The State of Washington, Respondent, v. Cecil Emile Davis, Appellant, 141 Wash. 2d 798

Smith, J. — Appellant Cecil Emile Davis appeals his Pierce County Superior Court conviction and sentence for aggravated first degree murder. The jury, after finding Appellant “guilty” in the guilt phase of trial on February 6, 1998, determined in the penalty phase of trial on February 12, 1998 that he did not merit leniency. The trial court on February 23,1998 sentenced Appellant to death as required by statute. This Court’s mandatory review under RCW 10.95.100 began on March 2, 1998 upon filing of the notice of judgment and sentence imposing death. QUESTIONS PRESENTED The questions presented in this case are: (Guilt Phase)

(1) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and

article I, sections 3 and 22 of the Washington Constitution, the trial court erred in not sua sponte questioning prospective jurors concerning racial bias during voir dire examination and in not instructing the jury to exclude consideration of race as a factor in the case;

(2) Whether, under the Sixth Amendment to the United States Constitution and

article I,

section 22 of the Washington Constitution, the trial court erred in admitting the testimony of prosecution witness Keith D. Burks; and whether the trial court erred in allowing prosecuting attorneys to ask Mr. Burks on redirect examination, “With the people that you hang out with, is it a good thing or a bad thing to be labeled a snitch?”;

(3) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and

article I, sections 3 and 22 of the Washington Constitution, the trial court erred in admitting the testimony of prosecution witness Asil Hubley;

(4) Whether the trial court erred in admitting a videotape of the crime scene;

(5) Whether the trial court erred in refusing to admit unauthenticated Washington State population statistics obtained from the Internet;

(6) Whether the trial court erred in denying Appellant’s challenge to juror Number 6 and whether certain prospective jurors were properly excused for cause;

(7) Whether the trial court erred in not inquiring into the potential conflict of interest arising out of possible prior representation of a “jailhouse informer” by defense counsel’s public defense office;

(8) Whether the trial court erred in giving jury instruction Number 13 on aggravating circumstances and jury instruction Number 20 on requirements for conviction; (Penalty Phase)

(9) Whether, under the Eighth and Fourteenth Amendments to the United States Constitution and

article I, sections 14 and 22 of the Washington Constitution, Appellant was denied a fair trial because of prosecutorial misconduct in statements by prosecuting attorneys during the penalty phase of the trial; and

(10) Whether, under the Fourteenth Amendment to the United States Constitution, Appellant’s sentence of death was the result of prejudice which denied him a meaningful proportionality review mandated by RCW 10.95.130. STATEMENT OF FACTS On January 25,1997, the body of 65-year-old Ms. Yoshiko Couch was discovered in the upstairs bathtub of her home in Tacoma, Washington. Her body was found lying on its back, with the legs apart, submerged in bloody water approximately five to six inches deep. In the bathtub were biological tissue (blood clot), fecal matter, and Ms. Couch’s undergarment.

Wet towels and clothing were piled on top of the head and chest areas emitting a strong chemical odor. The body was not clothed from the waist down. A gold wedding band Ms. Couch wore on her left ring finger was missing. The events surrounding Ms. Couch’s death began the night before on January 24, 1997. That night there was a gathering of people at the house Appellant Davis lived in which was owned by his mother, Ms. Cozetta L. Taylor, located at 2012 East 57th Street in Tacoma, Washington. It was across the street and one house over from Ms. Couch’s residence at 2007 East 57th Street.

At approximately 2:30 o’clock the morning of January 25, 1997, Appellant, Codefendant George Anthony Wilson, and Keith D. Burks, Appellant’s 17-year-old Mend and a recent acquaintance of Mr. Wilson, were smoking cigarettes on the porch of Ms. Taylor’s house. Appellant was wearing brown suede gloves at the time. In the presence of Mr. Wilson and Mr. Burks, Appellant said “I need to rob somebody,” as he looked in the direction of Ms. Couch’s residence across the street. Then Ms. Lisa R. Taylor, Appellant’s sister, came outside and told the men to come inside because she was locking the house for the night.

Shortly after that Appellant said “I need to kill me a motherfucker.” Mr. Burks went back inside the house, while Appellant and Mr. Wilson remained outside. About five or six minutes later, Mr. Wilson came to the sliding glass door at the back of the house appearing wide-eyed and scared. Mr. Burks unlocked the door and let him in. According to Mr. Burks, Mr. Wilson told him he and Appellant “went over there to rip the lady off, but [Appellant] just kicked in the door and started beating on her and rubbing [her] all over.” Mr. Wilson told Mr.

Burks the woman was coming down the stairs, and that Appellant rubbed her breasts. He identified Ms. Couch as “the old woman across the street.” He also told Mr. Burks that as soon as he realized what Appellant was doing to the woman, he left the Couch residence. Mr. Burks went to sleep after listening to Mr. Wilson’s statements. At a later date, Mr. Burks made two statements to police authorities Later that morning, at approximately 11:00 o’clock, Jack A. Schauf and his wife, Ms. Asako Schauf, arrived at the Couch residence. They were scheduled to pick Ms. Couch up to attend a dance recital.

Ordinarily she would be ready and waiting for them whenever they gave her a ride. But on that day she was not waiting for them. The front door opened inward as Ms. Schauf knocked on it. There was no damage to the front screen door. Mr. Schauf entered the Couch residence with his wife. The Schaufs noticed wood chips and a striker plate from the doorsill on the floor. They went upstairs and took a cursory look around. Ms. Schauf, followed by her husband, proceeded to check on the physically disabled Richard Couch, husband of Ms. Couch, whose bedroom was located downstairs. Mr.

Schauf then went back upstairs and looked into a bedroom and the living room and noticed a white-powdery substance scattered around. Upon entering the bathroom adjacent to the kitchen, he found the body of Ms. Couch in the bathtub. Mr. Schauf felt Ms. Couch’s stomach and concluded she was dead. At the time of the incident, Mr. Couch had a heart condition and was disabled from several strokes. The left side of his body was paralyzed. He was able to walk only a few steps with assistance and was not able to walk up the stairs. He also took prescribed medication to help him sleep.

