COLEMAN, J.
Robert Durall appeals his conviction and exceptional sentence for premeditated first degree murder of his wife, Carolyn Durall. Through counsel, he contends that the stated reasons for the exceptional sentence — egregious and culpable mental state based upon planning and research, egregious lack of remorse, vulnerability and abuse of trust, and domestic violence — are not valid as a matter of law and not supported by the evidence. Pro se, he challenges his conviction on a number of grounds, including prosecutorial misconduct, improper evidentiary rulings, jury tampering, ineffective assistance of counsel, and violation of his rights to privacy, counsel, and religious freedom. Finding no error, we affirm.
DISCUSSION
An exceptional sentence may be imposed only where the trial court finds substantial and compelling reasons, set forth in written findings and conclusions, which support an exceptional sentence. RCW 9.94A.120(1). "A reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense." State v. Gore, 143 Wn.2d 288, 315-16, 21 P.3d 262 (2001). Gore summarized the standard of review for an exceptional sentence as follows:
In order to reverse an exceptional sentence, the reviewing court must find that (1) under a clearly erroneous standard there is insufficient evidence in the record to support the reasons for imposing an exceptional sentence, (2) as a matter of law an exceptional sentence is not justified by the reasons, or (3) under an abuse of discretion standard an exceptional sentence is clearly excessive.
Gore, 143 Wn.2d at 315.
Here, the trial court imposed an exceptional sentence of 560 months where the standard range was 240 to 320 months. The trial court expressly stated that each of the four reasons for the exceptional sentence would be sufficient on its own. Therefore, if any of the reasons are legally or factually valid, then Durall's sentence stands.
We conclude that at least three of the four reasons are valid and supported by the evidence. At oral argument, the State acknowledged that at least some of the trial court's findings were not sufficient to show that Carolyn Durall was particularly vulnerable at the time of the murder when home alone with her husband after she had consumed an alcoholic beverage. Accordingly, we decline to address this factor.
Durall first contends that planning is not a proper basis for imposing an exceptional sentence in a crime that already accounts for premeditation, regardless of the length of time premeditation occurs.
A high degree of planning and sophistication can justify an exceptional sentence, even for noneconomic crimes. State v. Baker, 40 Wn. App. 845, 848, 700 P.2d 1198 (1985) (holding that RCW 9.94A.390 (subsequently recodified as RCW 9.94A.535), the statute listing aggravating circumstances for major economic offenses, may be applied "when arriving at a proper sentence for any crime"). Specifically, planning and sophistication may support an exceptional sentence for premeditated first degree murder. State v. Wood, 57 Wn. App. 792, 790 P.2d 220 (1990). In Wood, this court held that an exceptional sentence was justified where the defendant's actions were "qualitatively and quantitatively different from the basic premeditation required for first degree murder." Wood, 57 Wn. App. at 801. The defendant's high degree of planning and sophistication, which consisted of multiple, detailed discussions over a one-year period regarding her plans to have her husband killed and her successful manipulation of others to commit this crime on her behalf, "[took] into account `factors other than those which are necessarily considered in computing the presumptive range for the offense.'" Wood, 57 Wn. App. at 801 (quoting State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986)).
Durall claims that Wood conflicts with our Supreme Court's decisions in Gore and State v. Dunaway, 109 Wn.2d 207, 218, 743 P.2d 1237 (1987), because these two cases overturned exceptional sentences after finding that the crimes were not committed with a high degree of planning and sophistication. Neither of those cases, however, precludes a trial court from imposing an exceptional sentence when the evidence shows a high degree of planning and sophistication. In Dunaway, the defendant shot a donut shop employee twice in the course of an armed robbery and then ran out of the store. Dunaway, 109 Wn.2d at 210. The court reasoned that these facts did not show planning or sophistication not otherwise accounted for in determining the standard range sentences for the crimes of robbery and attempted murder, which already included the element of premeditation.
In Gore, our Supreme Court held that "a high degree of sophistication or planning is necessary for the nonstatutory planning aggravator to justify an exceptional sentence." Gore, 143 Wn.2d at 321. The court then rejected the trial court's findings as insufficient to support an exceptional sentence based upon preparation and planning, explaining, "The findings in this case do not show the same degree of sophistication or planning as in these cases [State v. Vaughn, 83 Wn. App. 669, 924 P.2d 29 (1996) and State v. Vermillion, 66 Wn. App. 332, 832 P.2d 95 (1992)], nor does the planning and preparation here distinguish these crimes from many other rapes and attempted rapes." Gore, 143 Wn.2d at 321.
