Opinion
No. 47493-6-I, c/w 48515-6-I, 50501-7-I
Filed: July 14, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 99-1-07236-3 Judgment or order under review Date filed: 10/20/2000
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Stephen Paul Hobbs, King County Courthouse, Ste 5th, 516 3rd Ave, Seattle, WA 98104-2385.
Priestley Thompson appeals his conviction for burglary in the first degree, arguing that the trial court erred by admitting evidence of photomontage identifications that he contends were based on impermissibly suggestive procedures and therefore unreliable. Thompson also contends that the trial court erred by excluding evidence that he had passed a drug test several months before the burglary; that the trial judge made an impermissible comment on the evidence; and that the State committed prosecutorial misconduct. In a pro se supplemental brief Thompson alleges that the search warrant was improper, that an investigating detective knowingly perjured himself, and that the trial court judge gave a personal opinion during a pretrial hearing. Thompson also filed a personal restraint petition and a number of addenda thereto adding to some of the above arguments, and alleging further improprieties in the circumstances of his search and arrest. We find no reversible error and affirm Thompson's conviction. We also dismiss his personal restraint petitions.
FACTS
On the afternoon of August 10, 1999, Michael Murdock left work and arrived at his rural Woodinville home around 4 p.m. Shortly afterward, his wife left for an evening out with friends, and Murdock went out to the back deck to relax. About five minutes later, Murdock went back inside to retrieve his cell phone. Once inside, he noticed a door that was ajar and heard the sound of drawers opening and closing. When he entered the master bedroom, he confronted a man standing near a chest of drawers.
Both men were momentarily startled. The intruder ordered Murdock to get down on the floor. Murdock refused, and started to back down the hallway toward a utility room, hoping that the intruder would run outside if given an avenue of escape. Instead, as Murdock backed into the utility room, the intruder followed and attacked him. The two fought for several minutes, and Murdock was knocked to the floor at least twice. Throughout the attack, the intruder ordered Murdock to get on the floor and said that he was going to kill him. At one point, the intruder said that he needed money for drugs. The intruder told Murdock to get into a closet, but Murdock refused and the struggle continued.
The intruder again ordered Murdock to get into a closet, saying that he wanted to leave. This time Murdock complied. But fearing that the intruder would get a weapon and renew the assault, Murdock remained in the closet for only a few moments before bolting out and running down the hallway in an attempt to escape. The intruder appeared behind Murdock, yelling and chasing him. Murdock ran through an open French door, and pulled the door closed behind him. Murdock heard a "substantial sound" as the intruder ran into the closed door. Despite this, the intruder caught up to Murdock and tackled him from behind. Sometime during this struggle, Murdock tore a section from the front of the intruder's shirt. Eventually, both men became exhausted and stood apart, facing each other. Murdock said, "You go that way, I'll go this way," and the intruder finally left. Murdock went out to his garage, retrieved a handgun, went back inside the house, and called 911. When the police arrived, Murdock described the intruder as an African-American male, 5' 8" tall, 160 pounds, medium build, wearing a torn gray shirt and dark pants, wire frame glasses with oval lenses, and possibly bleeding from the head. Murdock was taken to the emergency room with an injured right eye, punctured lip, bloody nose, abrasions on his forehead and legs, and bites on his arm and back. Police searched the home and discovered a bag containing jewelry belonging to Murdock that had been taken from the bedroom dresser, and some dollar bills on the floor of the master bedroom. Police took Murdock's bloody shirt into evidence, and took swabs from blood found on the floor of the home. Murdock gave a sample of blood for comparison purposes.
The police also interviewed Philip Relnick, a neighbor of Murdock's who lived a few houses down the street. Relnick said that earlier that afternoon, an African-American man knocked on Relnick's door and offered to do yard work. Relnick said that he might need help in the future, and the man gave Relnick a business card with the name "Priestley Thompson" printed on it, along with a photograph and contact information. The card depicted Thompson as an aspiring singer. Relnick described the man as approximately 35 years old, 5' 8", 150 lbs., short dark hair, black eyes, blue slacks and shirt, and wearing glasses with flat, oval lenses and separate lenses on the sides. Relnick said that the man was driving a blue or green small sedan, although Relnick's wife later said that she thought the car was red. About 20-minutes after the man left, Relnick's wife learned from neighbors that Murdock had just been attacked in his home by a burglar who was thought to be an African-American male. Using the name from the business card given to Relnick, King County Detective Greg Silcox prepared a photomontage containing a 1996 photograph of Priestley Thompson in the lower right corner. On August 11, 1999, the day after the assault, Silcox showed the montage to both Relnick and Murdock. Relnick was unable to identify anyone in the photomontage as the person who offered to do yard work. Relnick subsequently testified that Silcox then pointed to Thompson's photograph and told Relnick that this was the suspect. Relnick nevertheless responded that the photograph did not look like the man who stopped by and left the business card. Similarly, Murdock was unable to make a positive identification, although he narrowed the possibilities down to Thompson and one other individual. Murdock subsequently testified that after Murdock indicated that he could not definitively choose anyone, Silcox pointed Thompson's photograph out to him.
The police learned that Priestley Thompson was living with his wife Teresa Thompson and his mother-in-law Laara Fox. Ms. Fox told police that Thompson had recently come home with a small cut over his right eye, which he said he had sustained at work. Ms. Fox also said that Thompson was an aspiring singer and had previously been employed doing yard work. Ms. Fox showed Detective Silcox a recent photo of Thompson, and Silcox realized that Thompson looked considerably different in that photograph from the 1996 photo used in the photomontage.