He was not aware of what happened in his home that morning. When Mr. Schauf went to use the telephone in Mr. Couch’s bedroom to call 911, he found the telephone, normally on a table next to the bed, in a closet three to four feet away from the bed. Mr. Couch was not informed of his wife’s death until after members of the Tacoma Fire Department Paramedic Unit arrived and confirmed she was dead. Richard Couch was retired from the United States Army. His wife was a homemaker and his primary caregiver. She did all the household shopping and purchased groceries at military commissaries in Pierce County.

She had recently purchased Kool Mild cigarettes and cans of Pepsi Cola for her husband, and small packages of meat and poultry, enough to feed two people. At the time of the incident, there were cans of Budweiser Light beer in the home. Ms. Couch always had cash on her person, either in the inside pocket of her purse or in an envelope. The Couches kept to themselves and had no African-American friends who visited their home. Tacoma Police Department forensic specialist Ms. Toni Wentland collected some hairs, fibers, and suspected blood from Ms. Couch’s mattress and bedcovers.

Forensic specialist Eric Berg gathered several pieces of evidence at the crime scene which included a utility box housing the telephone and television cables located on the outer left front corner of the Couch residence — cut marks on the telephone cable indicating an attempt to cut the telephone line; a completely severed television cable; a container of Comet cleanser recovered from the east bedroom; a white powdery substance, believed to be Comet cleanser, scattered mainly throughout the upstairs area of the house; a damp sponge with a gritty white powdery residue found on the railing at the top of the stairs; a similar white powdery residue found on Ms.

Couch’s body below the waist; Ms. Couch’s open purse, with no money in it, on the hallway floor outside the doorway to the southeast bed room; and a sleeping bag with a large amount of biological tissue (blood clot) recovered from the bed in the southeast bedroom. Forensic specialist Eric Berg did a thorough forensic investigation of the upstairs bathroom where Ms. Couch’s body was found. He observed a glove print on the bathroom mirror. In his opinion it was left by a leather glove. No fingerprints were recovered. Mr.

Berg noticed a very strong chemical odor in the bathroom and determined the odor was consistent with the household cleanser “Goof-Off.” A can of “Goof-Off” was found on the bathroom floor at the base of the bathtub. A plastic container with a scouring pad was also found there. The body of Ms. Couch was photographed as it was found in the bathtub. The entire crime scene, including the body, was photographed and videotaped before any evidence was collected. On January 27, 1997, Pierce County Associate Medical Examiner Roberto Ramoso, M.D., performed an autopsy on Ms. Yoshiko Couch. Dr.

Ramoso concluded the cause of her death was asphyxia by suffocation and neck compression and also xylene toxicity. He estimated the time of death at approximately 3:00 o’clock the morning of January 25, 1997. Medical Examiner Ramoso observed bruising around Ms. Couch’s eye area and hemorrhaging beneath her upper lip, indicating trauma caused by a blunt impact or pressure on her face. He also observed redness and blistering around her chin, neck, and upper torso areas. Portions of her face and hands showed deformation of the skin and changes in the structure of the tissue underneath the skin.

Those symptoms were consistent with skin coming in contact with the chemical xylene. In addition, a whitish dried secretion found on the inside of her nostrils was consistent with inhalation of xylene through the nose with some xylene going into the nostrils. Dr. Ramoso noted a strong odor emanating from the towels and clothing which accompanied Ms. Couch’s body to the morgue. He drew blood samples from the body for a toxicologist to analyze and examine for the presence of xylene. Also observed by Dr. Ramoso was evidence of trauma to Ms. Couch’s vagina.

The trauma consisted of a laceration wound, approximately one and three-quarters of an inch long, caused by a hard object, not a penis, penetrating the vaginal wall. The blood flow from the laceration indicated it was caused before Ms. Couch died. Dr. Ramoso testified the large amount of blood from such a vaginal laceration is consistent with the amount of blood found on the sleeping bag in the southeast bedroom. The Washington State Toxicology Laboratory analyzed the blood and pubic hair and head hair samples taken during the autopsy of Ms. Couch.

The analysis revealed her blood contained 21.2 milligrams per liter of xylene. Medical literature indicates that fatalities due to xylene exposure occur with concentrations of the substance between 3 to 40 milligrams per-liter. Death occurs in minutes if xylene is inhaled by a person from a cloth held in front of the face. Xylene is the active ingredient in the household cleanser “Goof-Off.” In Dr. Ramoso’s opinion, the xylene in Ms. Couch’s blood was most likely introduced by inhalation and skin absorption.

The Washington State Patrol (WSP) Crime Laboratory examined the hairs recovered from the crime scene and determined certain hairs had “Negroid” characteristics. The samples with Negroid characteristics were items B-6, B-7 and A-ll. Appellant and George Anthony Wilson are African-American. Control samples of pubic and head hairs from Ms. Couch, Appellant and Mr. Wilson were compared with the hairs recovered from the Couch residence. Hair sample item B-6, recovered from a bedspread found in the east bedroom, was inconclusive when compared to the hair samples provided by Appellant and Mr. Wilson.

Hair sample item B-7, taken from the bedspread in the southeast bedroom, contained one hair that was microscopically similar to Appellant’s head hair sample; he could be considered a possible source of that hair. One hair from hair sample item A-11 was determined to be microscopically similar to Appellant’s pubic hair sample. While Appellant’s hair samples did not specifically identify him as the source of the hairs recovered from the Couch residence, his hair samples could not be eliminated as a source. Mr. Wilson’s hair samples were microscopically dissimilar.

The WSP Crime Laboratory also examined a pair of Appellant’s black tennis shoes. Calcium carbonate with a trace amount of copper were found on the shoes. Those chemicals are commonly found in Comet cleanser. Bloodstains were also found on Appellant’s left tennis shoe. His shoes were sent to the Genelex Laboratory for DNA (deoxyribonucleic acid) testing, along with blood samples taken from Appellant and Ms. Couch. The laboratory determined the blood found on the shoe was not Appellant’s, but was consistent with Ms. Couch’s DNA; 1 in 625 persons of Japanese/Asian descent would share this DNA type.

On January 29, 1997, police officers executed a search warrant at Appellant’s residence. They recovered several items, including a carton of Kool Mild cigarettes and a package of meat from the freezer in his home with a label which read “$2.60 pork ham slice fresh” and a date of December 11, 1996. The Kool cigarette carton did not have a tax stamp, which is consistent with such items sold at the Fort Lewis Commissary. The meat item was packaged and price-marked by the Fort Lewis Commissary. Appellant was not employed at the time of the incident. His mother, Ms. Cozetta Taylor, and his sister, Ms.

