's jeans, which were on the floor, while the two men began to beat Wilson.
Moen backed toward the bathroom and heard Wilson say, 'Stop. Don't shoot.' 16 RP at 910. Moen then heard several gunshots but could not see who fired the gun. When Moen emerged from the bathroom, Wilson was on the floor, and the three assailants were gone. Moen went to the door and saw a tall black male jump into a car and pull out quickly.
While Dow was waiting in the car, he heard shots. Then he saw Murray, Stroman, and Rouse run for the car and saw Stroman lose a shoe. When they reached the car, Stroman got behind the wheel, Murray hopped in with money in her hands, and Rouse was bleeding from an injury.
Stroman drove to the East Wind Motel in Federal Way, stating that Tacoma was a 'hot area' and that they should 'go somewhere else.' 21 RP 1856. Police responded to the Travel Inn and found Wilson dead. He had suffered three gunshot wounds and multiple injuries to his upper torso as a result of blunt trauma. The police recovered four bullet casings that were.45 caliber.
Police found documents with Rouse's name on them in room 24, a white tennis shoe on the staircase, and a $100 bill in the parking lot. A search of room 30 revealed a Cheetos bag with Stroman's fingerprint and a beer can with Murray's fingerprint.
The police arrested Murray and Stroman at the East Wind Motel on October 26th. On October 29, 2001, the State charged Stroman with first degree felony murder with a firearm enhancement.
The trial court denied Stroman's motion to suppress evidence the police found in room 30 and his motion to suppress Moen's identification of Stroman as one of the assailants.
During trial, Stroman moved for a mistrial because the State elicited testimony indicating that Stroman's fingerprints were on file with police before the current crime. The court denied the motion.
Stroman moved to preclude Dow from testifying that he saw Stroman with a gun shortly before the shooting. Following Stroman's offer of proof, the court denied the motion. The court also denied Stroman's motion to exclude Dow's testimony regarding plans to 'hit a lick' and leave town. 21 RP at 1831.
The jury found Stroman guilty as charged. At sentencing, the court ordered Stroman to provide a blood sample for deoxyribonucleic acid (DNA) identification analysis.
Stroman subsequently filed this timely appeal, asserting prosecutorial misconduct, trial court error in the admission of evidence and denial of Stroman's motion for mistrial, violation of his Fourth Amendment rights, ineffective assistance of counsel, and cumulative error. In a separate SAG, Stroman also challenged suggestive identification procedures and the admission of opinion testimony.
ANALYSIS I. Prosecutorial Misconduct
Stroman alleges that the prosecutor committed multiple acts of 'flagrant' and 'egregious' misconduct throughout the trial. Stroman lists a number of acts that he contends amount to prosecutorial misconduct, but we address only the assertions with arguable merit.
We review a trial court's ruling on a claim of prosecutorial misconduct under an abuse of discretion standard. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). The defendant bears the burden of showing prejudicial misconduct. Finch, 137 Wn.2d 839.
A prosecutor's misconduct warrants a new trial where there is a substantial likelihood that the misconduct affected the verdict. Finch, 137 Wn.2d 839. But where Stroman did not timely object below, we will not disturb the jury's decision unless the misconduct is 'so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Stroman first asserts that the prosecutor committed misconduct by detailing how difficult it was for Moen to suffer the embarrassment of testifying. He contends that this tactic appealed to the passions and prejudices of the jury and influenced the jury to draw 'a negative inference from the fact that Stroman had exercised his right to have a trial occur.' Br. of Appellant at 34. Appeals to the jury's passions and prejudices, and references to matters outside the evidence, are improper. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
The State asked Moen whether she had 'experienced any hardship in the jail because of the fact that [she was] a material witness in a murder case.' 16 RP at 953. Moen responded, 'Yes.' 16 RP at 953. A defense objection was sustained.
Stroman also claims that the prosecutor tried to prevent the jury from knowing that it was the State that caused Moen to be held in jail for over 40 days. But both the State and Stroman told the jury that Moen was incarcerated on the State's motion.
On the evidence in this case this question was improper, but it is unlikely that it influenced the jury or affected its verdict. The jury properly heard testimony that Moen was being held in jail at the State's request because she was a flight risk. Any impropriety by the prosecutor was harmless under these circumstances.
Stroman now raises similar objections to the prosecutor's statement during closing:
[D]efense counsel spent the better part of a day cross-examining Cassidy Moen, reminding her exactly why it is she wishes she could forget the events that occurred on October 19th at the Travel Inn on Pacific Avenue.