The police returned to Thompson's home on August 20, 1999, with a search warrant. They found business cards like the one given to Relnick, but nothing else of evidentiary value. They also searched a blue Honda parked at the residence, but found nothing significant. The police later learned that Thompson actually drove a red car, but did not seek a warrant to search it. Later that same day, police arrested Thompson at his workplace in Auburn, Washington, and a medical technician took a sample of Thompson's blood, as was authorized by the search warrant. They attempted to take photographs of the cut over Thompson's eye, but he repeatedly turned his head away. DNA tests were run on samples of blood taken from Murdock's shirt and compared with the DNA in the blood samples taken from Murdock and Thompson.
A State forensic scientist determined that blood on the shoulder of Murdock's shirt belonged to Murdock, but that the blood on the back of the shirt did not. The scientist subsequently testified that the DNA from the back of the shirt was consistent with that of Thompson, and that a match between the blood on the back of the shirt and Thompson's blood would statistically occur approximately 1 in 1,400 times in a random sample of African-Americans. Two weeks after the assault, Detective Silcox prepared a second photomontage, this time using the booking photograph of Thompson taken at the time of his arrest. Murdock quickly selected Priestley Thompson as his assailant. Relnick did not see the second photomontage until trial, where he testified that he was 90 percent sure that Thompson was the person who had come to his door. Thompson was charged with one count of burglary in the first degree, in violation of RCW 9A.52.020. A jury convicted Thompson, and the court imposed a standard range sentence. This court consolidated Thomson's direct appeal with his post-trial personal restraint petitions.
DISCUSSION
Direct Appeal
I
An out-of-court photographic identification violates due process when it is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. Unites States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Linares, 98 Wn. App. 397, 400, 989 P.2d 591 (1999), review denied, 140 Wn.2d 1027 (2000). Thompson argues that when the investigating detective pointed out Thompson's photograph in the first photomontage to Murdock and Relnick after they were unable to identify Thompson, the detective tainted their memories, giving rise to a substantial likelihood of irreparable misidentification in the second photomontage and at the trial. Thompson further asserts that the second montage is impermissibly suggestive in and of itself because he is the only individual pictured in the montage wearing glasses similar to those previously described by Murdock and Relnick, and because he is the only individual common to both montages. Thompson contends that the standard of review for police identification procedures is de novo, citing State v. Rogers, 44 Wn. App. 510, 515, 722 P.2d 1349 (1986). See also State v. Taylor, 50 Wn. App. 481, 485, 749 P.2d 181 (1988). But in State v. Kinard, 109 Wn. App. 428, 431-32, 36 P.3d 573 (2001), review denied, 146 Wn.2d 1022 (2002) Judge Sweeney, writing for Division Three of this court, correctly observed that the rationale of those cases was undercut by our Supreme Court's decision in State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994). Accordingly, we review the trial court's decision regarding admissibility of a photomontage identification for abuse of discretion.
The initial inquiry as to whether an identification procedure is flawed is whether the procedure was "impermissibly suggestive." Linares, 98 Wn. App. at 401. A procedure is suggestive if it "directs attention to a particular photo." State v. Eacret, 94 Wn. App. 282, 283, 971 P.2d 109 (1999). "Generally, courts have found montages impermissibly suggestive only when the defendant is the sole possible choice in light of the witness's earlier description." State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343, review denied, 146 Wn.2d 1022 (2002).
The State properly concedes that the detective's actions with regard to the first montage "raises the possibility of suggestiveness." The State also acknowledges that Thompson was the only person pictured in both montages. But the State argues that the difference in the nature and quality of the photographs in the first and second montages, along with the differences in age and hairstyle of Thompson in the two photos, weighs heavily against a finding that the procedure was impermissibly suggestive. The State also asserts that eyeglasses are not an immutable characteristic and, as a result, the fact that Thompson is the only person in the second montage wearing glasses matching those described by Relnick and Murdock does not make him the only possible choice, given the witnesses' earlier descriptions. Thompson has met his burden of showing that the detective's conduct in pointing out Thompson's photograph to Murdock and Relnick was impermissibly suggestive. This does not end the inquiry. We must also consider whether the trial court properly found that there were sufficient indicia of reliability in the identification procedure to overcome the suggestiveness. Factors to consider in determining witness reliability include the opportunity to view the perpetrator, the degree of attention, the accuracy of the witness's prior description, the level of certainty demonstrated at the identification, and the time span of the identification process. State v. Maupin, 63 Wn. App. 887, 897, 822 P.2d 355 (1992), citing Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L. E.2d 140 (1977).
In State v. Traweek, the court held that a lineup identification was reliable even though the victim of the assault described his assailant as a blond man and the defendant was the only blond participant in the lineup. State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986), disapproved on other grounds by State v. Blair, 117 Wn.2d 479, 491, 816 P.2d 718 (1991).
The court concluded that the victim's identification was reliable based on the fact that she got a good look at her assailant, her description was accurate, and she identified the defendant in the lineup less than 48 hours after the incident. Traweek, 43 Wn. App. at 103. Similarly, the court found sufficient indicia of witness reliability in State v. Burrell, 28 Wn. App. 606, 611, 625 P.2d 726 (1981) where the witnesses had an adequate opportunity to view the defendant, their descriptions were accurate, and each identified the defendant within four days of the incident.
In contrast, in State v. McDonald, 40 Wn. App. 743, 746, 700 P.2d 327 (1985) the witness pointed out the wrong individual in a lineup. Upon being told by the detective in the case which person was the suspect, the witness stated that it was a "toss-up" between the person he identified and the suspect, and that his decision was based on the fact that the person he chose appeared to be more nervous. We noted that in addition to having picked the wrong person in the lineup, the witness did not accurately describe the clothes the assailant was wearing and did not observe the assailant closely enough to even determine whether the assailant had a mustache. Id. at 747.