Wood does not conflict with Gore or Dunaway. All of these cases support the proposition that a high degree of planning can be a nonstatutory aggravating factor for the crime of premeditated first degree murder. The question here is whether Durall's planning distinguished his offense from other premeditated first degree murder cases. Based upon the criteria discussed in Wood, also a premeditated first degree murder case, the trial court concluded that it did. We agree.
In its conclusion that "Durall's mental state, including his research and planning of his wife's death, which preceded the murder for months, was qualitatively and quantitatively much more egregious and culpable than that required to prove meditated intent," the trial court relied upon the following facts: on several occasions during the months before Carolyn's murder, Durall conducted internet research on how to kill his wife; Durall stated in e-mails to women he met on an internet dating service that he dreaded the prospect of a divorce and he had "a plan" to resolve his unsatisfactory marriage; Durall met with one woman six months before Carolyn's murder and told her that it would be easier if his wife were dead; and Durall made a list of tasks and items needed for the crime. In addition, Durall took elaborate steps to cover up the crime, including hiring a private investigator, cleaning and concealing blood stains from the murder, disposing of his wife's body in a rural area, suggesting to police, friends, Carolyn's co-workers, and family that Carolyn had run off with another man, and concocting an alibi to comport to these facts.
Durall conducted searches using the following terms: "murder;" "kill spouse;" "accidental death;" "smothering;" "+poison +herbs;" "+poison +herbs +death;" and "sleep +pills +death."
As seen in Wood, the degree of Durall's planning and research distinguishes this case apart from more typical murder cases. Moreover, while the defendant in Wood used third parties to explore means of killing her husband, Durall's use of the internet to do the same suggests a similarly culpable mental state.
Qualitatively, Durall's actions are similar to those seen in State v. Vaughn, 83 Wn. App. 669, 924 P.2d 27 (1996), a case cited by both parties.
The crimes at issue in Vaughn were first degree kidnapping and rape of a child and the evidence showed that over a protracted period of time, the defendant conducted a detailed investigation of his victim, her family and neighborhood, and means of committing the crime. Vaughn, 83 Wn. App. at 380. After committing the crime, the defendant tried to create an alibi by modifying his computer records. This court sustained the exceptional sentence as justified in light of the exceptional degree of planning and affirmative steps taken over a protracted period of time. The defendant in Vaughn invested a great deal of time and effort into researching and setting up his crime, which distinguished it from the typical rape and kidnapping case. The Vaughn decision also demonstrates that involvement of third parties is not a prerequisite to find a high degree of planning and sophistication. Accordingly, we reject Durall's claim that Wood requires involvement of third parties. Although the trial court indicated that each factor alone would support the exceptional sentence, we examine the remaining factors.
In considering an exceptional sentence, the trial court may consider whether the current offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time. RCW 9.94A.020(h). Psychological abuse alone can support an exceptional sentence. State v. Osalde, 109 Wn. App. 94, 97, 34 P.3d 258 (2001).
The trial court found that Durall subjected Carolyn to a pattern of psychological abuse that constituted domestic violence, stating specifically, "the behaviors described in [Carolyn's writings] meet the modern definitions of domestic violence as a crime involving control over areas of one's life, including money, whereabouts, and so on." In support of this finding, the trial court cited testimony from Carolyn's friends and co-workers and from Carolyn's letters describing Durall's behavior toward Carolyn as controlling and extremely jealous. He forbade Carolyn from opening a separate bank account and seized a credit card she obtained individually. He monitored her phone calls, went through her wallet and private e-mail account, and tracked her movement by phoning friends and family and insisting that Carolyn remain at his side at social events. Carolyn also expressed fear both verbally and in writing of her husband's controlling, jealous behavior. For example, two weeks before her death, she told her co-workers, "If anything happens to me, my life is in my desk." In that desk, co-workers found letters and notes describing some of Durall's abusive and controlling behavior. She also planned on asking for a divorce in a public place.