Cassidy Moen got exactly what she anticipated she'd get for cooperating with the investigation and testifying at trial. Cassidy Moen was incarcerated for over 42 days on a motion by the Prosecutor's Office. . . .
But she got far more than that. Cassidy Moen got absolute humiliation. For almost a full day she sat on the stand right here, before numerous people she'd never met before, and had to disclose to you the most personal natures of her lifestyle.
23 RP at 2097-98. Stroman did not object to this argument at trial.
While this argument may be viewed as one appealing to the passions and prejudices of the jury, it was not flagrant misconduct requiring reversal. Brown, 132 Wn.2d at 561. And any prejudice created by the prosecutor's statements could have been neutralized by a curative instruction to the jury had an objection been made.
Stroman further argues that the prosecutor's implication that cross-examination was too long 'infringed upon Stroman's exercise of his rights to confrontation and, by extension, to have counsel vindicate that right for him.' Br. of Appellant at 36. The connection between the prosecutor's statement and Stroman's inference that his constitutional rights were violated is tenuous at best and certainly did not prejudice Stroman, since Moen did not change her testimony during the lengthy cross-examination.
Stroman further asserts that the prosecutor committed misconduct by bolstering Moen and Dow's credibility. But the prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986). Here, the prosecutor simply used the facts of the case to infer that the State's witnesses were telling the truth. There was no prejudicial impropriety in this assertion.
Finally, Stroman argues that the prosecutor misstated the law during closing argument when he stated that in order to believe the defense theory of the case, the jury would have to believe that the police engaged in corrupt behavior. Stroman contends that this improperly gave the jury a false choice. See State v. Wright, 76 Wn. App. 811, 824, 888 P.2d 1214 (1995).
The prosecutor told the jury that for the defense theory to be correct, the police 'had to tell not one, not two, but half a dozen civilian witnesses what to say to make all the pieces fit together.' 23 RP at 2201. Stroman did not object to this argument.
It is proper for the prosecutor to argue that the defense theory is untenable based on the evidence before the jury. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994). Here, the prosecutor's characterization of Stroman's case was not flagrant and ill-intentioned. This conclusion is bolstered when the challenged statements are read in the context of the prosecutor's subsequent instructions to the jury to 'follow the law' and 'look for the truth.' 23 RP at 2201.
Thus, we find no prosecutorial misconduct warranting reversal.
II. Evidentiary Rulings
Trial courts have broad discretion in admitting or excluding evidence. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). We will not disturb the trial court's ruling unless it abuses its discretion. This occurs where 'no reasonable person would adopt the view espoused by the trial court.' Demery, 144 Wn.2d at 758.
1. Dow's Testimony
Stroman challenges the trial court's admission of two portions of Dow's testimony under ER 801(d)(2)(v), which provides that 'a statement by a coconspirator of a party during the course and in furtherance of the conspiracy' is not hearsay.
Stroman first challenges Dow's testimony about a conversation among Stroman, Murray, and Rouse immediately before Wilson's murder. Dow testified that during the evening of October 18, Murray returned from room 24 and told Dow, Rouse, and Stroman that the man in room 24 had a lot of money. Stroman, Rouse, and Murray then 'started talking about money and how much he had, and decided that they wanted to make — they said this expression, 'hit a lick.'' 21 RP at 1828. Dow testified that to 'hit a lick' meant '[t]aking something from somewhere or somebody.' 21 RP at 1831.
Stroman then asked Dow to take their belongings down to the car. Dow testified that each time he returned to the room from the car, Stroman and the others were talking about what to take or leave, but he did not recall any more discussion about the money in room 24. After Dow took approximately four loads of belongings to the car, he was told to go sit in the car.
For testimony to be admitted under ER 801(d)(2)(v), the State must establish by a preponderance of the evidence that the defendant was a member of a conspiracy. State v. Guloy, 104 Wn.2d 412, 420, 705 P.2d 1182 (1985). It must also establish that the challenged statements were made during the course of and in furtherance of the conspiracy. State v. St. Pierre, 111 Wn.2d 105, 118-19, 759 P.2d 383 (1988). If the testimony meets the ER 801(d)(2)(v) requirements, the trial court may admit it even if the State has not charged the defendant with conspiracy. State v. Dictado, 102 Wn.2d 277, 283, 687 P.2d 172 (1984).