In this case, the record shows that both Relnick and Murdock observed the suspect at close proximity over a considerable period of time. The descriptions provided by Relnick and Murdock closely matched each other and that of Thompson. Neither Relnick nor Murdock was able to identify Thompson in the first montage, and neither changed his mind about not being able to identify a suspect even after the detective pointed out Thompson's photograph.
The photographs of Thompson used for the montages were taken at least three years apart. Having viewed the montages ourselves, and having had difficulty identifying Thompson as depicted in the second montage as being the same man depicted in the first montage, we cannot fault the trial court for concluding that the detective's conduct in pointing out the suspect to Murdock and Relnick did not impermissibly taint the subsequent identifications in this particular case. Murdock identified Thompson in the second montage with absolute certainty, and Relnick identified Thompson in court with great certainty, whereas they both failed to identify him in the first photomontage, and did not change their minds after the detective pointed out Thompson's photo in the first montage. Although Thompson's eyeglasses were quite distinctive, the men in more than one of the photographs were wearing glasses with rounded lenses. Moreover, several of the men depicted bore a slight resemblance to each other and to Thompson. We reject the contention that the second photomontage was impermissibly suggestive in and of itself. And because substantial evidence supports the trial court's rulings regarding the identification procedures used, we find no abuse of discretion. .
We are well aware of scholastic research regarding the fallibility of human memory, the ease with which improper police procedures can influence eyewitness identifications, and the danger of wrongful convictions based on eyewitness testimony that has been tainted by improper police procedures. .
We strongly disapprove of Detective Silcox having pointed out Thompson's photograph in the first montage to the witnesses when they were unable to identify a suspect. Our decision likely would be different but for the fact that Thompson as depicted in the first montage could easily be a different person from Thompson as depicted in the booking photograph. On these facts, we affirm the trial court's exercise of discretion.
II
A criminal defendant has a constitutional right to present a defense consisting of relevant and admissible evidence. State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). Murdock testified that the intruder told him that he needed money to buy drugs. Thompson asserts that the trial court violated his right to present relevant evidence supporting his theory of the case (mistaken identity) when the court excluded evidence that he had passed a workplace drug test a few months before the crime. Thompson argues that the fact that he passed the test was relevant in that it made it less likely that he was addicted to drugs at the time of the crime, and therefore less likely that he was the burglar — who told Murdock that he needed money to buy drugs.
Evidence is relevant if it has "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.
A trial court's decision on the admissibility and relevance of evidence is reviewed for abuse of discretion. State v. Lynch, 58 Wn. App. 83, 87, 792 P.2d 167 (1990); ER 401. Even if a trial court abused its discretion by failing to admit relevant evidence, reversal is not required if the appellate court is convinced beyond a reasonable doubt that the error was harmless. Maupin, 128 Wn.2d at 928-29. The inquiry turns on whether "any reasonable jury would have reached the same result in the absence of the error." Id. Thompson's employer testified for the defense that in order to be hired, an employee had to take and pass a drug test. Defense counsel asked the employer whether Thompson took the test before he was hired and the employer answered yes. Counsel then asked whether Thompson passed the test. The State objected on the basis of relevance, and the trial court affirmed the objection. Defense counsel then asked whether the employer had hired Thompson, and the employer answered yes. By this means, Thompson was able to get evidence raising a very strong inference that Thompson passed the drug test before the jury. Assuming without holding that the trial court erred in rejecting the direct testimony that Thompson passed the test, the error was harmless beyond a reasonable doubt because the jury received the essentially same evidence a different way. For this reason, Thompson's constitutional right to present a defense was not violated, even if the trial court's ruling on the State's objection might have been incorrect.
III
"The State bears the entire burden of proving each element of its case beyond a reasonable doubt." Traweek, 43 Wn. App. at 107, citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The prosecutor asked the State's DNA expert if the Washington State Patrol Crime Laboratory uses all of a blood sample when conducting its tests. The expert testified, over a defense objection, that it is the general policy of the Laboratory not to consume the entire DNA sample being tested. The expert explained that the policy is in place so that the Laboratory or other individuals involved in the case, including defense counsel, can use the remaining half of the sample for additional or confirmatory testing. Thompson argues that this testimony should have been excluded because it improperly shifted the burden of proof by implying that Thompson had a duty to retest the blood samples.
The State asked these questions during re-direct examination following repeated questions by defense counsel regarding the Laboratory's error rate, quality control procedures, and test results in an obvious effort to cast doubt upon the reliability of the State's DNA evidence. The State asserts that defense counsel thereby opened the door to the testimony, and we agree.
In State v. Gentry, 125 Wn.2d 570, 595-96, 888 P.2d 1105 (1995) the Washington Supreme Court concluded that the defendant failed to show impropriety or prejudice from a prosecutor's questioning of a witness and comment during closing related to the failure of the defense to call a witness or bring forward test results showing that the State's DNA test results were inaccurate. The court stated, "While it is questionable whether asking scientific experts whether they did, or could have, conducted duplicate testing is error at all, in this case any possible error in confusing the jury as to the burden of proof was cured by the trial court's simultaneous curative instructions. Id. at 595, citing State v. Jobe, 486 N.W.2d 407, 418 (Minn. 1992) (holding no impermissible shift in burden upon similar question of expert witness); see also State ex rel. McDougall v. Corcoran, 735 P.2d 767, 770 (Ariz. 1987) (holding, "Even where the defendant does not take the stand, the prosecutor may properly comment on the defendant's failure to present exculpatory evidence which would substantiate defendant's story, as long as it does not constitute a comment on defendant's silence.").