Lisa Taylor, did the shopping for their household. They usually purchased large packages of meat, enough to feed at least 10 children and three adults. They purchased soda drinks in liter bottles, and not in cans, for the gathering on January 24,1997. Bottles of Olde English beer were also served at the gathering. No one in the family had military commissary privileges or smoked Kool Mild cigarettes. Police officers searched a garbage bag located downstairs next to the sliding glass door leading out to the patio area at the back of Appellant’s residence.

The trash bag contained cigarette butts, a can of Pepsi Cola, a can of Coca-Cola, glass bottles of Olde English beer, cans of Budweiser Light beer and its carton, and Kool Mild cigarette butts, packs and carton. Two latent fingerprints were recovered from the garbage. One fingerprint was taken from an empty Budweiser Light beer carton and matched Appellant’s left ring finger. The second fingerprint, lifted from an empty Kool Mild cigarette carton, matched Ms. Couch’s left thumb. In the early morning hours of January 25, 1997, Ms.

Jessica Cunningham, Appellant’s 14-year-old niece, was asleep at Appellant’s residence. However, between 3:30 to 4:00 a.m. she awoke and attempted to locate Appellant. Mr. Wilson and Mr. Burks were in the house, but she could not find Appellant. Later that morning, Appellant was in the kitchen looking out the window at the police investigation across the street. Police officers were talking to one of his neighbors and Appellant observed the neighbor point toward Appellant’s residence. Appellant remarked, in the presence of his sister, Ms.

Lisa Taylor, “that bitch is next.” Later that day, police officers visited Appellant’s residence. He answered the door, did not speak to them and left the house. Appellant returned after the officers left and asked his mother for some Comet cleanser because he wanted to do some cleaning. Appellant obtained a different type of cleaning product and cleaned the downstairs area of the house he lived in. He threw some items into a trash bag in the back yard. He also at least twice washed the clothing he wore on the night of January 24, 1997.

That same day, January 25, 1997, Appellant offered to sell a gold wedding band to his mother for $10. She declined and returned it to him. Ms. Lisa Hubley, his niece, observed him wearing a gold wedding band on his “pinky” finger. Appellant was also observed to have in his possession cash, Kool Mild cigarettes, and cans of Coca-Cola, Pepsi Cola, and Budweiser Light beer. He cooked chicken from a package without a store brand-name on it. None of these items had been observed in his possession the day before on January 24, 1997. A few days after the incident, Appellant told Ms. Kyllo A.

Cunningham, his niece, that Ms. Couch was found with towels over her head. That information had not at that time been publicly released by the police. After the incident, Asil Hubley, Appellant’s 16-year-old nephew, spoke with Mr. Wilson, whom he considered a close friend, on three occasions regarding the extent of Mr. Wilson’s involvement in the incident. On one occasion, Mr. Wilson told Mr. Hubley he had been inside the upstairs bathroom of the Couch residence. On another occasion, Mr. Wilson told Mr. Hubley he stayed on the couch in the house and heard noises coming from the bedroom. On a third occasion, Mr.

Wilson told Mr. Hubley he did not go into the Couch home. The second and third statements were made after Mr. Wilson learned the police wanted to talk to him about the incident. On January 28,1997, Appellant was arrested and held in the Pierce County Jail. While in custody in early February, he had a conversation with another prisoner, Shelbey B. Johnson. Appellant asked Mr. Johnson if he could read his newspaper. He told Mr.

Johnson he had heard “that the newspaper’s saying that [Appellant] raped the old bitch, quote, that I may have killed her, but I didn’t rape her.” Appellant said he would file a lawsuit against the newspaper if it falsely stated he raped the woman. Appellant on February 3, 1997 was charged by information in the Pierce County Superior Court with aggravated murder in the first degree and, in the alternative, murder in the first degree.

The aggravated circumstances included the allegation that the murder was committed in the course of the crime of robbery in the first or second degree, and/or rape in the first or second degree, and/or burglary in the first or second degree or residential burglary. A notice of intent to seek the death penalty was timely filed on June 10, 1997. The information also charged Codefendant George Anthony Wilson with murder in the first degree. The case was preassigned to the Honorable Terry D. Sebring on February 11, 1997. Pretrial motions were heard before Judge Sebring beginning on June 24, 1997.

The trial of Appellant and Codefendant Wilson before Judge Sebring began on November 3,1997. Judge Sebring became ill during voir dire examination of the jury. Appellant objected to his replacement by another judge. On November 12, 1997, the Honorable Frederick B. Hayes granted a mistrial under Criminal Rule (CrR) 6.11(a). A new trial began with jury selection on January 5, 1998 before the Honorable Frederick W. Fleming. Testimony in the guilt phase began on January 22, 1998.

On February 6, 1998, the jury returned a verdict of “guilty” of premeditated murder in the first degree with the aggravating circumstances of rape, robbery and burglary, and felony murder in the first degree. On February 9, 1998, Appellant moved to strike the special sentencing proceeding, or in the alternative for a mistrial, alleging inconsistent verdicts. The trial court denied both motions. The penalty phase of the trial began on February 10, 1998. On February 12, 1998 the jury returned a verdict finding there were not sufficient mitigating circumstances to merit leniency.

The trial court on February 23, 1998 sentenced Appellant to be punished by death. DISCUSSION Appellant Cecil Emile Davis made assignments of error which may be generally classified under the subjects (1) risk of racial prejudice, (2) admissibility of certain evidence, (3) death qualification of jurors, (4) conflict of interest, (5) jury instructions and (6) prosecutorial misconduct. This Court is required under RCW 10.95.130(1) to review a sentence of death. Most of the assignments of error relate to the “guilt phase” and only a few relate to the “penalty phase.” Risk of Racial Prejudice

(1) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and

article I, sections 3 and 22 of the Washington Constitution, the trial court erred in not sua sponte questioning prospective jurors concerning racial bias during voir dire examination; and whether the trial court erred in not instructing the jury to exclude consideration of race as a factor in the case.

VOIR DIRE The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed ....” The Fourteenth Amendment to the United States Constitution provides: “[N]or shall any state deprive any person of life, liberty, or property, without due process of law . ..

Article I,

section 3 of the Washington Constitution providés: “No person shall be deprived of life, liberty, or property, without due process of law.”

