J. DEAN MORGAN, J.
Guy Matthew Rasmussen appeals his conviction for aggravated first-degree murder. We affirm.
On July 4, 1996, Rhonda Plank lived in Lakewood with her daughters, Cynthia Allinger, age 9, and Ashley Allinger, age 7. Rasmussen had previously lived in the same neighborhood, and Cynthia had occasionally visited him. On July 4, 1996, Rasmussen was living in a trailer park about two miles from the neighborhood in which Plank and her daughters lived, and in which he had formerly lived. He was sharing a trailer with a roommate, James Haggard. He had been introduced to Haggard by Jay Kuerst, who lived in the trailer next door. Haggard and Rasmussen did not have a phone, so Rasmussen made and received calls from Kuerst's phone. Rasmussen's nickname was `Razz.'
A third daughter, Brittany, is not involved here.
During the day or evening of July 4, Cynthia disappeared. At 11:00 p.m., Plank called 911 to report her missing. Plank told the dispatcher that a neighbor, a sex offender called `Razz,' might be `involved.' That same night, Deputy Alwine went to Plank's home. He spoke with both Plank and Ashley. Plank said she had last seen Cynthia at 3 p.m., when Cynthia had left to go a friend's house. Plank also said that she had been told by Ashley that Cynthia had gone to see `Razz.' Ashley said that she knew who `Razz' was, but that she had not seen him that day.
Ex. 5.
Between July 5 and July 17, when Cynthia's body was found, many police and citizens were involved. The police received `enormous volumes of tips and folks calling in and people attempting to contact us and give us information.' It was a `mammoth investigation,' and there were `up to a dozen agents doing nothing but tip control[.]'
Report of Proceedings (RP) at 102.
RP at 161.
Early on July 5, Detective Teresa Berg was assigned as lead investigator. From other deputies and Alwine's report, she learned that Cynthia `might have been with a fellow named Razz, who was later identified as Guy Rasmussen.'
RP at 99.
Around 9:00 a.m. on July 5, Berg contacted Plank at her residence. Plank said Cynthia had left at about 3 p.m. on July 4, while Plank was washing her car. Plank thought Cynthia was going to play with her friend Shannon, but Ashley later told Plank `Cynthia was going to go see Razz[.]' Plank thought Ashley `knew of' Razz `from Cynthia.'
RP at 105-06.
RP at 106.
Later on July 5, Berg interviewed Plank again. Plank said that she had made lunch for her daughters at about 1 p.m. on July 4. Cynthia then left to play with Shannon, and Plank went outside to wash her car. When Berg pressed Plank for a time when Plank last saw Cynthia, Plank said `approximately 1630 hours [4:30 p.m.].' Given that July 4 was a holiday, Berg thought that Plank just `hadn't kept track of the time[.]'
RP at 111.
Id.
Berg then spoke with Ashley, age 7, who said she had seen Rasmussen the previous day. When Berg asked whether that was before or after lunch, Ashley said `before lunch.' Cynthia had told Ashley that Cynthia `was going to go see Razz[,]' and that `Razz was going to show her his new house.' Ashley had seen Cynthia and Rasmussen about `halfway about between her house and Razz's old house.' When asked again to estimate the time, Ashley at first said `before lunch'; then, however, she said `that Cynthia had saw (sic) Razz after lunch but then before dinner.' Sometime after July 7, Berg learned that Ashley told Alwine on July 4 that Ashley had not seen Rasmussen `that day.'
RP at 116.
RP at 118.
RP at 117.
When Berg left Plank's, she returned to the station to `keep up with the search and the tips and information coming in[.]' Later that day, she learned that Rasmussen was currently at the Rainbow Valley Music Festival in Lewis County.
RP at 119.
On July 6, Berg again interviewed Plank. Plank said that `Cynthia and Ashley were at Shannon's house by . . . 1 o'clock, but they weren't there very long . . . [and] came back together at approximately . . . 4:30.' As Berg and Plank were discussing Rasmussen, Plank said that `Ashley knew not to go there and that she had never seen Razz before.' Berg then contacted a neighbor named Chong Huff. Huff said that between 3:00 p.m. and 4:00 p.m. on July 4, while outside washing her car, she had seen `a white male, tall, thin and with long curly hair and he was walking with what she thought to be about a seven to eight-year-old girl and he was holding her by the hand and they were coming through an opening in her fence[.]'