The Gentry court also cited State v. Bebb, in which the court stated:
A prosecutor can comment on the accused's failure to present evidence on a particular issue if persons other than the accused or his spouse could have testified for him on that issue. Here, Mr. Bebb could have produced a handwriting expert or even a lay witness familiar with his handwriting to rebut the State's expert testimony.
State v. Bebb, 44 Wn. App. 803, 815-16, 723 P.2d 512 (1986), aff'd, 108 Wn.2d 515 (1987) (citations omitted).
Thompson's jury was properly instructed that the State bore the burden of proof. We see no burden shifting here.
IV
Thompson argues that the trial judge violated Article IV, sec. 16 of the Washington Constitution when, in response to defense counsel's request to admit exhibits related to DNA testing, the judge stated, in admitting the evidence: "I'm just not sure what all this adds to everything, but that's fine." Thompson contends that the comment implied that the exhibits, and indeed defense counsel's entire cross-examination challenging the DNA evidence, was nothing more than a waste of time.
A statement constitutes a comment on the evidence "if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). "The determination of whether a comment on the evidence is improper depends on the facts and circumstances in each case." State v. Eaker, 113 Wn. App. 111, 117-18, 53 P.3d 37 (2002), review denied, 149 Wn.2d 1003 (2003). The purpose of prohibiting such comments is to prevent the judge's opinion from influencing the jury's verdict. State v. Lane, 125 Wn.2d at 838. "Once it has been demonstrated that a trial judge's conduct or remarks constitute a comment on the evidence, a reviewing court will presume the comments were prejudicial." Id. The State must show that no prejudice resulted to the defendant. Id.
In Lane, the trial court made a statement directly to the jury regarding the reasons for the early release from jail of a cooperating State's witness. The witness had testified for the State, providing evidence of statements by the defendants that supported the element of premeditation, and the reason for the witness's early release from jail was a disputed issue of fact. The Washington Supreme Court held that the trial judge's comments were impermissible, but that the constitutional error could not have influenced the jury. Id. at 840-41. Here, it is apparent from the context of the judge's comment that the "truth value" of the exhibits submitted by defense counsel was not being questioned by the court. Rather, the judge questioned, rhetorically, whether admitting the exhibits into evidence was necessary in light of the testimony and evidence already presented by defense counsel. A jury is the sole judge of the weight of relevant evidence, under ER 403, but the court may exclude relevant evidence that is cumulative. A judicial statement that does nothing more than suggest that evidence might be cumulative and repetitious does not constitute a prohibited comment on the evidence. See State v. Nesteby, 17 Wn. App. 18, 22, 560 P.2d 364 (1977). See also State v. Newell, 148 Wn. 82, 85-86, 268 P. 130 (1928).
The judge's remark here did not imply that the exhibits were without value, but merely that they seemed to be cumulative. Accordingly, we find no error.
V
Thompson contends that the prosecutor committed misconduct in closing argument by stating, "And make no mistake about it, if you believe Mr. Murdock beyond a reasonable doubt, you need look no further and you must convict the defendant." Thompson asserts that the statement sets up a false choice and was so flagrant and ill-intentioned as to require a reversal of his conviction, despite that there was no objection at the time the argument was made.
Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). Thompson's failure to object to the prosecutor's remark constitutes a waiver of the alleged misconduct "unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
In State v. Barrow, 60 Wn. App. 869, 809 P.2d 209 (1991) the prosecutor argued in closing that by giving contradictory testimony, Barrow was, in effect, calling the State's witnesses liars. Id. at 875. This court held that the prosecutor's argument was an improper mischaracterization of the defendant's testimony and that it ignored the possibility that the officers could simply have been mistaken. Id. The court also found improper the prosecutor's argument that, in order to find the defendant not guilty, the jury had to believe the defendant's testimony and completely disbelieve the officers' testimony. Id. at 874-75. The court held that the prosecutor misstated the jury's duty to return a verdict, reasoning that the jurors did not need to completely disbelieve the officers' testimony in order to acquit Barrow, but instead merely to entertain a reasonable doubt. Id. at 875-76. But the court held that a curative instruction could have obviated any prejudice engendered by the prosecutor's remarks and there was not a substantial likelihood that the comments affected the jury's verdict. Id. at 876-77.
In State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996) this court repeated that it is "misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken." The court stated that such arguments misstate the law and misrepresent both the role of the jury and the burden of proof by improperly shifting the burden to the defendant to disprove the State's case. Id. at 213 ("The jury would not have had to find that D.S. was mistaken or lying in order to acquit; instead, it was required to acquit unless it had an abiding conviction in the truth of her testimony."). While it is clearly improper to argue that to acquit a defendant the jury must find that the State's witnesses are lying, or that they are lying or mistaken, where, as here, the State argues that to convict the defendant the jury must find that the victim who identified the defendant as the assailant is telling the truth beyond a reasonable doubt, there is no error. The jury has a duty to acquit unless it has an abiding conviction of the truth of the State's evidence. There was no misconduct here.
VI
Thompson argues that the cumulative effect of errors at his trial deprived him of his constitutional right to a fair trial. The cumulative effect of errors occurring at trial may support the grant of a new trial, even if none of the errors standing alone would justify a new trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The only potential error that we have identified was harmless beyond a reasonable doubt. There was no cumulative error.
