Opinion
No. 59240-8-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-05106-6, Douglass A. North, J., entered October 30, 2006.
Affirmed by unpublished opinion per Agid, J., concurred in by Ellington and Appelwick, JJ.
Hoai Vu appeals his conviction for possession of cocaine with intent to deliver. He contends that (1) he was deprived of a fair trial when his attorney charged a cell phone that had been admitted into evidence with a dead battery, reviewed the phone's call log and told the jury what he had found during closing argument; (2) the trial court erred by removing the battery from the cell phone and instructing the jury not to consider evidence about the call log; (3) the trial court erroneously admitted profile evidence and hearsay statements; (4) the accomplice instruction failed to specify the crime to which Vu had knowledge he was an accomplice; (5) his attorney was ineffective for failing to object to inadmissible evidence and the accomplice instruction; and (6) cumulative error deprived him of a fair trial. Because accessing the call log and commenting about it in closing did not make counsel a witness, the trial court properly instructed the jury not to consider evidence of the call log that was not admitted, Vu waived review of evidentiary errors, the accomplice instruction correctly stated the law, and Vu fails to show prejudice from his attorney's conduct, we affirm.
FACTS
In September 2003, Seattle police officer Brad Dupleich arrested Daniel Balder for possession of cocaine. Dupleich then offered Balder an opportunity to "work off" this drug charge by arranging a drug purchase from a known drug dealer. Balder agreed and provided Dupleich with the telephone number of a man he knew by the name of "Bo" or "Bobo," who would sell cocaine. Dupleich then dialed the number on his department-issued cell phone and held the phone so both he and Balder could hear the conversation. Someone answered the call, and Balder referred to that person as "Bobo." Balder asked him for $50 worth of "product," and the person told him to come up north and call when he was in the area. Balder and Dupleich were in the south end at the time and drove north. They stopped in North Seattle at Dick's drive-in on NE 45th St. and made another call to "Bobo." When Balder told him he was at Dick's, "Bobo" told him that it was too far and to come north on Aurora Avenue. They then drove north to the area of 105th and Aurora and pulled into a closed business parking lot. They called "Bobo" a third time, and Balder told him he was at the AM/PM minimart on 105th and Aurora. "Bobo" said he would be there in 10 minutes in a white car.
There was conflicting testimony about whether he said he would be driving or riding in the car.
Shortly after, a white car pulled into the AM/PM parking lot. There were four people in the car, and the person in the front passenger seat, Hoai Vu, exited the car. He looked around outside and then went quickly into the AM/PM store. He looked around inside the store, came back outside without buying anything, and got back into the car. The car left the parking lot, drove over a concrete barrier that separates traffic, and went down an alley.
Dupleich then alerted an arrest team to stop the car. Arrest team officers saw the passengers frantically moving inside the car. As they approached, they saw Vu reaching down and a back passenger reaching to the front. It appeared to the officers that Vu was trying to pass something to the female passenger sitting behind him. Police got all the passengers out of the car and searched Vu. They found a cell phone in his pocket and had Dupleich call the number he used to contact "Bo." When Dupleich dialed the number, Vu's cell phone rang and one of the officers answered the phone and spoke with Dupleich.
Police also searched the car with the help of a K-9 drug dog. They found a small, clear plastic baggy containing white chunks of cocaine and a crack pipe in the area near the shift lever, another crack pipe in the driver's door panel, and a plastic digital scale in the trunk. They also patted down the woman who was sitting behind Vu in the car, but found nothing. When a female officer began a strip search of the woman, she pulled from under her bra a package containing 38.7 grams of cocaine and threw it on the ground.
The State charged Vu with one count of possession of cocaine with intent to deliver. At trial, the court admitted the cell phone found in Vu's jacket. At the time it was admitted, the phone's battery was dead, and neither party introduced evidence about the call log or any other contents of the cell phone. During a break after the close of the evidence, defense counsel checked the cell phone and confirmed that it was not working. He then brought in a charger, turned the phone on, and accessed its call log. He did this in the presence of the court clerk, but not the prosecutor.