We disagree with Durall's contention that this behavior was merely indicative of a dysfunctional relationship. Viewing the evidence as a whole under the clearly erroneous standard, the evidence is sufficient to sustain the trial court's finding that Durall's behavior constituted a pattern of psychological abuse, manifested by multiple incidents during his 12-year marriage. .
We next address egregious lack of remorse as an aggravating factor. Lack of remorse can constitute a valid aggravating factor to support an exceptional sentence, but it must be of an egregious or aggravated nature. State v. Ross, 71 Wn. App. 556, 563, 861 P.2d 473, 883 P.2d 329 (1993). Durall argues that he was unfairly penalized for being a man of little emotion who believed that his wife had abandoned him. But Durall makes no attempt to reconcile this argument with his testimony at trial, which was that unknown strangers killed Carolyn and forced him to conceal their crime. The evidence showed that Durall went out of his way to disparage his wife to her friends, co-workers, and even her parents and children just days after her disappearance. On the first business day after he reported Carolyn missing, Durall visited Carolyn's work place where he told her friends and co-workers that Carolyn was an "ugly" person on the inside and a bad, abusive mother. It was entirely appropriate for the trial court to conclude that Durall was needlessly and intentionally cruel when he told their three children (ages 4, 7, and 9) and Carolyn's parents that Carolyn had "suddenly and deliberately abandoned them.".
We take this opportunity, as we did in Wood, to reiterate that "we do not believe that the mundane lack of remorse found in run-of-the-mill criminals is sufficient to aggravate the offense." Wood, 57 Wn. App. at 800. Here, the most significant evidence of Durall's egregious lack of remorse was his callous, affirmative disparagement of his wife to her friends and especially to their children, which demonstrated that he had no regard as a parent for their grief. Durall's egregious lack of remorse greatly exceeded that shown in Wood, where the defendant manifested "total indifference" to her husband's death by traveling to another state with one boyfriend and moving in with another boyfriend just a few weeks after the murder. The defendant in Wood also taunted her boyfriend by imitating the gurgling sound her husband made while dying. There is a distinction between failing to be sorry that a person is dead and taking actions to aggravate the hurt felt by others. Durall's behavior amply crossed that threshold.
Pro se, Durall challenges his conviction upon a number of grounds. Durall contends that he was deprived of a fair trial due to several evidentiary decisions made by the trial court. A court's determination of admissibility is reviewed for abuse of discretion. State v. Crowder, 103 Wn. App. 20, 25, 11 P.3d 828 (2000) (citing State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997)). Because this is an unpublished opinion and the parties are well aware of the facts, this opinion contains only sufficient facts to understand the issues raised.
First, Durall argues that the State should not have been permitted to cross-examine him using his prior sworn testimony from the CrR 3.5 pretrial suppression hearing. ER 801(d)(1) permits impeachment with prior sworn statements if those statements are inconsistent. Inconsistency is interpreted broadly using the "`whole impression or effect of what has been said or done,'" as opposed to individual words and phrases. Sterling v. Radford, 126 Wn. 372, 375, 218 P. 205 (1923) (quoting 2 John Henry Wigmore, Evidence § 1040, at 1048 (1970)).
At trial, the State attempted to demonstrate the falsity of Durall's alibi by pointing out inconsistencies between two sworn accounts he gave of a prearrest interview with the police. At the CrR 3.5 pretrial hearing when the trial court was determining whether Durall's statements were voluntary, Durall claimed that during the interview he felt tired, accused, that he was not free to leave, and that it was taking too long. At trial, however, he testified that his state of mind during the interview was one of fear due to death threats he had received from the strangers who killed his wife and forced him to cover their crime. According to Durall, the differing purposes of the CrR 3.5 hearing and trial testimony explain his different responses.
But the test for inconsistency is based upon the substance of Durall's statements, not the purpose for making them. Here, the subject matter of Durall's testimony — his state of mind — was identical at both times, yet his responses appear to reflect inconsistent positions. The trial court did not abuse its discretion in admitting the CrR 3.5 hearing statements.