VII
In his pro se supplemental brief, Thompson contends that the investigating detective, Detective Silcox, violated his right to due process and equal protection of the law by both requesting the search warrant and executing the search of Thompson's residence pursuant to the search warrant. In support of his contention, Thompson misinterprets State v. Hill, 17 Wn. App. 678, 564 P.2d 841 (1977). There, the defendant challenged whether a pro tem district court judge who signed a search warrant was a neutral and detached magistrate because the pro tem judge also served as an attorney for a nearby city. He was not an attorney for the city of Yakima, which was prosecuting the case. In rejecting the contention, the court said:
It is clear where the determination of probable cause and issuance of a search warrant is made by a policeman or prosecutor involved in the investigation and/or prosecution of the defendant, the search warrant is violative of the constitutional requirement that probable cause be drawn by a neutral and detached magistrate. Here, this per se disqualification rule does not apply. [The pro tem judge] was not a prosecutor or policeman involved in the present case with the Yakima Police Department. Defendant has made no independent showing that the pro tem judge was in fact biased or prejudiced. We find that he was a neutral and detached magistrate and issued a valid warrant.
Hill, 17 Wn. App. at 683 (citations omitted).
Hill does not stand for the proposition that the same police detective who sought and obtained a search warrant cannot also execute the warrant, and we reject Thompson's pre se contention to the contrary. To "execute" a warrant does not mean to sign it — a magistrate "issues" a warrant by signing it and the police "execute" the warrant by serving it. Thompson apparently misunderstands the use of these words in legal parlance.
VIII
In his pro se supplemental brief, Thompson also contends that he was wrongfully convicted based on perjured testimony. Mr. Relnick testified that Detective Silcox pointed out Thompson's picture in the first photomontage after Relnick could not identify a suspect. Mr. Murdock testified that Detective Silcox also pointed out Thompson's picture when he could not identify a suspect during the first montage. Detective Silcox testified that it was possible that he had pointed out Thompson's picture as the suspect, but that such a procedure was not part of his training, was not a practice that he routinely followed, and he could not recall having done so in this particular case. Thompson argues that Detective Silcox's testimony was "clearly" perjured and there is a reasonable likelihood that the testimony could have affected the jury's verdict.
"A person is guilty of perjury in the first degree if in any official proceeding he makes a materially false statement which he knows to be false under an oath required or authorized by law." RCW 9A.72.020(1). The requirements of proof in a perjury case are more stringent than those in any other area of law except treason. State v. Olson, 92 Wn.2d 134, 136, 594 P.2d 1337 (1979). Testimony does not constitute perjury if it is "literally, technically, or legally true." Olson, 92 Wn.2d at 137. Even an evasive answer intended to be misleading cannot constitute perjury if literally true. Id. at 138.
Detective Silcox testified that it was "possible" that he pointed out Thompson as the suspect to Relnick and Murdock, but he could not recall having done so. There is no contradictory evidence in the record indicating that Detective Silcox did recall having done so. Moreover, Detective Silcox's recollection was not a material issue in the case. What was material was whether he did in fact point out Thompson's photograph and if so, whether that tainted the subsequent identifications made by Relnick and Murdock — not whether the detective recalled having done so. The jury heard all this testimony and could weigh the credibility of the witnesses accordingly. We reject Thompson's contention.
IX
In ruling on Thompson's pretrial motion to dismiss for a speedy trial violation, Judge Mertel stated:
[A]s I sit here right now and I've tried to . . . understand what all of the issues [Presiding Judge Spearman] would have been dealing with, I don't know how I personally would have moved any faster than he did in coming to grips with replacement counsel. . . . [W]hen I combine that with the complexities of this case, multiple witnesses, DNA issues, delays we all know that exist in these crime labs . . . and the need for you, by the same token, to get yourself DNA expertise . . . I don't know that I could have moved any faster than Judge Spearman in making the initial leap from [defendant's original counsel] to [defendant's current counsel]. . . particularly when I would be faced with, as he was, [the defendant] saying, I want a new counsel, but I don't want any changes in my trial date. I think that put him in a real [bind][.]
3 Report of Proceedings at 62. Thompson contends that this statement violates Article IV, sec. 28 of the Washington Constitution, which states that every judge must impartially discharge the duties of judge to the best of his ability. Thompson also contends that the statement violates the Code of Judicial Conduct, arguing that the statement was a personal statement offered in the course of his official duties.
We disagree that the comments violate the Constitution or the Code of Judicial Conduct. Judge Mertel was merely explaining why he was declining to second-guess an earlier ruling by a different judge, and why he was denying Thompson's motion. Moreover, the hearing took place outside the presence of the jury, and could not have affected the outcome of the trial.
X
Thompson filed his pro se supplemental brief on December 17, 2001, and the State made a timely response in February 2002 On March 1, 2002, Thompson filed a document entitled "ADDENDUM TO PRO SE SUPPLEMENTAL BRIEF OF APPELLANT: Appellant's Pro Se Reply to Respondent's Brief." A review of this document reveals that it is intended as a reply to the State's response to the pro se supplemental brief. But former RAP 10.1(d) which was in effect when Thompson was permitted to file his pro se supplemental brief (and which has since been amended to eliminate pro se supplemental briefs in favor of a different procedure that is not here relevant) did not permit a pro se defendant who is represented by appointed counsel to reply to the State's responsive brief.
On March 19, 2002, Thompson filed another document entitled "ADDENDUM TO PRO SE REPLY, TO STATE'S RESPONSE TO PRO SE SUPPLEMENTAL BRIEF." And on April 30, 2002, Thompson filed a document entitled "PRO SE REPLY BRIEF OF APPELLANT." In these documents, Thompson attempts to raise new issues that he failed to raise in his pro se supplemental brief.