During closing argument, defense counsel argued that Dupleich's testimony was inconsistent with the phone log. Specifically, he stated that the call log did not show three calls from the same police number; rather it showed one call from 526-9495, which was the last received call, and then two calls before that from 526-9446, one of which was a missed call. The prosecutor objected, contending that this was not evidence admitted at trial. Counsel responded: "It's in the telephone," and the court stated: "The telephone is an exhibit." The prosecutor then stated that she would "reserve for rebuttal," and counsel proceeded with argument about the phone log.
He acknowledged that both numbers were police department phone numbers.
After defense counsel finished his closing argument, the parties conferred with the court outside the jury's presence and the State asked the court to instruct the jury to disregard all comments that defense counsel made in his closing argument about the phone's contents. The court granted the State's motion, ruling that because it was admitted as an inert phone, counsel changed the nature of the evidence by charging the phone and taking numbers from it. The court also noted that while it may have been proper to raise this evidence in a posttrial motion, it was improper to change the nature of evidence that had been admitted and to raise it in the middle of closing. The court then removed the battery and instructed the jury to disregard all contents of the phone that defense counsel commented on in closing.
The jury found Vu guilty as charged. Defense counsel moved to set aside the verdict under CrR 7.5 and CrR 7.8. The trial court denied the motion and imposed a standard range sentence of 30 months.
DISCUSSION
I. Counsel as Witness
Vu contends that once his attorney discovered new evidence about the call log and testified about it in closing argument, he crossed the line of advocacy and became a witness. Thus, Vu contends, his attorney was "ethically compromised" and left Vu "essentially without counsel during closing argument, a critical stage of the case." The State argues that counsel did not become a witness because no evidence of the call log was introduced at trial and his comments about the call log were not evidence. We agree.
The Sixth Amendment right to effective assistance of counsel requires that a defendant have an attorney free of conflicting interests. To show a violation of the Sixth Amendment right to counsel free from conflict, the defendant must demonstrate that his or her attorney had a conflict that adversely affected the attorney's performance. "'[A]n actual conflict of interest [means] precisely a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties.'"
State v. Myers, 86 Wn.2d 419, 424, 545 P.2d 538 (1976).
State v. Dhaliwal, 150 Wn.2d 559, 570, 79 P.3d 432 (2003).
Id. (quoting Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)) (emphasis omitted) (alterations in original) (internal quotation marks omitted).
Under the Rules of Professional Conduct (RPC), a lawyer generally cannot act as an advocate in a trial in which the lawyer is a necessary witness. If breach of this rule prevents a fair trial, a defendant is entitled to a new trial. But courts are reluctant to disqualify an attorney under RPC 3.7 and require that a motion for disqualification "'must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client.'"
RPC 3.7.
State v. Nation, 110 Wn. App. 651, 659, 41 P.3d 1204 (2002), review denied, 148 Wn.2d 1001 (2003).
Pub. Util. Dist. No. 1 v. Int'l Ins. Co., 124 Wn.2d 789, 812, 881 P.2d 1020 (1994) (quoting Cottonwood Estates, Inc. v. Paradise Builders, Inc., 128 Ariz. 99, 105, 624 P.2d 296 (1981)).
Here, Vu fails to demonstrate that his attorney was a witness and therefore created a conflict requiring his withdrawal. Defense counsel was never a witness nor was he ever contemplated as a witness. No evidence whatsoever had been offered about the cell phone's call log at any point during the trial; defense counsel brought it up for the first time during his comments in closing argument. And as the jury was instructed, the lawyers' comments do not constitute evidence. Thus, the trial court properly exercised its discretion by allowing defense counsel to remain as Vu's attorney and instructing the jury to disregard what were improper remarks about facts that were not in evidence.