Durall also challenges the trial court's decision to allow the jury to retire with the transcripts of the CrR 3.5 hearing. In a criminal trial, all exhibits may be taken to the jury room. CrR 6.15(e). But testamentary transcripts are not typically permitted in order to avoid the risk of the jury placing undue weight on them. 5 Karl B. Tegland, Washington Practice:
Evidence § 402.37, at 319 (4th ed. 1999). Because the jury was not present at the CrR 3.5 hearing and did not hear the questions asked, it was not able without the transcripts to determine whether, as Durall claims, the questions asked of him at the CrR 3.5 hearing should have yielded responses different from the ones he gave at trial. While it is not the usual practice to allow the jury to retire with written transcripts, in this situation we conclude that the trial court did not abuse its discretion in permitting the jury to consider the transcripts.
Second, Durall urges this court to grant him a new trial, alleging that the State violated CrR 4.7 by withholding evidence. During trial it became apparent that Durall's home computer files, which were in the possession of the State's expert witness, contained e-mails that had not been reviewed by the State's or Durall's counsel. Both parties were surprised by the discovery of the additional computer files. The trial court granted a 6-day continuance during trial to permit time for both parties to review the files.
We reject Durall's claim that mistrial was the required remedy. Mistrial would have been an extreme remedy for a discovery violation that occurred inadvertently, not as a result of bad faith. State v. Linden, 89 Wn. App. 184, 195, 947 P.2d 1284 (1997). Granting a continuance was an appropriate exercise of the trial court's discretion, especially since Durall created and was therefore familiar with the computer files at issue. See State v. Falk, 17 Wn. App. 905, 908, 567 P.2d 235 (1977) (proper to briefly continue trial to permit review of evidence of newly discovered statements made by defendant).
Third, Durall contends that the trial court erred when it allowed Carolyn's co-workers to testify that on her last day at work, Carolyn told them that she planned to ask for a divorce that night. The trial court admitted these statements of future intent under the Hillmon doctrine to show a likelihood of actions in accordance with those statements. Mut. Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892). According to Durall, however, Carolyn ultimately "chickened out" of asking for a divorce and the erroneous admission of the hearsay statements allowed the State to make the false inference that Durall attacked his wife in response to her request for a divorce.
The Hillmon doctrine stems from a United States Supreme Court case acknowledging the reliability of statements reflecting the state of mind of unavailable persons. The Washington Supreme Court adopted this doctrine in State v. Terrovona, reasoning:
"Even where no actions by other parties are necessary in order for the intended act to be performed, a myriad of contingencies could intervene to frustrate the fulfillment of the intention. . . . The possible unreliability of the inference to be drawn from the present intention is a matter going to the weight of the evidence which might be argued to the trier of fact, but it should not be a ground for completely excluding the admittedly relevant evidence."
State v. Terrovona, 105 Wn.2d 632, 641, 716 P.2d 295 (1986) (quoting United States v. Pheaster, 544 F.2d 353, 376 n. 14 (9th Cir. 1976)) (emphasis added). Terrovona expressly rejected Durall's argument that a statement of intent is inadmissible because the speaker may have changed his or her mind. "Chickening out" could have been one of a myriad of contingencies that prevented Carolyn from asking for a divorce, but this goes to the weight of the evidence, not the admissibility. Terravona, 105 Wn.2d at 641. There was no abuse of discretion in allowing the State to draw the inference that Carolyn in fact did ask for a divorce on the night that she told others that she would.
Durall next claims that a mistrial should have been granted due to juror misconduct. During jury deliberations, an attorney visiting the courthouse overheard an extended conversation between a security officer and a juror who was passing through a security area. In that conversation, the officer lectured the juror about his impressions of Durall's overwhelming guilt. The attorney alerted the trial judge, who then questioned the juror.
Initially, the juror denied the contact, but he then admitted it, explaining that he had not paid much attention to the conversation. The trial court found credible his statements that the comments did not impact him. Further, his statement that he did not discuss these comments with the other jurors was corroborated by the other jurors. The trial court also asked the other jurors if they had had any improper contacts during trial and discovered that a juror had heard a cousin make a brief but incomplete remark consisting of "A couple of guys," "Killed wife and he is guilty." After completing its individual questioning of all of the jurors, the trial court denied defendant's motion for mistrial but granted defense counsel's request to substitute the first juror with an alternate. The trial court retained the second juror, however, due to the brevity of his cousin's remark, its internal inconsistencies, and the juror's credible assertion that he could and would disregard it. The court then instructed the jury to begin deliberations anew.