Article I,

section 22 of the Washington Constitution provides: In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases ....

The Sixth and Fourteenth Amendments to the United States Constitution guarantee the right of an accused in all criminal prosecutions to trial by an impartial jury. The Washington Constitution provides a similar guaranty. Under the laws of Washington, the right to a jury trial includes the right to an unbiased and unprejudiced jury. “ ‘The failure to accord an accused a fair hearing violates even the minimal standards of due process.’ ” “[M]ore important than speedy justice is the recognition that every defendant is entitled to a fair trial before 12 unprejudiced and unbiased jurors.

Not only should there be a fair trial, but there should be no lingering doubt about it.” The process of voir dire in selecting an impartial jury is stated in CrR 6.4(

b) which provides: Avoir dire examination shall be conducted for the purpose of discovering any basis for challenge for cause and for the purpose of gaining knowledge to enable an intelligent exercise of peremptory challenges. The judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case.

The judge and counsel may then ask the prospective jurors questions touching their qualifications to serve as jurors in the case, subject to the supervision of the court as appropriate to the facts of the case. (Emphasis added.) It is well settled that trial courts have discretion in determining how best to conduct voir dire.

Voir dire “ ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ ” Although adequate voir dire is not easily the subject of appellate review, it is necessary to discover bias in prospective jurors and to assist the trial court in its responsibility to remove prospective jurors who will not be able to follow its instructions on the law. The trial court’s exercise of discretion is limited only when the record reveals that the court abused its discretion and thus prejudiced the defendant’s right to a fair trial by an impartial jury.

Therefore, absent an abuse of discretion and a showing that the rights of an accused have been substantially prejudiced, a trial court’s ruling on the scope and content of voir dire will not be disturbed on appeal. In this case, Appellant Cecil Emile Davis, an African-American male, was found “guilty” of murdering Ms. Yoshiko Couch, a Japanese-American female. Appellant contends the crime was “interracial” and for that reason the trial judge was required to question sua sponte prospective jurors about their racial prejudices and instruct them to exclude race as a factor in their deliberations.

He argues that, in spite of the decision by his own counsel not to ask such race-related questions of the prospective jurors, the trial court nevertheless was required to act on Appellant’s behalf and bring race and ethnicity to their attention. An accused has the right to carefully examine prospective jurors on voir dire to an extent necessary to afford the accused “every reasonable protection.” Appellant does not contend he was denied or otherwise limited in the exercise of this right. During voir dire, the trial court allowed the lawyers to question prospective jurors about racial bias or prejudice.

At no time during voir dire did the court deny Appellant’s counsel an opportunity to question prospective jurors concerning their views on racial prejudice, but his counsel asked no such questions. Nor did Appellant’s counsel object during voir dire to the manner in which it was being conducted. The trial court allowed individual voir dire of each prospective juror, out of the presence of other prospective jurors, by both parties and gave each side wide latitude on the topics and range of inquiry. The subject of “race” was mentioned 13 times during the nine days of voir dire.

In each instance the subject arose in response to questions by the prosecuting attorneys.

The United States Supreme Court has acknowledged “there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence[.]” However, the Court has also held “[t]here is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups.” “Individual jurors bring to their deliberations ‘qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.’ ” Indeed, capital sentencing necessarily is based on subjective determinations. “Of course, ‘the power to be lenient [also] is the power to discriminate.’ ” The question becomes one of determining at what point the risk of racial prejudice becomes constitutionally unacceptable.

In a line of United States Supreme Court cases, racial prejudice has been accepted by the Court as a basis for a constitutional challenge to a trial court’s voir dire procedure. The Court has recognized two types of cases concerning the extent of voir dire: cases tried in federal courts, which are subject to the Court’s supervisory power; and cases tried in state courts, for which the Court’s authority is limited to enforcing provisions of the United States Constitution. In Connors v.

United States, the Supreme Court stated: “ ‘[A] suitable [voir dire] inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by [the juror] of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases.’ ” In Aldridge v. United States, the defendant was an African-American male and the victim was a Caucasian police officer.

Defense counsel requested the trial court to question prospective jurors whether they might be prejudiced against the defendant because of his race. The Supreme Court held it was reversible error for the court not to have posed such a question, observing that “ ‘[t]he Court failed to ask any question which could be deemed to cover the subject.’ ” In Rosales-Lopez v. United States, the defendant, a Mexican-American, was charged with illegally bringing Mexican nationals into the United States.

The Supreme Court held that a federal court must inquire about racial prejudice, not in all cases, but only in cases where the defendant was accused of a violent crime and the defendant and the victim were members of different racial or ethnic groups. Absent such circumstances, the Constitution leaves it to the trial court’s discretion to determine the need for such questions. In Ham v. South Carolina, the Supreme Court explained the kind of circumstances that would require questioning prospective jurors to ensure the jury remains “indifferent” and able to render an unbiased decision.

The defendant was an African-American civil rights activist accused of marijuana possession. His defense was that law enforcement officers had framed him in retaliation for his civil rights activities and because of his race. The trial court denied the defendant’s request to ask questions of prospective jurors concerning racial prejudice. The Supreme Court held the defendant was constitutionally entitled to question prospective jurors about their possible racial prejudice when the factual circumstances of the case raised a “reasonable possibility” that racial prejudice could influence the jury. In Ristaino v.

Ross, the defendant was an African-American male convicted of assaulting a Caucasian security guard. Defendant’s request to question prospective jurors concerning racial prejudice was denied by the trial court.

The Supreme Court held that the trial court must conduct specific questioning to disclose racial bias, when “[r] acial issues [are] inextricably bound up with the conduct of the trial.” In that case, notwithstanding that the defendant and the victim were of different races, the Court declined to find the circumstances necessary to compel the trial judge to inquire into the racial biases of prospective jurors.

The Court noted generally that the questions to be asked during voir dire are largely discretionary with the trial court and “[t]hus, the State’s obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant.” The Court observed that the defendant was not singled out for arrest or prosecution because of his race and it was mere happenstance that he was of a different race than the victim. In Turner v.

Murray, the defendant was an African-American male charged with capital murder for shooting the Caucasian proprietor of a jewelry store. The trial court precluded the defendant from asking questions of prospective jurors concerning their possible racial prejudice. The jury convicted the defendant and sentenced him to death.