RP at 125.
RP at 126.
RP at 129.
Later on July 6, Detective Floberg told Berg that Cierra Hull, a nine-year-old playmate of Cynthia's, had told him that `during the afternoon or the early evening of July 4th, she saw a white male holding Cindy's hand and they were walking in front of her apartment complex.' When Hull said `hello' to Cynthia, Cynthia `tried to say hello back[,]' but `the male had tugged Cindy's hand[.]' After looking at a photo montage, Hull identified Rasmussen as the man with Cynthia. Floberg did not then relate the time at which Hull thought she had seen Cynthia with the defendant, but he told Berg, sometime after July 7, that Hull thought it was about 7:30 p.m. Also on July 6, Floberg told Berg that on July 4 at about 5:30 p.m., Gary Cormier, a friend of Kuerst's, had given Rasmussen a ride from a convenience store to Rasmussen's trailer. Rasmussen was `wearing a tie-dyed type shirt, some cut off denim shorts, a black fanny pack[.]' At the trailer, Rasmussen showered, and he `may have changed his clothing.' Later that evening, he went to the Rainbow Valley Music Festival. Sometime after July 7, Berg learned that Rasmussen had called Kuerst's phone at 4:15 p.m. on July 4 to arrange the ride from the convenience store.
RP at 134.
RP at 134.
Id.
RP at 157-58.
RP at 136.
Id.
Id.
By the early morning hours on July 7, Berg wanted to search Rasmussen's trailer for the clothes he had been wearing and any trace evidence that might be on them. Working under time pressure other officers had secured the trailer that Rasmussen and Haggard shared, and Haggard was waiting to re-enter it Berg prepared notes of what she would say to the judge. She did not include, because she did not then know, that Rasmussen had called Kuerst's for a ride at 4:15 p.m., or that other tipsters had claimed to see a girl loosely matching Cynthia's description playing in the neighborhood between 5 and 9 p.m. She did not include, because she did not deem significant, Plank's statement that Plank had last seen Cynthia at 4:30 p.m.; Ashley's statement that she did not know Rasmussen; or Ashley's statement that she had seen Rasmussen `before lunch.' She did not say that Hull had claimed to have seen Rasmussen with Cynthia at about 7:30 p.m., but she did say that Hull claimed to have last seen Cynthia `in the late afternoon or early evening.'
RP at 157.
At 1:30 a.m. on July 7, Berg paged the on-call judge. She checked her recording equipment before she did that, and it seemed to be working. When the judge called her back, she read to him from the notes she had prepared, as well as from `a standard warrant form.' He issued the search warrant, and she `headed out the door' to serve it. Being `in a hurry[,]' she did not check the recorder at that time.
RP at 148.
RP at 147.
When the officers searched Rasmussen's trailer, they found various items of clothing that were later admitted at trial. Tests on some of those items revealed Cynthia's DNA.
On July 9, Berg `was going to have the tape transcribed.' She found, however, that the recorder had failed. The type of phone she was using may not have been compatible with the recorder, or `the wiring on the transmitter device' may have been `loose[.]'
RP at 151.
Id.
On July 10, 1996, Berg informed the on-call judge that the recording had failed. He told her to type up a statement showing what had occurred. Using the handwritten notes she had read from while on the phone with the judge, she typed a statement and took it to the judge. He thought that it fairly reflected the contents of their discussion in the early morning hours of July 7, so he signed it `nunc pro tunc July 7, 1996.' The statement now appears in the record as a `Complaint for Search Warrant.' On November 18, 1996, the State charged Rasmussen with aggravated murder in the first degree, kidnapping in the first degree, and rape of a child in the first degree. It also charged the death penalty.
RP at 153.
Ex. 5.
Before trial, Rasmussen moved to suppress the items taken from his trailer because (a) the tape recorder had failed and (b) Berg had recklessly or intentionally failed to inform the on-call judge of all facts material to probable cause. In March 1998, after extensive hearings, the trial court entered findings of fact that parallel the facts recited above. Based on those findings, the trial court concluded that the failed recording had properly been reconstructed, that Berg's omissions were not reckless or intentional, and that the motion to suppress should be denied.
In January 1999, after a long trial, the jury found Rasmussen guilty. It could not agree on the death penalty, so he was sentenced to life without parole. He then filed this appeal, in which he raises numerous issues.
I.