On appeal, Durall speculates that all of the excused juror's deliberations with fellow jurors (about one-half day) following the improper contact were influenced by the improper contact and that the security officer in question had likely attempted to influence jurors on other occasions during trial. He also contends that the disruption and individual questioning during deliberations necessarily prejudiced the jury against him. In response, the State claims that Durall has not met his burden of showing juror misconduct under State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994), which places on the defendant the burden of showing "[a] strong, affirmative showing of misconduct" to "overcome the policy favoring stable and certain verdicts. . . ." The State is correct.
The trial court acted appropriately by thoroughly and impartially questioning all jurors, immediately replacing the only juror who was arguably tainted by the security guard's comments, and instructing the jury to begin deliberations anew. There is nothing in the record to show that the juror prejudiced deliberations before his removal or that the security guard made inappropriate comments on other occasions to other jurors. Durall's speculation about misconduct or tampering that might have occurred is not sufficient to meet his burden.
Durall next claims that attorney-client privilege was violated when he was cross-examined regarding his communications (and notes of those communications) with a private investigator on August 17, 1998, several days before his arrest. According to Durall, the private investigator was hired by Durall's attorney and was covered by attorney-client privilege. Durall makes this claim despite the trial court's factual finding that he hired a private investigator to allay neighbors' suspicions.
Durall's claim fails because he has not shown how the communications and notes at issue could have been anyone's but the private investigator whom he hired. Durall did not assign error to the trial court's finding that he hired a private investigator to allay neighbors' suspicions, so he cannot challenge this finding on appeal. Furthermore, the trial court's finding is supported by evidence that Durall wrote e-mails telling family and friends that he had hired the private investigator.
Durall also claims that a statement he made while incarcerated in the City of Renton jail was a "private conversation" subject to chapter 9.73 RCW, Washington's privacy act, and therefore inadmissible. A jail officer testified at trial that while watching Durall on a monitor, she became concerned by his behavior, turned on an audio speaker, and heard him state, "Forgive me for what I have done." She then made a note of his statement.
The statement was not recorded. No one else was in the cell with Durall.
The record indicates that Durall was on suicide watch and therefore subject to heightened monitoring to ensure his safety.
Durall's claim fails because he has not shown that there is a reasonable expectation of privacy while incarcerated on suicide watch. The privacy act applies only to "private conversations," which requires us to examine the facts and circumstances of this case to determine whether the defendant had any reasonable expectation of privacy. State v. Clark, 129 Wn.2d 211, 224, 916 P.2d 384 (1996). Here, Durall had no reasonable expectation of privacy — he was in a jail cell. Anyone in the area could have overheard his statement. The trial court properly admitted the statement.
Durall also claims that his right to free exercise of religion was impinged by admitting the statement, which he explains was part of his daily practice of confessing sins through prayer. As the State correctly points out, however, Durall does not show that he was inhibited from practicing his religion. State v. Balzer, 91 Wn. App. 44, 54, 954 P.2d 931 (1998) (complaining party must show that government action has a coercive effect on his practice of religion). Indeed, the parties stipulated not to introduce the jail officer's perception of the statement as a prayer, and when the jail officer offered that perception while testifying, the jury was instructed to disregard the statement as irrelevant. Durall has not shown a violation of his right to free exercise of religion.
Durall next alleges that the prosecutor committed misconduct on numerous occasions when examining witnesses and during closing argument.
When improper argument is charged, the defendant bears the burden of establishing the impropriety of the prosecutor's argument as well as its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995). Allegedly improper comments are reviewed "in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given." State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998). Reversal is required only if there is a substantial likelihood that the misconduct affected the verdict. State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991).
Durall claims prosecutorial misconduct occurred on several occasions when the prosecutor mischaracterized the CrR 3.5 hearing as an opportunity for Durall to discuss his version of events surrounding Carolyn's murder, as opposed to a hearing addressing the admissibility of certain evidence. Specifically, the prosecutor criticized Durall's failure to mention at the CrR 3.5 hearing his alibi regarding the strangers who killed Carolyn and forced Durall to cover up their crime. Assuming arguendo that the prosecutor's comments were improper, Durall has not shown that they were prejudicial. In light of the overwhelming evidence against Durall, there is no reasonable likelihood that the verdict would have been different without the prosecutor's comments.