The Supreme Court vacated the death sentence, holding that, upon defendant’s request, “a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” In that case, the Court announced guidelines for determining whether questioning of jurors on race is mandatory. “ ‘The broad inquiry in each case must be . . . whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be as indifferent as [they stand] unsworne.’ ” However, the Court did not reverse the defendant’s conviction and found that, with respect to the guilt phase of the trial, the principles previously articulated in Ristaino should continue to be followed.

But the Court did reverse on the penalty phase. In addition, the United States Supreme Court has acknowledged the reluctance of trial judges to question prospective jurors about racial prejudice for fear such an inquiry would improperly inject the issue of race into a case and create the impression “that justice in a court of law may turn upon the pigmentation of skin [or] the accident of birth.” The Court has recognized the conflict between this justifiable hesitancy by trial judges and the need to discover jurors who might be disqualified because of racial or ethnic prejudice.

The question whether the trial court must inquire into any possible racial prejudice against the defendant, upon the defendant’s request, has been addressed by the United States Supreme Court in two criminal case contexts: noncapital cases and capital cases. In noncapital criminal cases, “special circumstances” under which the federal constitution requires questioning on racial prejudice were described in Ristaino v. Ross.

Special circumstances exist if racial issues are “ ‘inextricably bound up with the conduct of the trial.’ ” However, the Court held that in the absence of special circumstances, the federal constitution does not require voir dire inquiry into the possible racial prejudice of prospective jurors. The Court, in its supervisory capacity, announced a nonconstitutional requirement that federal courts must grant a defendant’s request for voir dire inquiry on racial prejudice if the circumstances of the case reveal a “reasonable possibility” that racial or ethnic prejudice may influence the jury.

The Supreme Court held that a situation involving the “reasonable possibility” of racial or ethnic prejudice may arise when a defendant is accused of a violent crime and the defendant and the victim are members of different racial or ethnic groups. Under those circumstances, federal courts must make an inquiry into that possibility. Federal trial courts are held to a higher standard than the United States Constitution requires. The same higher standard applies to Washington State courts under

article I, sections 3 and 22 of the Washington Constitution. Inquiry into possible racial prejudice in capital cases has been allowed in capital sentencing cases. In a capital sentencing hearing (penalty phase), a defendant convicted of an “interracial” murder is entitled to question prospective jurors about possible racial prejudice without regard to the circumstances of the particular case. The Washington statute under which Appellant Davis was sentenced is similar to the Virginia sentencing statute under which the death penalty was imposed in Turner.

In Turner, the United States Supreme Court held that a capital murder defendant “accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” In a footnote, though, the Court addressed Justice Powell’s contention that questioning prospective jurors about their racial prejudice “in the absence of circumstances that make clear a need for it could well have the negative effect of suggesting to the jurors that race somehow is relevant to the case.” The Court, in response, stated: Whether such a concern is purely chimerical or not is a decision we leave up to a capital defendant’s counsel.

Should defendant’s counsel decline to request voir dire on the subject of racial prejudice, we in no way require or suggest that the judge broach the topic sua sponte.[] (Emphasis added.) The Court further clarified by stating: The rule we propose is minimally intrusive; as in other cases involving “special circumstances,” the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively.

Also, a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry.[] (Emphasis added.) Turner involved refusal by a trial judge to allow questioning of prospective jurors on racial prejudice during voir dire after it was requested by defense counsel. The Court concluded that federal due process requires that a capital defendant be allowed to question prospective jurors on the issue of racial prejudice.

The Supreme Court stated that a capital defendant may not complain about the court’s not offering such questions unless the defendant has specifically requested an inquiry.

The Court also observed that the decision to question prospective jurors about racial prejudice is best left to defense counsel. “The Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.” Turner does not require a trial court to sua sponte question prospective jurors during voir dire concerning the possibility of racial prejudice unless a request is made by the defendant.

In this case, the trial court did not deprive Appellant Davis of his right to a fair trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution. The court had no obligation to raise the question of racial prejudice when it was not requested by the defendant or his counsel. Appellant concedes the United States Constitution was not offended because there was no denial by the trial court of his right to question prospective jurors about their possible racial prejudice.

But he argues the laws of Washington afford him “more stringent procedural safeguards than the federal constitution provides.” This Court will not address a claim that the Washington Constitution guarantees more protection than the federal constitution unless the Appellant adequately briefs and argues the Gunwall factors. Appellant has not done so in this case.

Appellant merely claims “the taint of racial bias” played a role in his death sentence because his case showed “compelling need” for questions to prospective jurors about their racial biases and instruction by the trial court to jurors to exclude race as a factor in their deliberations. Appellant attempts to rely upon case law establishing that the federal constitution provides only minimal protection of individual rights and, accordingly, state courts in Washington are not limited in affording greater rights under the Washington Constitution.

But he cites no authority for his contention that he was denied a fair trial by an impartial jury in violation of

article I, sections 3 and 22 of the Washington Constitution. Three broad inquiries are relevant in this case: (1) whether the fact that jurors were not informed of the race of the victim in an interracial crime during voir dire examination negatively affected their impartiality; (2) whether the absence of such information would be cured by instructions from the trial court; and (3) whether, in any event, the absence of such information prejudiced Appellant in this case. Juror Impartiality Appellant has not established his claim that “the taint of racial bias” denied him a fair trial by an impartial jury.

There is nothing in the record to support his conclusion. The voir dire in this case extended over nine days and began with a panel of 120 prospective jurors. On January 5, 1998, the trial court read the “Death Penalty, Opening Jury Instruction” to the panel. That same day, the court distributed to the panel the “Juror Questionnaire” and a document entitled “To Prospective Jurors.” On January 7, 1998, the court assembled the first six prospective jurors in a jury room and separately called each into open court one at a time.

Individual voir dire of each prospective juror by the trial judge, the prosecuting attorneys, Appellant’s counsel and codefendant’s counsel continued until 51 prospective jurors were passed for cause, but 2 were later excused, leaving the total at 49. The State and each defendant were allowed to question each prospective juror. The questioning dealt primarily with their willingness to impose the death penalty, but each juror was questioned about other matters as well, particularly if the juror responded affirmatively to any of the questions on the jury questionnaire.