Under RAP 10.1, an appellant is entitled to file "a brief of appellant" and "a reply brief of appellant." RAP 10.1(b). A defendant in a criminal case, acting pro se, may, in addition to the briefs filed by his counsel, file "a brief supplementing the brief filed by the defendant/appellant's counsel[.]" RAP 10.1(d). "The appellate court may in a particular case, on its own motion or on motion of a party, authorize or direct the filing of briefs on the merits other than those listed in [the] rule." RAP 10.1(h). There is no constitutional right that authorizes a pro se defendant who is represented by counsel to file a pro se brief of any kind. State v. Romero, 95 Wn. App. 323, 327, 975 P.2d 564 (1999). This court has not authorized Thompson to file a reply brief nor any of the addenda raising new issues that he has filed in connection with this appeal. We strike those briefs and decline to consider the new issues raised therein.
In sum, we reject Thompson's direct appeal and affirm his judgment and sentence. Personal Restraint Petitions Prior to trial, Thompson filed a writ of habeas corpus in Superior Court, which was transferred to this court, redesignated a personal restraint petition, and dismissed by this court. The Supreme Court denied discretionary review. We will refer to this as Thompson's "first" petition. In it, Thompson claimed that his right to speedy trial had been violated when the presiding judge granted a continuance to allow newly appointed counsel time to prepare for trial. Post-trial, Thompson filed a writ of habeas corpus in Superior Court, which was also transferred to this court and consolidated with Thompson's direct appeal as a personal restraint petition. This is the primary petition now before us. We will refer to this as Thompson's "second" petition. In it, Thompson claims (1) that the affidavit in support of the search warrant (a) contained false and misleading statements and omissions, (b) failed to show probable cause for the search, (c) that items were seized beyond the scope of the warrant, (d) that the warrant was unlawfully executed outside King County, and (e) that the affidavit for the search warrant was improperly sworn; (2) that he was wrongfully arrested outside King County and that there was no probable cause for his arrest; and (3) that the charging documents contain false and misleading statements and omissions, and that he was unlawfully booked into the jail. Thompson also filed an "Amendment to Petition for a Writ of Habeas Corpus, which we will refer to as the first amendment to the second petition. In it, Thompson contends that this court improperly consolidated the second petition with the direct appeal.
Then, Thompson filed his second amendment to the personal restraint petition. In it, Thompson claims that the State withheld evidence relating to blood samples, and that his DNA does not match the blood found on the back of Murdock's shirt.
Finally, Thompson filed a document in Superior Court entitled "Motion for Relief from Judgment." This motion was transferred to this court for consideration as a personal restraint petition and consolidated with his direct appeal. We will refer to this as Thompson's "third" personal restraint petition. In it, Thompson again claims that the State withheld evidence relating to blood samples, and that the DNA samples found on Murdock's shirt do not match his. Thompson also complains that a defense DNA investigator worked with both the public defender who was subsequently relieved of the obligation to defend him, and with the private attorney who was subsequently appointed to represent him — Thompson seems to characterize this as a conflict of interest. And finally he complains that public funds were improperly disbursed to defense experts who were retained to assist defense counsel in evaluating the State's DNA evidence.
The State contends that Thompson's second petition, his first and second amendments to the second petition and the third petition should be dismissed under RCW 10.73.140 and RAP 16.4(d) as prohibited successive petitions.
RCW 10.73.140 provides:
If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition. Upon receipt of a personal restraint petition, the court of appeals shall review the petition and determine whether the person has previously filed a petition or petitions and if so, compare them. If upon review, the court of appeals finds that the petitioner has previously raised the same grounds for review, or that the petitioner has failed to show good cause why the ground was not raised earlier, the court of appeals shall dismiss the petition on its own motion without requiring the state to respond to the petition. Upon receipt of a first or subsequent petition, the court of appeals shall, whenever possible, review the petition and determine if the petition is based on frivolous grounds. If frivolous, the court of appeals shall dismiss the petition on its own motion without first requiring the state to respond to the petition.
The predicate question, therefore, is whether Thompson "has previously filed a petition for personal restraint" under the statute.
In In re Becker, 143 Wn.2d 491, 495, 20 P.3d 409 (2001) the State argued that Becker's writ of habeas corpus/personal restraint petition was barred by the restrictions in RCW 10.73.140 against successive collateral attacks.
The Washington Supreme Court stated that the "principle underlying the rule barring successive collateral attacks is the need for judicial finality regarding claims that have already been adjudicated." Id. at 496. The court, using the definition of collateral attack contained in RCW 10.73.090(2) (the statute establishing a one-year time limit for collateral attack on a judgment), explained: "'Collateral attack' means any form of postconviction relief other than a direct appeal," including a habeas corpus petition. Becker, 143 Wn.2d at 496 (emphasis added). Thompson's first petition was not a collateral attack on his judgment or sentence because the petition was filed pretrial. But here, the State presents an interesting argument. While the Becker court applied the definition of collateral attack to postconviction petitions, the Court did not address whether a postconviction petition raising issues that could have been raised in a previously filed pretrial petition is likewise barred under RCW 10.73.140.
The Eighth Circuit Court of Appeals faced a similar situation in Palmer v. Clarke, 961 F.2d 771 (8th Cir. 1992). In Palmer, Palmer filed a pretrial habeas petition challenging his pending trial on double jeopardy grounds. After his conviction, Palmer filed a postconviction habeas petition. The State argued that Palmer's postconviction habeas petition should be dismissed because Palmer was required to assert all of his constitutional challenges in a single habeas action or be precluded from raising the additional claims in a later petition. Palmer, 961 F.2d at 774. The court concluded that Palmer could challenge his conviction and sentence in a later habeas petition because he did not and could not have challenged the legality his conviction and resulting sentence at the time he filed his pretrial petition. Id. at 774-75. The court explained that claims arising from Palmer's trial were unavailable when he filed his pretrial petition because the trial had not yet occurred. As a result, a new postconviction petition challenging his conviction would not constitute an abuse of the writ. Id. at 775.