The Ninth Circuit case law Vu relies on is distinguishable. Vu cites Mannhalt v. Reed, where the government's witness testified during a trial on charges of robbery and possession of stolen property that he sold stolen goods to defense counsel. During cross-examination of this witness, defense counsel asked about his alleged purchase of stolen property, offered his own unsworn testimony that the witness's accusation was false and asked his wife, a spectator at the trial, about the accusation. The court held that in his dual role as a lawyer and witness, the lawyer put himself in the position of arguing his own credibility and violated his client's Sixth Amendment right. But here, defense counsel never became a witness nor did his comments relate to his personal involvement with evidence that had been admitted at trial. Rather, he simply described an exhibit's contents that had never been admitted as evidence. Thus, he was not put in the position of arguing his own credibility at the expense of representing Vu, as was the case in Mannhalt.
847 F.2d 576 (9th Cir.), cert. denied, 488 U.S. 908 (1988).
Id. at 578.
Id. at 581-83.
Vu also cites United States v. Edwards, where the prosecutor searched a bag that had already been admitted into evidence, found a bail receipt that implicated the defendant and offered evidence of the receipt through police officers' testimony. The court reversed the conviction, holding that the prosecutor had improperly vouched for the officers' testimony. The court concluded that once the jury learned that the prosecutor found the receipt, its discovery would be attributed to the authority of the prosecutor's office. By putting the officers on the stand and asking them to testify to the circumstances under which the prosecutor found the evidence, the prosecutor implicitly vouched for the accuracy of their testimony. The court further noted that the defendant was unable to cross-examine the prosecutor about the circumstances under which he found the bail receipt. But unlike in Edwards, improper vouching was not at issue here. Defense counsel did not call any witnesses to testify about the call log or how he discovered it. And even if defense counsel's comments had amounted to vouching for this evidence, they only served to present evidence helpful to Vu. This was the opposite of the concern in Edwards, which was that the prosecutor's discovery of the evidence unfairly bolstered the evidence against the defendant. Thus, Edwards does not apply here.
154 F.3d 915 (9th Cir. 1998).
Id. at 917.
Id. at 922.
Id.
II. Ineffective Assistance of Counsel
Vu also contends that defense counsel's conduct amounts to ineffective assistance and requires reversal. Specifically, he argues that counsel's failure to investigate the cell phone's call log before trial and call a witness who could testify to its contents violated his right to have counsel conduct an adequate pretrial investigation. He also argues that counsel's personal investigation of the phone during trial, his comments about it during closing argument, and the resulting admonition by the court in front of the jury deprived him of effective assistance and adversely affected the trial's outcome.
To establish a claim of ineffective assistance of counsel, the defendant has the burden to show that (1) counsel's performance fell below a minimum objective standard of reasonableness and (2) that but for counsel's errors, there is a reasonable probability that the result would have been different. The defendant must establish both prongs to prevail on an ineffective assistance of counsel claim.
State v. West, 139 Wn.2d 37, 42, 983 P.2d 617 (1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
While reviewing courts presume that trial counsel is effective, that presumption may be overcome if counsel fails to investigate factual or legal defenses or to sufficiently investigate the facts to discover potential defenses. Here, counsel's failure to access and investigate the call log before trial was arguably ineffective, considering the ease with which this could have been done. Similarly, his personal investigation of the phone log during trial and his comments about the results of this investigation for the first time during closing argument amount to conduct that falls below an objective standard of reasonableness.
See State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302, review denied, 90 Wn.2d 1006 (1978).
But Vu fails to establish that this conduct impacted the outcome and warrants reversal. He notes that the only evidence connecting him to the drug deal was the phone found on Vu and Dupleich's testimony that he called Vu's phone to arrange the deal. He argues that counsel's failure to investigate the phone log strengthened this evidence. But even if counsel had properly investigated the phone's call log, it still would have linked Vu to the drugs. The call log revealed only that two calls instead of three came from the same police number and confirmed that a total of three calls were made from a police phone. Thus, this evidence still established that the police made calls to the phone found on Vu, regardless of whether the jury believed Dupleich was untruthful about how many calls he made and from which number he made them.