No prospective jurors indicated they had racial bias or prejudice that would impair their ability to render a decision in the case based solely upon the law and the evidence. After peremptory challenges were exercised, 15 jurors were eventually selected. Both Appellant and the State accepted the jury as constituted and neither exhausted the peremptory challenges they were individually allowed. Appellant did not use two remaining peremptory challenges. Appellant can not establish he suffered any prejudice from the composition of the jury. All the jurors selected were Caucasian.

The mere fact that no African-Americans nor Asian-Americans were on the jury is not sufficient of itself to establish racial prejudice. Appellant does not claim that race was a significant factor in his case. On the first day of jury selection, the judge instructed the entire panel of prospective jurors generally that, if they should be selected to serve, their decision must not be based upon bias or prejudice against Appellant. They were then individually questioned.

During the lengthy voir dire procedure, the prosecuting attorneys initiated all questioning to determine possible racial bias on the part of each juror. Neither Appellant nor his codefendant asked any prospective juror about possible racial bias or prejudice. None of counsel raised the issue of race during the remainder of the trial. There is absolutely nothing in the record to support a conclusion the case was racially charged.

While the United States Supreme Court in Turner observed that capital cases are unique and entitle a defendant to further inquiry into the racial prejudice of prospective jurors, the Court determined that the decision by a jury during a sentencing hearing (penalty phase) in a capital case differs from a determination of guilt because the potential is greater, during the sentencing hearing, for outside factors, such as race, to affect the jury’s conclusion. The Court stated in a footnote that “we do not retreat from our holding in Ristaino.

The fact of interracial violence alone is not a ‘special circumstance’ entitling the defendant to have prospective jurors questioned about racial prejudice.” The mere fact that Appellant and the victim in this case were of different races does not constitutionally mandate voir dire on the issue of race. There is no evidence in the record to suggest that Appellant was singled out because of his race.

The United States Supreme Court has emphasized that “[t]he Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him.” A trial court “retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively.” The trial court in this case did not abuse its discretion.

Appellant has not shown that the discretion exercised by the trial court in not sua sponte injecting the subject of race was contrary to, or involved an unreasonable application of, clearly established state and federal law as determined by this Court or the United States Supreme Court. Jury Instruction on Voir Dire The trial court is afforded broad discretion in conducting voir dire.

Under Turner, a trial court in a capital case need not question prospective jurors sua sponte during voir dire nor instruct the jury to disregard racial considerations where a defendant has not asked for it or for an opportunity to question prospective jurors concerning it. The decision whether to raise the issue of race, considering the effect such questioning may have in unnecessarily bringing it to the attention of the jurors, is best left to defense counsel.

The trial court in this case did not abuse its discretion by not sua sponte instructing prospective jurors to disregard the factor of race in their deliberations. Prejudice Appellant has not established that he was prejudiced by the decision of the judge not to question prospective jurors sua sponte concerning racial prejudice on voir dire or to instruct the jury to exclude race as a factor in their deliberations. There was substantial evidence to support a finding of guilt in this case. There is nothing in the record to suggest the jury improperly considered race in reaching its decision.

Appellant was afforded all his rights under both the United States Constitution and the Washington Constitution. Admissibility of Certain Evidence TESTIMONY OF KEITH D. BURKS

(2) Whether, under the Sixth Amendment to the United States Constitution and

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section 22 of the Washington Constitution, the trial court erred in admitting the testimony of Keith D. Burks; and whether the trial court erred in allowing the prosecuting attorneys to ask Mr. Burks on redirect examination, “With the people that you hang out with, is it a good thing or a bad thing to be labeled a snitch?” In this case, Appellant contends the trial court erred in admitting the testimony of Keith D. Burks concerning the events on the morning of January 25,1997 as told to him by Codefendant Wilson. He claims the hearsay statement made by Mr. Wilson to Mr.

Burks, determined by the trial court to fall within the “excited utterance” exception to the hearsay rule, was not “trustworthy and reliable.” In addition, Appellant argues Codefendant Wilson’s hearsay statement to Mr. Burks implicated him in violation of his right to confront the witnesses against him under the Sixth Amendment to the United States Constitution and Washington Constitution

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section 22. A defendant may prevail on a claim of prosecutorial misconduct upon showing the conduct of the prosecuting attorney was improper and had a prejudicial effect on the jury’s verdict provided an objection is made and a curative instruction is requested unless such an instruction would not cure it. Appellant’s claim of prosecutorial misconduct for questioning Mr. Burks is without merit.

A criminal defendant’s rights under the confrontation clause are not violated when the relator of a hearsay statement admitted under the excited utterance exception is available for cross-examination as a witness under oath and whose demeanor, observations, and perceptions of the events that existed at the time the declarant’s statement was made can be assessed by the trier of fact. Contrary to Appellant’s claims, the State argues the trial court properly admitted Mr. Burks’ testimony in accord with its determination that the testimony constituted an “excited utterance” under ER 803(a)(2).

The State also asserts Mr. Burks’ testimony did not offend Appellant’s rights under the confrontation clause because the testimony fell within “a firmly rooted exception to the hearsay rule” and was imbued with “particularized guarantees of trustworthiness.” The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him[.]” Similarly,

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section 22 of the Washington Constitution provides: “In criminal prosecutions the accused shall have the right to ... meet the witnesses against him face to face[.]” The federal confrontation clause under the Sixth Amendment to the United States Constitution is applicable to the states under the due process clause of the Fourteenth Amendment. A determination by the trial court that a hearsay statement falls within the excited utterance exception under ER 803(a)(2) will not be disturbed on appeal absent an abuse of discretion. Appellant relies upon State v.

Brown for the proposition that Codefendant Wilson’s statement to Mr. Burks was not trustworthy or reliable, and was improperly construed by the trial court as an “excited utterance” exception to the hearsay rule. The State correctly argues this case is factually distinguishable from Brown. In Brown, the alleged rape victim reported to police authorities that she was abducted and raped. At a pretrial hearing, the trial court ruled the 911 tape of her telephone call was admissible as an excited utterance exception to the hearsay rule.

At trial, the victim testified she had lied to the police about being abducted because she thought they would not take the case seriously, knowing she was a prostitute and had agreed to meet with the defendant to commit fellatio for money. This Court reversed the defendant’s conviction, concluding the trial court had abused its discretion in ruling the alleged victim’s 911 telephone call was an excited utterance, holding that her testimony evidenced not only the opportunity to fabricate, but represented an actual fabrication of part of her story prior to making the 911 call.