The first issue is whether the trial court should have granted the motion to suppress on the ground that `the telephonic warrant was neither electronically recorded nor independently reconstructed.' CrR 2.3(c) permits an officer to seek a warrant over the phone. If an officer does that, however, either the officer or the judge must record the testimony electronically. If the officer or judge attempts to do that but the recording fails, the testimony can be reconstructed `if detailed and specific evidence of a disinterested person, like the magistrate or court clerk, corroborates the reconstruction.' Absent corroboration, `the failure to record sworn statements deprives the appellate court of a record sufficient to review the magistrate's probable cause determination[,]' and suppression is required.
Br. of Appellant at 50.
State v. Myers, 117 Wn.2d 332, 343, 815 P.2d 761 (1991); State v. Smith, 87 Wn. App. 254, 257, 941 P.2d 691 (1997).
Myers, 117 Wn.2d at 334.
State v. Myers and State v. Smith are the main cases on corroboration. In Myers, a police officer obtained a telephonic warrant to search the defendant's house. He tested his recorder before calling the judge, and he thought it was working properly. The next day, he discovered that the recorder had not functioned or that the recording had been erased. He `wrote down what he recalled of the events the preceding day[,]' but he did not then contact the judge. At a suppression hearing held three months later, he testified to what he recalled saying over the phone. When the magistrate testified, however, he could not corroborate the officer's recollection. Although the magistrate remembered receiving the call and issuing the warrant, he did not remember `swearing [the officer] in, the officer's or defendant's name, the details of the search, or the details based upon which he determined that probable cause existed to search [defendant's] property.' He had not taken notes while on the phone, and he did not presently `have independent recollection of the events[.]' Citing both the Fourth Amendment and Const. art. 1, § 7, the Supreme Court held that without corroboration from the judge, it was `impossible to accurately review what the judge considered or found when he issued the warrant[.]' As a result, suppression was required.
Id.
Myers, 117 Wn.2d at 335.
Id.
Id.
Myers, 117 Wn.2d at 336.
Myers, 117 Wn.2d at 335.
Myers, 117 Wn.2d at 343-44.
In State v. Smith, a police officer obtained telephonic warrants to search the defendant's person, home, and vehicle. Soon thereafter, he learned that the recording had failed. Thinking that a back-up `master recording' had been made, he did not then contact the judge. A few days later, he learned that the `master recording' had also failed. Still, he took no action. At a suppression hearing held four months later, the officer testified that `he had made detailed notes of the information pertaining to probable cause before he called the judge[,]' and that he read these notes verbatim to the judge. The judge testified that he did not remember many details from the conversation, although he did recall the officer `reading from a prepared statement.' This court held that the judge's testimony did not corroborate `that the information in [the officer's] notes was actually presented to the judge[;]' that there was a consequent lack of `independent evidence from a disinterested person establishing the details upon which the judge determined that probable cause existed[;]' and thus that suppression was required.
Id.
Smith, 87 Wn. App. at 256.
Id.
Id.
Smith, 87 Wn. App. at 260.
Id.
The facts of this case differ from Myers and Smith. Before calling the judge on July 7, Berg `prepared detailed handwritten notes[.]' When she called the judge on July 7, she read from those notes. The judge did not take notes himself, but he perceived that she `was reading from a document.' When Berg learned on July 9 that the tape recorder had failed, she contacted the judge, who told her to type up a complaint. She complied, using the notes from which she had read while on the phone. She presented the complaint on July 10, and the judge `carefully reviewed' it while `[t]he events of July 7 . . . were still fresh in [his] mind[.]' The judge determined that the complaint `contained the same information he received telephonically.' By the time the suppression hearing was held in February 1998, the judge's recollection `was hazy.' He recalled listening on the phone, however, while Berg read `from a document.' He recalled being contacted by Berg a few days later; telling her to type up a complaint; and carefully reviewing the complaint with the `details' fresh in mind because `[o]nly three days had elapsed.' He had thought on July 10 that the complaint appeared to contain `the same information that [he] had received telephonically' on July 7, and he `would have deleted [any new] information' that he had not received on July 7. Because the judge approved the officer's reconstruction of the phone call while the events were still fresh in his memory, and because he found no discrepancies between the reconstruction and the call itself, we hold that he adequately corroborated the call, and that the trial court did not err on this issue.