A conspiracy exists 'when, with intent that conduct constituting a crime be performed, [a person] agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.' RCW 9A.28.040(1). The trial court concluded that '[m]ore likely than not' there was 'independent evidence of a conspiracy' and admitted the challenged testimony under ER 801(d)(2)(v). 21 RP at 1806.
The State established by independent evidence that the challenged statement was in furtherance of a conspiracy to rob the people in room 24. Particularly, the State established that Stroman, Rouse, and Murray took a substantial step in pursuing the agreement to 'hit a lick' on room 24 shortly after making the statements that Dow overheard. 21 RP at 1831. Furthermore, Dow's testimony qualifies as a party admission under ER 801(d)(2)(ii). Dow helped Stroman, Rouse, and Murray flee the scene of the robbery and murder.
This court may affirm the trial court on any basis supported by the record. See State v. Carroll, 81 Wn.2d 95, 101, 500 P.2d 115 (1972). The record shows that Stroman, Murray, and Rouse participated in an ongoing conversation about the money in room 24. Dow testified that Murray was specifically speaking to Stroman when she stated that there was a lot of money in room 24 and that Dow and Rouse were primarily listening. This evidence is sufficient to warrant the admission of Dow's testimony under ER 801(d)(2)(ii) as a statement that Stroman has 'manifested an adoption or belief in its truth.' ER 801(d)(2)(ii). Thus, the statement was admissible under ER 801(d)(2)(ii) and ER 801(d)(2)(v) and there was no error.
Stroman also challenges Dow's testimony that, after the murder, Stroman stated that Tacoma was a 'hot area' and that they should 'go somewhere else.' 21 RP at 1856. The State concedes that the testimony regarding Stroman's statements after Wilson's murder were not made 'during the course of' or 'in furtherance of the conspiracy.' ER 801(d)(2)(v). See, e.g., State v. Anderson, 107 Wn.2d 745, 733 P.2d 517 (1987). They assert, however, that Dow's testimony was admissible under ER 801(d)(2)(i).
These are Stroman's own statements, offered by the State against Stroman, and are admissible under ER 801(d)(2)(i). The court properly denied Stroman's objection to the admission of this testimony by Dow.
2. Dow's Gun Testimony
Stroman also challenges the trial court's admission of Dow's testimony regarding Stroman's possession of a gun en route to and while at the motel. He asserts that the testimony is irrelevant and unduly prejudicial.
''Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' ER 401. The court may exclude relevant evidence if its 'probative value is substantially outweighed by the danger of unfair prejudice.' ER 403.
The evidence here established that on October 16, Dow saw Stroman brandish a 'brick' colored gun while they were en route to the Travel Inn. 21 RP at 1861. Once they were at the motel, Dow witnessed Murray look at the gun and then return it to Stroman.
Dow testified that the bullets looked 'pretty small, to me.' 21 RP at 1863. When asked what caliber the bullets were, he stated, '[M]y opinion was .22 caliber, but I don't have a lot of experience like some other people do.' 21 RP at 1864. He stated that he had fired a gun 23 years earlier but did not 'know a whole lot' about guns. 21 RP 1863. He also stated that because the bullets were in a clip, it was difficult to gauge their size.
In contrast to Dow's testimony, the shells found at the scene were from a .45 caliber gun. And Moen testified that the gun was '[b]ig and black.' 16 RP 909.
The court ruled that the gun testimony was admissible, noting that Dow was 'unsophisticated in describing the gun' and that there 'might be a problem with the color.' 21 RP at 1815. It stated that the evidence was prejudicial but also very probative: 'A gun was used to kill the individual, the victim. I'm going to allow it.' 21 RP at 1815.
Stroman later asked the court to reconsider its ruling. The court denied the motion, stating, '[F]rom the evidence that's been produced, I can't say that it wasn't the same gun.' 21 RP at 1891.
We defer to the trial court's determination of whether evidence is relevant and review that determination only for an abuse of discretion. State v. Lane, 125 Wn.2d 825, 835, 889 P.2d 929 (1995). Here, the trial court's conclusion that Dow's testimony was relevant and probative, and that its probative value outweighed its prejudicial effect was not an abuse of discretion. Thus, there was no error.
III. Motion for Mistrial
Stroman claims that the trial court erred in denying his motion for a mistrial. The motion was based on the State eliciting testimony that Stroman's fingerprints were on file with the police department before his arrest for the current offenses.