The clear purpose behind RCW 10.73.140 is to limit collateral review. In re In re Personal Restraint Petition of Vazquez, 108 Wn. App. 307, 313, 31 P.3d 16 (2001). The language of the statute does not restrict its application to postconviction petitions; indeed, within the context of the purpose of the statute, there is no logical distinction between a pretrial petition and a postconviction petition where the same issue could have been raised in either instance. The overriding question is whether the petitioner, without good cause, has raised an issue that could have been raised in a previously filed petition.
In Thompson's first petition, he raised a single issue — an alleged speedy trial violation. In his second petition, he challenges the validity of the search warrant on several grounds, he challenges the validity of his arrest on several grounds, and he challenges the charging documents. All of these contentions could have been raised in the first petition because they relate to pretrial issues.
In the first amendment to the second petition, Thompson raises a contention that he could not have raised in the first petition — that is, that that the direct appeal and second personal restraint petition should not have been consolidated. However, a commissioner of this court has already decided that issue against Thompson, and properly so. We will not revisit the commissioner's ruling, and need not discuss the matter further here.
In the second amendment to the second petition, and again in the third petition, Thompson raises issues based on documents that he apparently obtained before, during and after trial — the exact chronology is not particularly clear from his submissions. The third petition was sent to the Superior Court in September 2001, shortly before Thompson's direct appeal was filed on October 5, 2001. To the extent that Thompson could not have raised the issues in the third petition at the time that he filed his first petition, he certainly could have raised them in the second petition or one of the amendments thereto — indeed, he raises some of the same issues in the second amendment to the second petition as are raised in the third petition. While the State's position has arguable merit, at least insofar as the first and second petitions are concerned, it is also apparent that the issue raised in the first petition — a violation of Thompson's speedy trial rights — could have been raised in a simple pretrial motion, instead of by way of a writ of habeas corpus, without risking Thompson's right to bring a single post-conviction collateral attack. Moreover, although we have consolidated Thompson's second and third petitions for consideration along with the direct appeal, for reasons of judicial economy, we have not appointed counsel to represent Thompson for purposes of any of the personal restraint petitions and addenda thereto that are now before us — based on our assessment that the petitions are either frivolous or can be determined solely on the record without oral argument. See RAP 16.11(b). Accordingly, we elect to save the State's issue for another day in another case where both sides are represented by counsel, and to reach the merits of Thompson's second petition, the second amendment thereto, and his largely repetitive third petition.
Our decision to reach the merits should not cause Thompson to believe that it is permissible to file numerous amendments to personal restraint petitions in the hope of circumventing the rules. Collateral attack by personal restraint petition is intended to raise new points of fact that were not, or could not have been raised in the principal action — that is, issues that could not have been resolved at trial or by way of direct appeal following trial. In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 388-89, 972 P.2d 1250 (1999). Moreover, purely conclusory or speculative allegations raised in a personal restraint petition will not be considered at all. In re Personal Restraint Petition of Teddington, 116 Wn.2d 761, 776, 808 P.2d 156 (1991). Search Warrant.
We have reviewed the affidavit in support of the warrant that was issued for the search of Thompson's home, person and automobile and which authorized his arrest. We reject Thompson's contention that the affidavit contains false and misleading statements. The affidavit contains the information given to the police detective who signed it, by the victim Murdock and his neighbor Relnick. The slight variations between the police reports regarding these witnesses' statements to police and the contents of the affidavit are not material. For example, the affidavit stated that the struggle between Murdock and the intruder lasted seven to ten minutes, whereas Murdock told the officers who responded to the 911 call that the struggle lasted five to seven minutes, and only later told Detective Silcox that the struggle lasted seven to ten minutes. The slight differences between these estimated elapses of time are not material to the question of probable cause. Neither are the slight variations in the descriptions of the suspect given to police material. Thompson is grasping at straws, and fails to meet the burden required of a personal restraint petitioner.
The affidavit, which essentially summarizes the information provided in the statement of facts for this opinion that ultimately led to Thompson's arrest, provides probable cause for the search of Thompson's home and car, for the extraction of a blood sample from his person for purpose of DNA comparison testing, and for his arrest. We also reject the contention that the affidavit is improperly sworn. While it does not contain the precise statutory language prescribed by RCW 9A.72.085(1) and (4) it was signed under oath before the issuing judge. The rules governing the execution and return of a search warrant are ministerial in nature. State v. Parker, 28 Wn. App. 425, 426, 626 P.2d 508 (1981). Absent a showing of prejudice to the defendant, and here there is none, procedural non-compliance does not compel invalidation of the warrant or suppression of its fruits. Neither was the search overly broad. In fact, it yielded little of evidentiary value other than the business card, which police already had received from Relnick, and the blood sample taken from Thompson's person.
The torn shirt worn by the intruder was never recovered. To the extent that Thompson may have driven his red car on the day of the burglary instead of his blue car, the red car was never searched.
The warrant was issued in King County, and executed in Snohomish County where Thompson was residing with his mother-in-law. Contrary to Thompson's contention, this does not invalidate the warrant. See RCW 10.93.070(5) (empowering peace officers to execute search warrants anywhere within the territorial bounds of the State of Washington).