Rasmussen claims that several of the trial court's findings of fact are not supported by substantial evidence. According to State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994), evidence is substantial if sufficient `to persuade a fair-minded, rational person of the truth of the finding.' Each of the findings here meets that test.
Finding of Fact (FOF) 3.
FOF 3-4.
FOF 5; RP at 352.
FOF 6.
FOF 7.
FOF 7.
FOF 8.
FOF 8.
FOF 11.
RP at 352.
RP at 353.
RP at 354.
II.
Rasmussen next contends that the trial court should have granted his motion to suppress because Berg recklessly or intentionally misinformed the judge about facts material to probable cause. `Misstatements or omissions of fact in affidavits supporting search warrants may affect a warrant's validity if they were (1) material, and (2) made deliberately or with reckless disregard for the truth.' Necessarily, materiality is judged from the affiant's perspective at the time the warrant is sought.
State v. Jones, 55 Wn. App. 343, 345, 777 P.2d 1053 (1989).
Rasmussen lists several facts that he says Berg misstated or omitted when speaking with the judge on July 7. Those facts include (1) that Rasmussen contacted James Haggard for a ride when in fact he contacted Jay Kuerst for a ride; (2) that Rasmussen had called for the ride at 5:30 p.m. when in fact he had called at 4:15 p.m.; (3) that Hull said she had seen Cynthia with Rasmussen at 7:30 p.m.; (4) that before Hull identified Rasmussen, she might have seen a flier with his picture on it; (5) that Rhonda Plank had said she last saw Cynthia at 4:30 p.m.; (6) that Ashley had said (a) that she did not know Rasmussen although she knew who he was, (b) that she had not seen Rasmussen that day, and (c) that she had seen Rasmussen before lunch that day; and (7) that other people claimed to have seen Cynthia during the evening hours on July 4. If the judge had known these facts, according to Rasmussen, he would not have issued the warrant for Rasmussen's trailer.
Fact (1) is immaterial. What matters is when Rasmussen called, not whom he called.
Facts (2) and (7) were not known to Berg. There is no evidence that she recklessly or intentionally failed to inform herself about them, or that other officers recklessly or intentionally failed to inform her about them.
Fact (3) is immaterial and not known to Berg. Berg told the magistrate that Hull alleged seeing Rasmussen and Cynthia in the late afternoon or early evening, which approximates saying that Hull had alleged seeing Rasmussen and Cynthia at 7.30 p.m. Berg did not know that Hull had said 7:30, and there is no evidence that Berg recklessly or intentionally withheld that fact.
Fact (4) was not established. There is no evidence that Hull, before identifying Rasmussen from the montage, saw a flier with his picture on it.
Fact (5) was immaterial when Berg sought the warrant, for she did not then know that Rasmussen was claiming an alibi from and after 4:15 p.m. Fact (5) was not recklessly or intentionally omitted, for if Berg did not know of Rasmussen's alibi, she had no reason to include it. It is only hindsight that makes it seem significant now.
Fact (6)(a) is immaterial. The issue is whether Ashley could recognize Rasmussen, not whether she knew him as a friend.
It is arguable that facts 6(b) and (c) should have been disclosed to the judge, for it was his job, not Berg's, to assess Ashley's credibility.
Even if facts (6)(b) and (c) had been disclosed, however, probable cause would still have existed. Like the trial court, we conclude that Berg presented a reasonably true and complete set of facts, and that she did not make any misstatements or omissions warranting suppression.
III.
Rasmussen argues that even if Berg did not have actual knowledge of some of the facts just discussed, knowledge should be imputed to her by operation of law. He bases his argument on the `fellow officer' rule described in Whiteley v. Warden, Wyoming State Penitentiary, and in State v. Maesse. Either an officer or a magistrate can direct that a search or arrest take place. When an officer directs that another officer perform a search or make an arrest, the search or arrest occurs without a warrant. When a magistrate directs an officer to perform a search or make an arrest, the search or arrest occurs with a warrant. In either situation, the search or arrest must be based on probable cause.
29 Wn. App. 642, 629 P.2d 1349, review denied, 96 Wn.2d 1009 (1981)
The `fellow officer' rule applies when one officer directs another officer to perform a search or make an arrest without a warrant. The rule provides `that an arresting officer who does not personally possess sufficient information to constitute probable cause may still make a warrantless arrest if (1) he acts upon the direction or as a result of a communication from a fellow officer, and (2) the police, as a whole, possess sufficient information to constitute probable cause.' The rule recognizes that officers sometimes must act in concert, rather than independently and alone.