A mistrial is appropriate where a defendant 'has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.' Mak, 105 Wn.2d at 701. We review a trial court's denial of a mistrial motion for a manifest abuse of discretion. State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d 1304 (1996). A trial court abuses its discretion when no reasonable person would have reached the same conclusion. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989).
Tim Taylor, a forensic specialist, testified that fingerprints he found on a Cheetos bag recovered from room 30 at the Travel Inn matched Stroman's fingerprints. When asked what he used to compare the fingerprints found on the Cheetos bag, Taylor responded that the 'original comparison was done on the 22nd [of October] with the master card that was maintained [on] file.' 15 RP at 728. The court sustained Stroman's objection to any reference to prints contained in any file or record, but denied his motion for a mistrial.
Because the police did not arrest Stroman until October 26th, Stroman asserts that the challenged testimony informed the jury that he had a prior criminal background and that this error warranted a mistrial. But this is an insufficient ground for a mistrial.
In State v. Condon, 72 Wn. App. 638, 649, 865 P.2d 521 (1993), a witness revealed that the defendant had previously been in jail. The court refused to grant a mistrial, and the appellate court affirmed, stating:
The mere fact that someone has been in jail does not indicate a propensity to commit murder, and the jury just as easily could have concluded that Condon was in jail for a minor offense. Also, the fact that someone has been in jail does not necessarily mean that he or she has been convicted of a crime.
Condon, 72 Wn. App. at 649.
The facts here parallel Condon. The witness's statement was relatively ambiguous and did not rise to the level of prejudice requiring a new trial. Thus, the trial court did not abuse its discretion in denying Stroman's motion for a mistrial.
IV. Expectation of Privacy
Stroman contends that police violated his state and federal rights against unreasonable search and seizure when they searched room 30 at the Travel Inn. He asserts that he had a legitimate expectation of privacy in the contents of the room until check-out time at 11 a.m. on October 19, 2001.
Both the state and federal constitutions protect a citizen's right against unreasonable searches and seizures by police. U.S. Const., amend. IV; Wash. Const. art. I sec. 7; State v. Johnson, 104 Wn. App. 409, 414, 16 P.3d 680 (2001). The Fourth Amendment protects people from unlawful government intrusion where there is a 'personal and legitimate expectation of privacy in the area searched.' State v. Jones, 68 Wn. App. 843, 847, 845 P.2d 1358 (1993). The state constitution provides even stronger protections. State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d 1199 (1980).
State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986), sets out six nonexclusive neutral criteria to be used to determine whether our Washington constitution affords greater protection than its federal counterpart. Stroman has failed to address the Gunwall factors and we accordingly decline to consider his state constitutional claim. State v. Boot, 81 Wn. App. 546, 550, 915 P.2d 592 (1996) (citing State v. Mierz, 127 Wn.2d 460, 473 n. 10, 901 P.2d 286 (1995) and State v. Olivas, 122 Wn.2d 73, 81-82, 856 P.2d 1076 (1993)).
Whether Stroman's Fourth Amendment rights were violated by the search of Room 30 depends on whether, under the totality of the circumstances, the disputed search and seizure invaded Stroman's personally held legitimate expectation of privacy. State v. Jones, 68 Wn. App. 843, 847, 845 P.2d 1358 (1993) (citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)); see United States v. Freitas, 716 F.2d 1216, 1220 (9th Cir. 1983). A legitimate expectation of privacy exists where an individual manifests a subjective expectation of privacy in the area searched, and society recognizes the individual's expectation of privacy as reasonable. California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986); State v. Kealey, 80 Wn. App. 162, 168, 907 P.2d 319 (1995).
The trial court concluded that Stroman did not have standing, because he was not listed on the registration card and was not a legal guest at the motel. The State asks us to affirm the result on different grounds; that Stroman had no legitimate expectation of privacy in the motel room because (1) he was not lawfully occupying the room, and (2) he abandoned the room before the police search. We may affirm the trial court on any basis supported by the record, even a basis not relied on by the trial court. State v. Carroll, 81 Wn.2d 95, 101, 500 P.2d 115 (1972).
The State argues that Stroman and the room's other occupants abandoned the room when they left the motel, thus eliminating any legitimate expectation of privacy in the room's contents. We agree.