Durall's remaining prosecutorial misconduct arguments lack merit. The prosecutor did not infringe on Durall's right to refuse consent to a warrantless search when a detective testified regarding a telephone call he had with Durall. In that call, the detective told Durall he would like to visit the Durall home, but Durall said he was busy and would call him back.
The detective testified that Durall did not call him back.
Merely referring to the defendant's failure to call back does not violate a constitutional right. State v. Sweet, 138 Wn.2d 466, 481, 980 P.2d 1223 (1999). There was no testimony that Durall refused the search or refused to talk with the detective. Accordingly, his constitutional right to remain silent was not violated. Durall's additional claim that the State inferred guilt from his postarrest silence is too vague to address — it contains no citations to the record or pertinent analysis.
There is also no merit to Durall's claim that the State violated his Sixth Amendment right to counsel when it introduced evidence that he retained an attorney before his arrest. It is not permissible for a prosecutor to imply guilt from the hiring of an attorney — such actions are irrelevant to the question of guilt or innocence and are therefore inadmissible. See Bruno v. Rushen, 721 F.2d 1193, 1194 (9th Cir. 1983).
There is no evidence, however, that the prosecutor even made such an inference. The fact that Durall had hired an attorney was raised by Durall himself to explain his inquiries about withdrawing money from his pension plan. Durall has failed to identify any comment in the record stating or implying that he had hired an attorney before his arrest because he was guilty.
With two minor exceptions, Durall also fails to identify any closing argument comments that were improper. The prosecutor has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Brown, 132 Wn.2d 529, 565, 940 P.2d 546 (1997). In all of Durall's quoted excerpts, the prosecutor restated the evidence (conversations with various witnesses, including a neighbor, a family friend, a co-worker, plus expert forensic testimony) and suggested reasonable inferences to be drawn from that evidence. In only one instance, to which the State concedes, was there a misstatement of the evidence, but this was a minor error as to a date. It was not a disputed fact, and the misstatement could have been corrected by an objection, but there was none. In the second instance, the prosecutor misstated the law as to defense counsel's duty to raise reasonable doubt, which was quickly objected to and corrected. Durall has shown no prejudice.
Durall also contends that the prosecutor improperly stated his personal opinion, but in the context quoted ("Did he get away with murder? I don't think so. . . . . I did not hear a single argument in support of that story . . . . "), the prosecutor was not stating a personal opinion, but instead properly identifying weaknesses in the defense's theory.
Durall's last assignment of error is that his attorney's performance constituted ineffective assistance of counsel. A party asserting ineffective assistance of counsel has the burden of showing that counsel's performance was deficient, that is, that it fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). In reviewing such a claim, we bear in mind that there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Sherwood, 71 Wn. App. at 483 (citing State v. Visitacion, 55 Wn. App. 166, 173, 776 P.2d 986 (1989)).
Durall criticizes his attorney's failure to retain a computer expert and investigate possible perpetrators of Carolyn's murder, but his arguments are devoid of any indication of what evidence would have been discovered. Such speculation cannot support an ineffective assistance claim.
Durall also challenges his attorney's failure to raise attorney-client privilege as a ground for withholding notes written by Durall's private investigator. As discussed above, however, there was no privilege to assert for the notes prepared by the private investigator hired by Durall. Durall also claims his attorney failed to protect his constitutional rights by objecting to improper testimony, but no objection was warranted because the testimony at issue did not infringe upon Durall's constitutional rights.
Lastly, Durall argues that his attorney should have requested sanctions in the form of a mistrial or suppression to punish the State for the discovery violation related to the tardy disclosure of files from his home computer. We have already explained that mistrial and suppression are extreme remedies usually reserved for bad faith nondisclosure. A motion for mistrial or suppression was not likely to succeed where there was no bad faith shown and the trial court granted a 6-day continuance to allow all parties to become familiar with the files at issue. Moreover, even assuming his attorney should have moved for a mistrial, Durall has failed to identify which e-mails caused the alleged prejudice so the record is not adequate to consider his claim.
We affirm Durall's conviction and sentence.
BECKER and BAKER, JJ., concur.
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