Maesse, 29 Wn. App. at 646-47 (quoting People v. Baca, 198 Colo. 399, 401, 600 P.2d 770 (1979)).
The `fellow officer' rule does not apply when a court is determining whether a magistrate properly directed an officer to perform a search or make an arrest. The magistrate's direction is embodied in a warrant, and the propriety of that direction is gauged by examining the sworn testimony provided in support of the warrant, subject to the rule of Franks v. Delaware. The rule recognizes that a magistrate generally acts independently and alone. Given that a magistrate directed the search in issue here, the `fellow officer' rule does not apply.
IV.
The next issue is whether the trial court erred by not ordering the State to refrain from using NCIC information about jurors, or, alternatively, by not ordering the State to give such information to Rasmussen. Rasmussen argues that the State's gathering such information violated the jurors' right of privacy; or, if the State was entitled to gather it, that he was entitled to a copy.
We reject Rasmussen's attempt to rely on the jurors' right of privacy. A party `must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.' Exceptions exist for example, race discrimination as in Powers v. Ohio and gender discrimination as in State v. Burch but no exception applies here.
Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411(1991).
65 Wn. App. 828, 837, 830 P.2d 357 (1992).
In this case then, Rasmussen cannot assert rights not his own. For several reasons, we likewise reject Rasmussen's claim that the trial court erred by not ordering the State to give him a copy of the State's information on prospective jurors. First, we review only those claims that Rasmussen made to the trial court. In that court, he requested only NCIC records, and he based his request only on the Washington State Criminal Records Privacy Act, RCW 10.97. He did not rely on Washington's discovery rules or the trial court's discretion thereunder.
Compare CP at 917 and RP at 1927-28 with Br. of Appellant at 67-68 and 72-76.
Second, Rasmussen's reliance on the Criminal Records Privacy Act is misplaced. That act prohibits the dissemination of information, subject to certain exceptions. It does not mandate the dissemination of information, as Rasmussen claims here.
Third, even if we were to review Rasmussen's entire claim on appeal, we would reject it under the circumstances here. Nothing in Washington's rules of discovery mandates that one side disclose to the other side whether it has investigated the backgrounds of potential jurors, or the results thereof. Given the arguments that the trial court heard here, we cannot say that it abused its discretion by denying Rasmussen's motion for copies of whatever NCIC records the State might have obtained.
V.
The next issue is whether Rasmussen was entitled to see records maintained by Child Protective Services (CPS) on Rhonda Plank and her children. He asked the trial court to review the records in camera and disclose any information favorable to the defense. He said he needed the information for four reasons. His first two reasons were (1) that the State intended to prove his guilt in part by showing that he had previously molested Cynthia, and (2) that the State intended to do that by introducing hearsay statements made by Cynthia before her death; thus, he said, he needed to discover any information that might impeach those hearsay statements. His third reason was that the State intended to call Ashley at trial, and that he needed information that might impeach Ashley. His fourth reason was that in the penalty phase, if any, the State intended to introduce victim impact testimony from Plank, and he needed information that might show Plank was not a caring parent. After reviewing the records and Rasmussen's reasons for wanting them, the trial court found nothing in them that was `material to the defense.'
RP 1546.
Rasmussen's first, second and fourth reasons are now moot. The State indicated at the time of the motion that it was `not seeking to admit any child hearsay' relating to prior incidents of molestation, and Rasmussen prevailed in the penalty phase. With respect to his allegation that the records might impeach Ashley, we have reviewed them in camera and find nothing that would have that effect, or that the trial court was required to disclose. We conclude that this issue lacks merit.
RP 1220.
VI.
The next issue relates to the DNA that was found on Rasmussen's clothes. It has two parts. The first is whether this particular type of DNA testing is admissible. The second is whether Rasmussen was able to obtain the information he needed to challenge its weight before the jury.
A.
The first part was resolved in State v. Gore. The Supreme Court held in that case that the type of DNA testing in issue here is generally accepted in the scientific community, and therefore admissible over an objection based on Frye v. United States.