Vu's additional argument that the court's admonition of counsel destroyed his effectiveness in the jury's eyes is speculative and unsupported by the record. "Rebukes of an attorney within the presence of the jury are within the discretion of the trial court and do not warrant a reversal unless prejudice is shown." Prejudice may be presumed if the court's remark was reasonably calculated to have a prejudicial effect. In State v. Stamm, the court held that the trial court's remark that defense counsel improperly referred to the results of a plea bargain between the State and the witness as a "deal" was "merely a proper admonition within the discretion of the trial court." The court concluded that no prejudice was shown and could not be presumed. The record did not reveal any tendency by the court to favor the prosecution, and the remark did not reflect on the integrity of the defense counsel.
State v. Stamm, 16 Wn. App. 603, 615, 559 P.2d 1 (1976), review denied, 91 Wn.2d 1013 (1977).
State v. Whalon, 1 Wn. App. 785, 798, 464 P.2d 730, review denied, 78 Wn.2d 992 (1970).
16 Wn. App. 603, 615, 559 P.2d 1 (1976).
Id.
Here, the trial court instructed the jury as follows:
[Y]ou should disregard all of the contents of the phone that was brought up by Mr. Crowley's closing statements. The phone was admitted as an exhibit, but it was admitted in an inert form, with a dead battery, that had no information on it. And that was the basis on which both counsel were heading into closing argument. And it's improper to bring in the contents of the phone at this point. Disregard all contents of the phone.
Thus, as in Stamm, the trial court did not make a statement that actually reflected on counsel's integrity or revealed a tendency to favor the prosecution; it merely responded to improper behavior and properly acted to correct the proceedings. Indeed, the trial court's comments were minimally directed at defense counsel's conduct and focused more on instructing the jury about evidence it could properly consider.
Vu's reliance on State v. Whalon is misplaced. There, the trial court admonished defense counsel for expressing sympathy for a rape victim during his cross-examination of her. Even though it was done in response to similar questioning by the prosecutor, the court repeatedly scolded counsel, stating that it was "'predetermined by counsel.'" On appeal, the court held that the trial court's rebuke was "a serious overreaction" and amounted to accusing counsel of unethical conduct because the court said "in effect that [counsel] had planned his statement in an attempt to help his position with the jury." The court further noted that it was "probable that the attorney was without fault."
1 Wn. App. 785, 464 P.2d 730, review denied, 78 Wn.2d 992 (1970).
Id. at 797 (emphasis omitted).
Id. at 798.
Id. at 799.
But here, there was no question that counsel acted improperly, and the trial court's instruction that the jury disregard counsel's comments was not reasonably calculated to prejudice counsel. Rather, the court instructed the jury not to consider counsel's comments about the phone log because they improperly referred to facts that were not in evidence. The court's one reference to "improper" did not, as Vu suggests, destroy the effectiveness of counsel in the eyes of the jury such to deprive Vu of representation.
III. Jury Consideration of Cell Phone Contents
Vu also contends that the trial court incorrectly ruled that the phone was admitted in an "inert form" with a dead battery and had no information on it. Thus, he argues, the trial court erred by instructing the jury that it could not access its contents and to disregard counsel's comments about them. We disagree.
We review a trial court's decision about whether to give an exhibit to the jury during deliberations for an abuse of discretion. "'The trial judge is given the discretion to determine which exhibits shall go with the jury for good reasons. The judge has seen and heard the witnesses and is familiar with all the exhibits.'" Rule 6.15(e) of the Superior Court Criminal Rules provides when the jury retires for deliberation, it "shall take with it the instructions given, all exhibits received in evidence and a verdict form or forms." Once admitted into evidence, exhibits taken to the jury room may be used by the jury "'as it sees fit.'"
State v. Frazier, 99 Wn.2d 180, 190-91, 661 P.2d 126 (1983).
State v. Castellanos, 132 Wn.2d 94, 102, 935 P.2d 1353 (1997) (quoting State v. Snowden, 138 Ariz. 402, 675 P.2d 289, 291 (Ariz.App. 1983)).
State v. Elmore, 139 Wn.2d 250, 295, 985 P.2d 289 (1999) (quoting Castellanos, 132 Wn.2d at 97)), cert. denied, 531 U.S. 837 (2000).