Arrest
Thompson also complains that he was arrested outside King County, arguing that this invalidated his arrest. The record indicates that Thompson was arrested while at work. His workplace was located in the City of Auburn, which is inside King County. However, even if Thompson was working outside King County at the time of his arrest, the law enforcement authorities in every county of the state have signed a Mutual Aid Agreement permitting this. Moreover, the search warrant, which contained authorization to seize the person of Priestley Thompson, was addressed "To Any Peace Officer of the State of Washington." Charging Documents Thompson contends that the Statement of Probable Cause and Certification for Determination of Probable Cause contain misstatements and omissions; and that he was unlawfully booked into jail. The alleged misstatements and omissions are the same minor variances contained in the affidavit for the search warrant and are immaterial with respect to the question of probable cause to charge Thompson with the burglary. And because there was probable cause to arrest Thompson, he was properly booked into jail. DNA Testing In both his second and third petitions, Thompson raises the same claims of error regarding the DNA testing that linked him to the scene of the crime. First, he claims that the deputy prosecutor prevented the crime laboratory from testing what might have been exculpatory blood samples. Second, he claims that the actual results of the DNA tests do not match the results set forth in the laboratory report. Both of these claims are without merit.
The evidence from which Thompson erroneously concludes that the prosecutor suppressed evidence shows no such thing. Among the evidence taken to the crime laboratory were two Q-Tip swabs containing blood taken from the floor of Murdock's home. Murdock had bled profusely from injuries received when he was attacked. But there was blood on the back of the shirt he was wearing that did not appear to come from his own wounds or from the floor. The prosecutor told one of the forensic scientists that he did not know the source of collection of the Q-Tip swabs, but wanted the blood on the back of the shirt tested, and the scientist made a note of this request. Thompson contends that the Q-Tip swabs might have contained exculpatory evidence that the prosecutor wanted to suppress. Once again, Thompson is grasping at speculative and conclusory straws. Thompson seems to claim that because the same investigator, Susan Herrero, assisted both the public defender initially assigned to defend Thompson and the private attorney ultimately appointed to represent him, a conflict of interest occurred. But as explained to Thompson in a letter written by the private attorney who ultimately represented him:
Not only is Susan Herrero . . . the most knowledgeable defense DNA expert around (she teaches and assists defense attorneys local and all over the country), she is the person who taught me what I know about DNA. She has worked on most, if not all, of the significant DNA cases prosecuted in this state. Her primary purpose is to visit the DNA lab in question and identify any questionable practices or procedures used by the lab in a given case, as well as search the lab's paperwork for errors. Her work is done in conjunction with a defense molecular biologist who has expertise in DNA laboratory practices and procedures.
Appendix Y-7 to Thompson's third personal restraint petition. We reject Thompson's conflict of interest claim.
We also reject Thompson's claim that the DNA taken from the back of Murdock's shirt does not match Thompson's DNA. Thompson bases his conclusion on Trial Exhibits 54 and 55. Exhibit 54 is the crime laboratory report containing the results of the DNA examination. Exhibit 55 is the typing strip that contains the results of the DNA tests of Murdock's and Thompson's blood together with the results of DNA testing done for other, unrelated cases. Thompson has compared the results listed as items 1 and 2 of the typing strip and correctly observes that these two items do not match the DNA test results contained in Exhibit 54. This is because items 1 and 2 relate to a different investigation. Items 3 and 4 are the strips for the blood of Thompson and Murdock. This was explained during testimony of the forensic scientist during trial, Vol. 9 Report of Proceedings at 436-38.
Finally, Thompson contends that at least one of the DNA experts hired to assist with his defense was overpaid. Thompson does not explain how this contention, if true, relates to his conviction or would provide a basis for relief by way of a personal restraint petition. Nevertheless, the documents submitted by Thompson do not show that either of the DNA experts was overpaid. His attorney filed a declaration seeking approval for the expenditure of public funds to hire DNA experts — a molecular biologist and a population geneticist. And he also sought funds with which to hire a forensic consultant. The Administrator who approves such expenditures approved the expenditure of up to $4,650 for the molecular biologist and up to $4,375 for the population geneticist, based on these expert's estimates of the number of hours that would be required to cover their respective fees. And approval was also obtained to expend funds for the forensic consultant. These three experts each produced billings and were paid as follows: $4,375 to the population geneticist; $4,620 to the molecular biologist, and $3,099.92 (including $624.92 of out-of-pocket costs) to the forensic consultant. As it turned out, the DNA experts' findings were not helpful to Thompson, and defense counsel elected not to call either scientist to testify at the trial. Counsel also elected not to request either scientist to provide a written report. Accordingly, when Thompson asked his lawyer to provide him with copies of these experts' written reports, the lawyer told him that the reports did not exist, and explained why they did not exist. This may be part of the basis for Thompson's contention that the DNA scientists were overpaid. He also seems to question whether they actually worked the number of hours that they claimed would be necessary, but his submissions do not support that conclusion. The crux of Thompson's argument seems to be that the scientists and his attorney conspired to commit fraud regarding the DNA evidence in his case, a conclusion that is entirely unsupported by his submissions. To the contrary, the record of the trial demonstrates that counsel recognized that he would have to overcome the unfavorable DNA evidence in order to have any chance at all of obtaining an acquittal, and that he made a valiant though ultimately unsuccessful effort to overcome that evidence.
In sum, Thompson has failed to meet the burden required of a personal restraint petitioner in all of his post-conviction petitions. No reference hearing is necessary, in that each of his contentions can be, and has been, resolved based on the record of the trial and the submissions provided by Thompson and the State with respect to the personal restraint petitions.
We dismiss the personal restraint petitions together with all of the amendments thereto.
CONCLUSION
In the direct appeal, we affirm Thompson's judgment and sentence. We dismiss the personal restraint petitions together with all amendments thereto.
COX and BAKER, JJ. concur.