143 Wn.2d 288, 305-07, 21 P.3d 262 (2001).
293 F. 1013 (D.C. Cir. 1923).
B.The second part of the issue is whether Rasmussen should have had access to certain test strips (hereafter referred to as `raw data') that laboratories have compiled and that experts routinely use in compilation form. Such data had nothing to do with him as an individual, but rather dealt with large groups of randomly selected people. The trial court ruled:
According to Jennifer Mihalovich, the raw data used by the relevant community consists of the tabulated counts which has already been provided to the defense. I do not believe that production of the underlying test strips is necessary in this case and that request is denied.
I would further point out . . . that the request . . . is impossible for the court to meet. . . . This court has no control over the FBI, and apparently those databases are being used in this matter. There is no way that this court could require such production. That is of concern to the court. However, the most significant matter is that the experts seem to use the tables that have been presented to everybody who is in this field and that's accepted as the raw data, and for those reasons I'm denying the request.
Rasmussen's request for discovery is governed by CrR 4.7(e)(1) and (2). That rule requires that such a request be both material and reasonable.
See State v. Norby, 122 Wn.2d 258, 266, 858 P.2d 210 (1993).
The raw data that Rasmussen wanted to discover is scattered among various laboratories throughout the country, including but not limited to the FBI. He already had compilations that the experts themselves routinely rely upon. He did not demonstrate that he was likely to gain anything significant by having access to the underlying raw data, or even that his expert could examine the raw data without compromising its future usefulness. The trial court did not abuse its discretion by denying his request.
See State v. Dykes, 252 Kan. 556, 561, 847 P.2d 1214 (1993) (request unreasonable where `[it] was impossible for the FBI to comply' and where defendant did not show relevancy).
VII.The next issue is whether Rasmussen's right to remain silent was violated. He attended the Rainbow Valley Festival from the evening of July 4 until July 7. On July 5 and July 6, he was told by several friends or acquaintances that the police wanted to see him. He did not respond until July 7, when he was driven to the Festival's gate by its organizer. Although he did not object at trial, he now claims that the `extensive evidence about [his] failure to contact the police . . . while at the Rainbow Valley Festival constituted impermissible comments on his Fifth Amendment privilege[.]'
Br. of Appellant at 85. Rasmussen also suggests that the trial testimony of a detective named Adamson commented on his right to remain silent. He does not identify the alleged comment by citation to the record, and he does not show why the comment would have been so prejudicial as to warrant reversal. We reject this suggestion.
Although the Fifth Amendment prevents the substantive use of a `defendant's pre-arrest silence, in answer to the inquiries of a police officer,' it does not prevent the use of statements or silence made in response to the inquiries of a lay person. Thus, the Fifth Amendment did not bar the testimony in issue here.
State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996); see also State v. Easter, 130 Wn.2d 228, 240, 922 P.2d 1285 (1996).
U.S. v. Birnstihl, 441 F.2d 368, 370 (9th Cir. 1971); U.S. v. Antonelli, 434 F.2d 335, 336 (2nd Cir. 1970); cf. Nixon v. Condon, 286 U.S. 73, 83, 52 S.Ct. 484, 76 L.Ed. 984 (1932); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921).
VIII.
The next issue is whether the trial court erred by denying a motion for mistrial based on trial testimony given by Deputy Cassio on Tuesday, November 10, 1998, and by Detective Berg on Thursday, November 12, 1998.
The prosecutor questioned Cassio as follows:
Q. Just to back up a minute, prior to your going to Rainbow Valley on July 6th to locate the defendant, had you seen the defendant or seen pictures of him?
A. We had a picture of the defendant. We kept a small photograph of a booking photo in Deputy Shaffer's log book, and I have a copy of that here.
Q. I'm showing you what's been admitted as Plaintiff's Exhibit 1. Do you recognize this?
A. That's an enlarged copy.
Q. Is that a photo of the defendant?
A. Yes.
Q. And this was the information you had about the defendant's appearance at that time?
A. That was.
The prosecutor questioned Berg as follows:
Q. I'd like to refer you now to the day after you obtained the clothing, and I'm on July 23rd now. On that day, did you receive a phone call from a male identifying himself as Guy Rasmussen?
A. Yes, I did.
Q. Where did you receive this phone call at?
A. I was at my office. Actually, I think this one was just at the precinct. It came through the front desk area and it was passed to me.
Q. The caller on the other end identified himself as Guy Rasmussen?
A. Yes, he did.
Q. What was the reason for his call?
A. He was inquiring about the clothes I had taken in the search warrants.
Q. Do you recall what specifically he said with regard to the clothing?
A. He wanted to know when he could get them back and how long it was going to take. He asked me why I had taken certain items, such as license plates, and I explained to him our purpose and what we took.