In this case, there was no evidence that Codefendant Wilson fabricated his statements to Mr. Burks. In addition, Mr. Wilson’s statement to Mr. Hubley does not impeach the credibility of his statement to Mr. Burks. Mr. Burks testified that Mr. Wilson told him he was on the porch when Appellant kicked in the front door to the Couch residence and began assaulting Ms. Couch. However, Mr. Wilson did not tell Mr. Burks he did not enter the home. He told him he was on the porch when Appellant kicked in the door. Mr. Burks testified at trial that he did not know whether Mr. Wilson went into the home. Mr.

Wilson later told Mr. Hubley on one occasion that he was inside the Couch residence. Mr. Hubley’s testimony does not contradict Mr. Wilson’s statement to Mr. Burks because he did not deny to Mr. Burks that he went inside the home. The facts in this case are distinguishable from the facts in Brown. The hearsay rule precludes admission of out-of-court statements to prove the truth of the fact asserted, except as provided by the Rules of Evidence, court rules, or statute. By definition, some out-of-court statements are not hearsay.

Even though hearsay, certain out-of-court statements are admissible as an exception to the hearsay rule. Under ER 803(a)(2), the excited utterance exception provides: (

a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.[] The excited utterance exception is based upon the theory that a statement made as a spontaneous reaction to the stress of a startling event offers little to no opportunity for misrepresentation or conscious fabrication.

A hearsay statement qualifies as an excited utterance under ER 803(a)(2) if (1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition. Under these principles, the statements of Codefendant Wilson to Mr. Burks qualify as an excited utterance. Appellant’s brutal attack upon Ms. Couch was a startling event witnessed by Codefendant Wilson. In his statement to Mr.

Burks, he disclosed his own intention to “rip the lady off,” but was surprised as Appellant began to beat her and rub her all over. Codefendant Wilson’s reaction to this unexpected turn of events was to leave the Couch residence within minutes of his arrival without taking any property. Appellant’s attack upon Ms.

Couch was a startling event creating stress for Codefendant Wilson. “The key to the second element is spontaneity.” Ideally, the statements should be made contemporaneously with or immediately after the startling event, because the opportunity for reflective thought and the danger of fabrication are minimized. The longer the time period between the event and the statement, the greater the need for proof the declarant did not engage in reflective thought prior to making the statement.

In addition, other factors surrounding the startling event and the statement may be considered in determining whether the declarant was still under the effect of the excitement caused by the event. In this case, the time interval between the startling event and the statement was brief. Only five to six minutes passed before Codefendant Wilson appeared at the sliding glass door at the back of Appellant’s residence and told Mr. Burks he left the Couch residence as soon as he realized what Appellant was doing to Ms. Couch. It took Mr. Wilson only about two minutes to cross the street and knock on the back door.

The opportunity for him to reflect on the statement was minimal and the evidence supports a conclusion he was under stress when he spoke to Mr. Burks. His appearance and demeanor support a conclusion he was still reacting to a startling event. His statement explained the facts leading up to the event; Ms. Couch came down the stairs and Appellant beat her and rubbed her breasts; and he reacted to the event by leaving the Couch residence when he realized what Appellant was doing to Ms. Couch.

The requirements for admissibility of an excited utterance as an exception to the hearsay rule under ER 803(a)(2) are satisfied under the evidence in this case since there was a startling event to which the statement related; and the spontaneity of the statement was preserved because the time between the event and the statement was sufficiently slight to ensure that when he made the statement to Mr. Burks, Mr. Wilson was still under the stress of witnessing Appellant’s attack upon Ms. Couch. Appellant’s emphasis upon the United States Supreme Court decision in Lilly v.

Virginia, in support of his argument that his rights under the confrontation clause were violated, is misplaced. The State correctly asserts Codefendant Wilson’s statement to Mr.

Burks did not violate Appellant’s rights under the confrontation clause because the statement fell within a “firmly rooted” exception to the hearsay rule, the excited utterance exception under ER 803(a)(2), and contained “particularized guarantees of trustworthiness.” “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” When the State seeks to offer a declarant’s hearsay statements against the accused, and the declarant is unavailable, “courts must decide whether the Clause permits the [State] to deny the accused his usual right to force the declarant ‘to submit to cross examination[.]’ ” The United States Supreme Court has consistently held that “the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause.” The Supreme Court has indicated “ ‘a preference for face-to-face confrontation [with witnesses] at trial,’ ” acknowledging “that such confrontation is [not] an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” The Supreme Court adheres to the general rule it articulated in Ohio v.

Roberts that admissibility of a hearsay statement does not offend the confrontation clause “if [the statement] bears adequate ‘indicia of reliability.’ Reliability can be inferred . . . where [the hearsay statement (1)] falls within a firmly rooted hearsay exception [or (2) contains] particularized guarantees of trustworthiness.” Ahearsay statement that “qualifies for admission under a ‘firmly rooted’hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability.” The Supreme Court has stated that the excited utterance exception to the hearsay rule is a “firmly rooted hearsay exception” that carries sufficient indicia of reliability to satisfy the reliability requirements of the confrontation clause.

In this case, Codefendant Wilson’s statement to Mr. Burks is reliable because it falls within a “firmly rooted” hearsay exception, the excited utterance exception under ER 803(a)(2), and does not offend Appellant’s rights under the confrontation clause. While the Supreme Court has held the indicia of reliability of a codefendant’s confession, which implicated the nontestifying defendant, was sufficiently reliable under the Roberts test, Appellant is correct in his assertion that the Court in Lilly v.

Virginia concluded the admission of a nontestifying accomplice’s confession in a trial against the defendant violated the defendant’s rights under the confrontation clause. However, Lilly is distinguishable from the facts of this case. In Lilly v. Virginia the confession of a nontestifying accomplice, which implicated the defendant, was admitted against the defendant in a separate trial on the grounds that it satisfied Virginia’s “statement against penal interest” exception to the hearsay rule.

A plurality of four Justices relied upon “[t]he decisive fact... that accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” The Court in Lilly found unreliable an accomplice’s confession obtained in police custody because of the accomplice’s natural motive to attempt to exculpate himself. In a footnote, the Court referred to Dutton v.