Vu argues that the jury's examining the call log is no different from using a magnifying glass to examine physical evidence. But more than a visual examination is required to access the call log. Power is needed — whether from a charged battery or an outlet charger — and it is undisputed that there was no power on the phone when it was admitted. Thus, the jury was limited to physically examining the phone as it was admitted: without power and therefore without access to the phone log. The trial court did not err by ruling that the jury could only view the phone without the battery.
IV. Profile Testimony
Vu next claims that Dupleich and Officer Larry Longley testified to impermissible "profile" testimony that violated due process and his right to a jury trial. He points to Longley's testimony that "[a]lmost always the person delivering the drugs has a phone on them or next to their person," and that he never had a case where he arrested someone who had someone else's cell phone that was used in the "order up." He also cites Dupleich's testimony that drug dealers do not drive their own cars, so they can get in and out easily.
Vu acknowledges that he did not object to this testimony at trial, but he asserts that he may challenge this evidence for the first time on appeal because he raises a manifest constitutional error. But as the State correctly contends, any error in the admission of the testimony was simply an evidentiary error, and Vu provides no authority that admission of drug profile evidence is an error of constitutional magnitude. Rather, as our state Supreme Court has observed: "We have clearly rooted our rejection of profile testimony in ER 403, ER 702, and ER 703." Thus, Vu has failed to demonstrate an error of constitutional magnitude, much less one that is manifest, and has therefore waived review of this issue.
In re Detention of Thorell, 149 Wn.2d 724, 757, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004).
See RAP 2.5(a)(3); McFarland, 127 Wn.2d at 333 (citing State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988)).
V. Hearsay Statements
Vu also argues that by referring to Balder's statements, the officers testified to inadmissible hearsay and violated his constitutional right to confrontation. He acknowledges that he failed to object to this testimony at trial, but asserts that he may raise this issue for the first time on appeal because it implicates a manifest error of constitutional magnitude. The State contends that even if this testimony created confrontation problems, Vu fails to show that it was manifest constitutional error and had practical or identifiable effects on the outcome. We agree.
As noted above, we generally do not consider issues raised for the first time on appeal unless the claimed error is a "manifest error affecting a constitutional right." This exception "is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify some constitutional issue not raised before the trial court." The defendant must demonstrate that the alleged error was "manifest" and that, in the context of the trial, the alleged error actually affected the defendant's rights.
Id.
Id.
Here, the court ruled pre-trial that the drug seller's statements to Balder which Dupleich overheard on the phone were admissible as statements by a party-opponent. But the court also ruled that Balder's statements identifying Vu as the drug seller would be excluded as inadmissible hearsay. At trial, Balder did not testify, but Dupleich testified that he came into contact with Vu because Balder described him as someone who would sell drugs. Dupleich also testified that Balder provided a description of "Bo" and the car in which he was expected to arrive. Officer Longley also testified that Dupleich told him "Bo" was going to arrive at the AM/PM on Aurora and described the car he would be driving. Vu contends that these statements were based on the hearsay statements Balder made to Dupleich. Vu did not object to any of this testimony.
Vu fails to show that admission of this testimony was a manifest constitutional error he may raise for the first time on appeal. While these statements were clearly inadmissible hearsay and implicate the right to confrontation, he fails to show that this evidence had any practical or identifiable effect on the outcome. Even without this testimony, there was still sufficient evidence linking Vu to the drug deal.
Dupleich testified that when the calls were made, he dialed "Bo's" number and held the phone between him and Balder so he could hear the conversation. Dupleich also testified that he heard the person on the phone arrange to meet at the AM/PM and tell Balder he would be in a white car. On cross-examination, defense counsel asked Dupleich if Balder was negotiating with Bo where to meet and Dupleich testified that "it was more so the person on the other end of the line directing him where to go, the general vicinity where to go, because it sounded to me like it was inconvenient doing it at another location." Defense counsel then asked: "Then, based upon that conversation, apparently the agreed meeting location was at the AM/PM on 105th and Aurora?" and he responded, "Yes."