Q. Did you indicate that you — were you able to provide him with a time frame as to when he might get his clothing back?
A. No. He complained that, you know, he had an experience before where it took five years, and he wanted to know if it was going to take five years to get his clothes back.
[Defense Counsel]: Objection, Your Honor. Unresponsive.
The Court: That is sustained.
Rasmussen's only objection was the one just shown. He did not move for a mistrial until Monday, November 16, 1998, when he argued that the `testimony was in violation of an order in limine barring the State from introducing evidence of prior convictions or uncharged misconduct.' He declared then, for the first time, that he had been `severely prejudiced and that the court should declare a mistrial.' The trial court ruled:
CP at 1161. The record does not contain a motion in limine, nor does Rasmussen's brief on appeal cite to a motion in limine.
CP at 1161-62.
[W]ith regard to Deputy Cassio, there was one mention of a booking photo. I don't find that that has got any significant impact on this case, because we already have a photo montage, and I don't think we've got ignorant jurors here, and they are going to assume this photo of Mr. Rasmussen and the other people came from someplace, and I don't think that causes any serious prejudice to the defendant.
And with regard to . . . Detective Berg's matter, that was stricken from the record, didn't go into any specific details. It just said previous experience with regard to clothes, not detail. I don't see there's any real prejudice to the defense here in light of how these matters were handled and kept very short. For those reasons, the motion for mistrial is denied.
When deciding a motion for mistrial, a trial court must determine `whether the remark when viewed against the backdrop of all the evidence so tainted the entire proceeding that the accused did not have a fair trial.' We review its determination only for abuse of discretion.
State v. Weber, 99 Wn.2d 158, 164, 659 P.2d 1102 (1983); See also State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994).
Johnson, 124 Wn.2d at 76.
Cassio's and Berg's comments were both minor. The content of Cassio's comment was not entirely new to the jury, which had already heard evidence that the police had included a photo of Rasmussen in the montage shown to Hull. Rasmussen did not object to Cassio's testimony. His objection to Berg's testimony was sustained, and he did not seek further relief at that time. His motion for mistrial was untimely, for it came six days after Cassio's testimony and four days after Berg's. For each and all these reasons, the trial court did not abuse its discretion.
IX.
The next issue is whether the trial court erred by denying a motion to strike the testimony of a dog handler named Stockwell. She first testified on October 28, 1998, without objection and without cross-examination. Two and a half months later, on January 12, 1998, Rasmussen moved to strike her testimony, alleging that the State had not laid a proper foundation. He explained that he had not objected in October because he had failed to do `any research on what the foundational requirement for [Stockwell's testimony] was[.]' The trial court denied the motion because it was untimely and because an adequate foundation had been furnished. Stockwell then took the stand again, and both parties had a further opportunity to explore whether she and her dog met the minimum criteria for admissibility.
RP at 9108.
A trial court has broad discretion when deciding an untimely motion to strike, and there was not abuse of discretion here.
King County Fire Protection Dist. v. Housing Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994); Stenger v. State, 104 Wn. App. 393, 407, 16 P.3d 655, review denied, 144 Wn.2d 1006 (2001); ER 103(a).
X.
The next issue is whether the trial court erred by giving Instructions 23 and 24. Rasmussen objected to Instruction 23 because `it unduly focuses attention or draws attention to a matter about which the jury was already given an oral instruction.' Rasmussen objected to Instruction 24 because `the court provided oral instructions when testimony was admitted, and there's no need to further highlight that matter by having a laundry list of those events in an instruction.' Rasmussen now claims that neither instruction was a correct statement of law, and that each was an unconstitutional comment on the evidence.
RP at 9468.
Id.
Rasmussen cannot object, on appeal for the first time, that an instruction is an incorrect statement of the law. The testimony referred to was admitted for limited purposes, and the trial court had discretion to so instruct.
RAP 2.5(a)
ER 105.
Rasmussen can object on appeal for the first time that an instruction was an unconstitutional comment on the evidence. `The touchstone of error in a trial court's comment on the evidence is whether the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury.' Thus, `if the trial judge conveys to the jury his personal opinion regarding the truth or falsity of any evidence introduced at the trial he has violated the constitutional mandate.'