We review whether Stroman abandoned the motel room by looking at 'the totality of the circumstances, noting in particular two factors: whether the suspect denied ownership of the property and whether he physically relinquished the property.' United States v. Liu, 180 F.3d 957, 960 (8th Cir. 1999). Abandonment 'is determined on the basis of the objective facts available to the investigating officers, not on the basis of the [defendant's] subjective intent.' United States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997).
On the night of the 18th, Stroman instructed Dow to take particular belongings from the motel room and pack up the car. Stroman and Murray talked about 'things that they were going to leave [at the motel], the garbage or the pizza or whatever.' 21 RP at 1834. Dow made four or five trips to the car with the group's belongings, based on their instructions.
Dow was then told to wait in the car, immediately after which Dow saw Stroman walk toward room 24. Dow then heard 'three or four' gunshots and 'yelling' and Stroman, Rouse, and Murray came running to the car. 21 RP at 1842. Dow testified that they had 'no intention of returning to that hotel room.' 12 RP at 551. And Stroman never did return to the motel room. On the contrary, the group traveled to Federal Way and rented another room.
Police arrived shortly thereafter and began to investigate the murder scene in room 24. Evidence is disputed as to whether the police searched room 30 before the 11 a.m. check-out time.
Stroman told police that on the evening in question he had been with his father and then stayed that night at his mother's residence. When asked why his fingerprints had been found on a Cheetos bag in room 30 of the Travel Inn, he stated, 'I don't know. . . . I eat Cheetos.' 18 RP at 1266.
It is evident that Stroman had abandoned room 30 before the police search. Before the robbery and murder, Stroman instructed Dow to carry only the belongings that they intended to keep to the car, thereby abandoning all items left in the motel room. He fled in the car to the East Wind Motel in Federal Way with Rouse, Murray, and Dow immediately after the shooting. Stroman denied occupying the motel room and owning the Cheetos bag.
Stroman did not have any legitimate expectation of privacy warranting Fourth Amendment protections after leaving the motel. The trial court reasonably concluded that the police search of room 30 did not violate Stroman's constitutional rights.
Because the record clearly establishes that Stroman abandoned room 30 and fled to another motel before the police searched room 30 at the Travel Inn, we do not address whether Stroman's occupancy of the room under falsely registered names negated any reasonable expectation of privacy.
V. Blood Draw
Under former RCW 43.43.754(1) (1999): 'Every adult or juvenile individual convicted of a felony . . . shall have a blood sample drawn for purposes of DNA identification analysis.' Stroman argues that the sentencing court's requirement that he provide a blood sample violates his Fourth Amendment rights to be free from unreasonable search and seizure.
A blood draw is a search. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). But it does not trigger Fourth Amendment protections if the search qualifies under the 'special needs' exception. United States v. Kincade, 379 F.3d 813 (9th Cir. 2004). This exception applies where a search is justified by 'special needs, beyond the normal need for law enforcement, [that] make the warrant and probable-cause requirement impracticable.' Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) (Blackmun, J., concurring in judgment)); Kincade, 379 F.3d at 823.
Both the 9th Circuit and our Supreme Court have held that DNA sampling of convicted criminals qualifies under the 'special needs' exception. Kincade, 379 F.3d at 823; State v. Olivas, 122 Wn.2d 73, 97-98, 856 P.2d 1076 (1993). Our court's ruling in Olivas dealt with an earlier version of RCW 43.43.754(1) that was limited to convicted sex offenders.
Division One recently affirmed the constitutionality of current RCW 43.43.754(1) based on the court's analysis in Olivas. State v. Surge, 122 Wn. App. 448, 460, 94 P.3d 345 (2004). Because the holdings of Kincade and Olivas provide clear precedent for upholding the constitutionality of former RCW 43.43.754 under the special needs exception, Stroman's constitutional challenge fails.
VI. Ineffective Assistance of Counsel
Stroman raises two issues that he contends demonstrate his counsel's ineffectiveness. Stroman has the burden of showing that his counsel's representation was deficient and that this deficiency prejudiced him. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume that defense counsel provided competent representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Counsel's representation is deficient only if it falls below an objective standard of performance, and representation is not deficient if counsel's actions were tied to a legitimate strategic or tactical rationale. McFarland, 127 Wn.2d at 335-36. Prejudice results where there is a reasonable probability that, but for counsel's deficient performance, the outcome would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Stroman first asserts that his counsel ineffectively argued a motion to suppress based on Moen's identification of Stroman. Stroman notes specifically that counsel failed to highlight the discrepancy between Moen's statement that the perpetrator's eyes were 'hazel' and the fact that Stroman's eyes are brown. 17 RP at 1062.