Dupleich also testified that he heard the person on the other end of the phone describe his car as "white." On cross-examination, defense counsel questioned Dupleich as follows:
Q[:] Is it also true that after you overheard these conversations [between Balder and Bo], you then conveyed this information to your fellow officers, in particular which vehicle the seller was driving?"
A[:] It wasn't until the third conversation. I mean, during the initial briefing, I had already described to the rest of the [arrest] team the vehicle that he most commonly arrives in. It wasn't until the third confirmation that the person on the other end of the line said that they were driving their white car.
Defense counsel also asked Dupleich: "Now, apparently you're sitting there on the street corner and you heard and then communicated to your fellow officers that Bo was driving a white vehicle; is that true?" and Dupleich responded, "Yes."
As the trial court previously ruled, these statements were admissible as admissions of a party-opponent. Thus, both the description of the car and location of the arranged deal were established by evidence other than Balder's hearsay statements, and any error in their admission did not have any practical effect on the outcome. Vu therefore fails to raise a manifest constitutional error warranting review.
VI. Accomplice Instruction
Vu also challenges the accomplice instruction which stated in relevant part:
A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of the crime.
(Emphasis added.)
He argues that it lessened the State's burden of proof by failing to state the specific crime to which he was an accomplice, relying on the Ninth Circuit's opinion in Sarausad v. Porter, which held that a similar accomplice instruction was ambiguous. The State argues that Sarausad is not binding and conflicts with Washington authority.
479 F.3d 671 (9th Cir. 2007), vacated in part, 503 F.3d 822 (9th Cir. 2007), cert. granted, Waddington v. Sarausad, 128 S. Ct. 1650, 170 L. Ed. 2d 352 (2008). That instruction stated:
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime, or
(2) aids or agrees to aid another person in planning or committing the crime.
Id. at 690 (emphasis omitted).
"Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." We review de novo a trial court's decision on a jury instruction based on ruling of law.
State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002).
State v. Souther, 100 Wn. App. 701, 708, 998 P.2d 350, review denied, 142 Wn.2d 1006 (2000).
Vu acknowledges that he did not object to the instruction at trial, but asserts that he may challenge it for the first time on appeal as a "manifest" error. But he does not provide any argument or authority that the claimed instructional error raises an error of constitutional magnitude, which must be established to raise an issue for the first time on appeal.
See RAP 2.5(a); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
Nonetheless, this argument lacks merit. Washington's accomplice liability statute provides that a person is an accomplice of another in the commission of a crime if he or she has knowledge that certain of his or her actions will promote or facilitate the commission of the crime. The accomplice instruction given here complies with the statute and established Washington precedent. As the court held in State v. Roberts: "an accomplice need not have knowledge of each element of the principal's crime in order to be convicted under RCW 9A.08.020. General knowledge of 'the crime' is sufficient." The court noted that the legislative history established that "the crime" means the charged offense. The Ninth Circuit's opinion in Sarausad conflicts with this precedent and is not binding on this court.
142 Wn.2d 471, 513, 14 P.3d 713 (2000).
Id. at 510-11.
VII. Failure To Object to Inadmissible Testimony and Accomplice Instruction
Vu further argues that he was denied effective assistance counsel by his attorney's failure to object to profile testimony, Balder's hearsay statements, and the accomplice instruction. But as discussed above, neither the profile testimony nor Balder's statements had any practical effect on the trial's outcome because there was other evidence that was sufficient to establish that Vu committed the charged crime. Nor did counsel commit any error by failing to object to the accomplice instruction because, as discussed above, it correctly stated the law. Thus, because Vu fails to establish either that his attorney's conduct was unreasonable or that it prejudiced the trial's outcome, his claim fails.
VII. Cumulative Error
Finally, Vu asserts that cumulative error deprived him a fair trial. But as discussed above, Vu established, at most, a few failings by counsel and minor evidentiary errors, none of which were shown to be prejudicial. His claim of "cumulative error" is therefore without basis.
We affirm the conviction.