RAP 2.5(a); State v. Lampshire, 74 Wn.2d 888, 892-93, 447 P.2d 727 (1968); State v. Akers, 88 Wn. App. 891, 895-96, 946 P.2d 1222 (1997), aff'd, 136 Wn.2d 641 (1998).
State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).
State v. Bogner, 62 Wn.2d 247, 250, 382 P.2d 254 (1963).
Instructions 23 and 24 described for the jury the law governing its use of the testimony listed therein. They also reiterated oral instructions given earlier, to which there had been no objection. Neither was an impermissible comment on the evidence.
XI.
Rasmussen challenges the trial court's exclusion of certain items of evidence, including (1) an out-of-court statement by Andrea Kuerst that was consistent with her trial testimony; (2) an out-of-court statement of Eric Angle; (3) witness Ferris' opinion that the odor on Rasmussen's clothes came from decomposing tissue; and (4) witness Mihalovich's opinion concerning `reverse paternity testing' that was never requested or performed. The trial court permitted Dr. Ferris to testify, over the State's objection, that he would not `expect to smell an odor of decomposition from a bloodstain.'
RP at 8002.
None of this evidence was admissible under the rules of evidence. The out-of-court statement of Kuerst was hearsay under ER 801(c); it did not fall within ER 801(d)(1)(ii); and it did not fall within any other exception.
The out-of-court statement of Angle was hearsay under ER 801(c) and not within any exemption or exception. Dr. Ferris' opinion was not supported by a scientific basis for saying that the odor on clothes comes from tissue rather than blood; he was allowed to say that the odor was unlikely to have come from a bloodstain (thus giving Rasmussen much of what he wanted); and the admission of expert testimony is discretionary. Like the trial court, we fail to understand why `reverse paternity testing' could even possibly have been relevant.
See, e.g., State v. Martin, 101 Wn.2d 713, 722, 684 P.2d 651 (1984) (no scientific basis for hypnosis).
State v. Stenson, 132 Wn.2d 668, 715, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
Rasmussen does not argue that any of this evidence was admissible under the rules. He does argue, however, that he had a right to admit it irrespective of the rules, due to his constitutional right to compulsory process. That right exists but is not absolute. It `is subject to established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.' It was subject to the rules here, and we find no error.
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996).
State v. Finch, 137 Wn.2d 792, 825, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)).
XII.
The next issue is whether the prosecutor's closing argument violated Rasmussen's due process right to a fair trial. He argues that it did, because the prosecutor (1) disparaged defense counsel, (2) denigrated the defense as a sham, (3) argued facts not in evidence, (4) vouched for a witness, (5) shifted the burden of proof to the defense, (6) commented on his pre-arrest silence, and (7) misstated the record. Overlooking these characterizations and examining the remarks themselves, we hold that each remark was within the bounds of advocacy or too minor to warrant reversal.
We reject Rasmussen's argument that defense counsel rendered ineffective assistance because they did not object to these remarks.
XIII.The next issue is whether the evidence is sufficient to support a finding that Rasmussen premeditated Cynthia's death. The test `is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.' `[A]ll reasonable inferences . . . must be drawn in favor of the State and interpreted most strongly against the defendant.'
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).
Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)).
Premeditation is `the deliberate formation of and reflection upon the intent to take a human life[.]' It `is the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short. It can be proved by circumstantial evidence. The evidence in this case shows that Cynthia was killed in an isolated area; that her jaw was fractured prior to death by blunt force trauma; that her thighs were burned with cigarettes; that she was violently sexually assaulted prior to death; and that her panties were pushed `way back to [her] throat' `touching the vertebrae of the neck[.]' A medical examiner testified that if someone had been watching, he or she would have seen coughing, gagging, throwing up, and difficulty breathing for two to four minutes. Taken in the light most favorable to the State, such evidence amply supports premeditation.
State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996) (quoting State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105, cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79(1995)).
State v. Rehak, 67 Wn. App. 157, 164, 834 P.2d 651 (1992), review denied, 120 Wn.2d 1022 (1993).
Pirtle, 127 Wn.2d at 643.
RP at 7611, 7620-21, 7637.
RP at 7626-27.
RP at 7640-41.
RP at 7620.
RP at 7624, 7651.
XIV.
The last issue is whether cumulative error denied Rasmussen a fair trial. It did not.
Arguments not discussed are meritless or need not be reached. Finding no argument that warrants reversal, we affirm the judgment entered below.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., BRIDGEWATER, J.
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