During the suppression hearing, the arguments focused on the detectives' investigative techniques that led to Moen's identification of Stroman as the man she saw at the Travel Inn on October 18. The court ruled that the identification procedures used by the detectives were suggestive because the detectives used Stroman's street name 'Chill' before showing Moen a photomontage. 9 RP at 319.
The State then made an offer of proof, and Moen testified that the detectives 'never pointed out the picture and the name and put it together. I pointed out the picture, and then they told me the name.' 9 RP at 352. The court then ruled that the photomontage procedure was permissible and not 'irreparably suggestive.' 9 RP at 445.
Moen's statement that Stroman's eyes were hazel when they were actually brown would have had little, if any, impact on the court's ruling on the propriety of the detectives' interviewing and identification techniques. And Stroman's attorney did pursue the issue of eye color before the jury by asking Moen to 'look at him. Be honest. Look at his eyes. He doesn't have hazel eyes?' 17 RP at 1062. To which Moen responded, 'They're brown.' 17 RP at 1062. Counsel's performance was neither deficient nor prejudicial.
Stroman also argues that counsel was ineffective for not objecting to numerous instances of prosecutorial misconduct. Because there was no prosecutorial misconduct requiring reversal, this argument fails.
VII. Cumulative Error
This court may reverse Stroman's convictions if the combined effect of trial error resulted in a fundamentally unfair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). But to succeed on this ground, there must be some error at the trial court level, and there was none. Thus, there is no ground for asserting cumulative error.
VIII. SAG Issues 1. Photomontage
In his SAG, Stroman also raised prosecutorial misconduct claims, which are addressed in section I, supra, and 'improper in-court identification,' which is addressed in section VIII(A), infra. Stroman also asserts that the trial court erred by admitting Moen's testimony that she bought 'dope' from Stroman. But the record does not show that Moen referred to Stroman selling drugs.
Stroman argues that his due process rights were violated by the State's suggestive methods of obtaining Moen's identification of him as the perpetrator. We review the trial court's admission of evidence for an abuse of discretion. State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001). We will only disturb the court's ruling if it is manifestly unreasonable or based on untenable grounds or untenable reasons.
'An out-of-court photographic identification meets due process requirements if it is not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' State v. Eacret, 94 Wn. App. 282, 285, 971 P.2d 109 (1999) (citing Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977). Stroman must first show that the identification procedure was suggestive in that it directed 'undue attention to a particular photo.' State v. Linares, 98 Wn. App. 397, 403, 989 P.2d 591 (1999) (quoting Eacret, 94 Wn. App. at 283).
Stroman has not made this showing. The trial court reasonably concluded that while the detectives improperly mentioned Stroman's street name before the photo identification, the name was not linked with the six-picture photomontage Moen later viewed. Moen developed her opinion of Stroman's appearance based on seeing him at the hotel, seeing him on the street after the murder, and then viewing his picture in a photomontage.
2. Opinion Testimony Regarding Stroman's Eyes
Stroman contends that the trial court erred in admitting Moen's opinion of how Stroman's eyes appeared to her. Moen testified that Stroman's eyes 'look[ed] evil' and 'he had a lot of hate in his eyes.' 16 RP at 907. Counsel objected to the testimony as nonresponsive and moved to strike. The trial court sustained the motion.
Under ER 701 and 703, a witness may not give an opinion of a defendant's guilt. Demery, 144 Wn.2d at 759. Giving such an opinion invades the jury's province and violates the defendant's constitutional right to a jury trial. Demery, 144 Wn.2d at 759.
Opinion testimony is 'based on one's belief or idea rather than on direct knowledge of the facts at issue.' Demery, 144 Wn.2d at 760 (quoting Black's Law Dictionary 1486 (7th ed. 1999)). And in this case, Moen expressed her belief that Stroman had hateful, 'evil' eyes. 16 RP at 907.
While this appears to be improper opinion testimony, the court properly cured any prejudice when it sustained counsel's objection. The court instructed the jury to 'disregard any evidence that either was not admitted or that was stricken by the court.' Clerk's Papers at 43. We presume jurors follow the court's instructions and there is no reason to believe the jury in this case failed to do so. State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995).
Because we find no error, we affirm Stroman's convictions.
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 QUINN-BRINTNALL, C.J., Concur.