Evans as the only exception to its “unbroken line of cases” holding that “the admission of an accomplice’s spontaneous comment that indirectly inculpated the defendant did not violate the Confrontation Clause.” The Court clarified its holding in Dutton by stating “[wjhile Justice Stewart’s plurality opinion observed that the declarant’s statement was ‘against his penal interest,’ the Court’s judgment did not rest on that point,. . . [rjather, the five Justices in the majority emphasized the unique aspects of the case and emphasized that the co-conspirator spontaneously made the statement and ‘had no apparent reason to lie: ” The Supreme Court in Lilly specifically mentioned “spontaneous declarations” as an example of a “firmly rooted” exception to the hearsay rule.

Similarly, this Court has determined that admission of a codefendant’s hearsay statement does not offend the confrontation clause if it falls within a “firmly rooted” hearsay exception. The Roberts test requires that the hearsay exception be firmly rooted or contain particularized guaranties of trustworthiness. Because the excited utterance exception under ER 803(a)(2) is a firmly rooted hearsay exception, Codefendant Wilson’s statement to Mr. Burks satisfies the requirements of Roberts. Inquiry into whether the hearsay statement is trustworthy is not necessary.

In this case, the trial court did not abuse its discretion in finding the testimony of Keith D. Burks admissible under the excited utterance exception to the hearsay rule. Admission of Mr. Burks’ testimony at trial did not offend confrontation clause principles because the statement fell within a firmly rooted exception to the hearsay rule. Appellant’s right to confront witnesses was not violated in this case. In addition, Appellant contends the trial court erred in allowing the prosecuting attorneys to ask Keith D.

Burks on redirect examination, “With the people that you hang out with, is it a good thing or a bad thing to be labeled a snitch?” Appellant argues “[t]he defense objected to this question,” but the trial court overruled the objection and allowed the State to ask it. The State argues, to the contrary, that Appellant Davis did not object to the prosecuting attorney’s question, nor to Mr. Burks’ response, and only Codefendant Wilson’s counsel made an objection to the question at trial. The State’s version of the trial proceedings concerning this issue is correct.

Appellant’s counsel made no objection to the question it now argues was erroneously allowed. Without an objection, an evidentiary error is not preserved for appeal. Appellant cannot rely upon the objection of a codefendant’s counsel to preserve an evidentiary error on appeal. This issue is not properly raised before this Court. TESTIMONY OF ASIL HUBLEY

(3) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and

article I, sections 3 and 22 of the Washington Constitution, the trial court erred in admitting the testimony of prosecution witness Asil Hubley. Appellant contends “the prosecutor’s conduct in selectively asserting the truthfulness and reliability of [codefendant] Wilson’s ‘excited utterance’ to Keith D. Burks by offering the testimony of Asil Hubley” violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and

article I, sections 3 and 22 of the Washington Constitution. Appellant attempts to argue that the trial court erred in admitting the testimony of Asil Hubley. He claims the prosecuting attorney impeached Mr. Burks’ testimony by offering the testimony of Mr. Hubley, a witness for the State. The State maintains Appellant’s contentions are not correct and the trial court properly admitted the testimony of Mr. Hubley. During the trial before Judge Fleming, the court allowed the State to ask Mr. Hubley four leading questions. Mr. Hubley’s testimony consisted mainly of his responses to those four questions asked by the State on direct examination. The four questions and Mr. Hubley’s answers were:

(1) Did [codefendant] Anthony Wilson tell you at one point that he was inside the bathroom of the woman’s [Ms. Couch’s] home? ANSWER: Yes.

(2) Did he later tell you that he stayed on the couch in the house and heard noises coming from the bathroom? ANSWER: Yes.

(3) Later still did he tell you he wasn’t even inside of her house? ANSWER: Yes.

(4) Were the second and third things that [codefendant] Anthony Wilson told you after he found out the police were wanting to talk to him about this case? ANSWER: Yes.[] The ruling by the judge is not quite clear, but Judge Fleming stated “[the four questions are] leading, but. . . [the questions] will be allowed in order not to prejudice either side. I’m going to trust that the best interests of the particular defendants will restrict sufficiently cross-examination so as not to offend Bruton. . . .

I’m not restricting the cross-examination.” The court advised counsel that if any potential problems arose during the trial, he would excuse the jury, listen to the questions of concern, and entertain an offer of proof as to what reference counsel intended to make regarding Mr. Hubley. However, Judge Fleming ultimately affirmed his ruling and allowed the four leading questions. Appellant objected to the State’s questions and moved to exclude them. Then, Codefendant Wilson objected to the court’s ruling allowing the State to ask Mr. Hubley the leading questions.

Later, Appellant objected to use of a redacted statement and moved for severance and mistrial. The court denied both motions and stated that cross-examination of Mr. Hubley would not be limited except Codefendant Wilson should adhere to the approved redacted version of the statement for cross-examination. Properly argued at trial and on appeal, the issue quite simply would have been objection to the leading form of the four questions and objection to the inadmissible hearsay the questions presented. But this was not done. Appellant does not make a clear argument on the issue on appeal.

Even assuming it was error to allow the leading questions, the error was harmless. Videotape of Crime Scene

(4) Whether the trial court erred in admitting a videotape of the crime scene. Appellant claims the trial court erred in admitting a videotape of the crime scene. He points out that several still photographs depicting Ms. Couch’s body in the bathtub were admitted into evidence. He claims the videotape, including a 30-second excerpt showing how the body was found in the bathroom, was not probative but duplicative, likely inflamed the jury, and created an impermissible risk that his death sentence was prejudiced.

The State contends the trial court properly exercised its discretion in admitting the videotape of the crime scene because it was relevant to the case and not unduly prejudicial. The decision whether to admit photographic evidence lies within the sound discretion of the trial court. The trial court’s decision will not be disturbed on appeal unless there is “a clear showing of abuse of discretion, that is, discretion manifestly unreasonable or exercised on untenable grounds or for untenable reasons.” A court abuses its discretion where no reasonable person would adopt such a view.

Even gruesome photographs are admissible if the trial court determines their probative value outweighs their prejudicial effect. In this case, the trial court did not abuse its discretion because the videotape documented the police investigation at the Couch residence shortly after investigators arrived at the scene. The trial court viewed the videotape in camera and concluded it was not prejudicial and that it merely showed the crime scene and would help to orient the jury to the Couch residence. He concluded it did not unduly emphasize the victim’s body disproportionately to the videotape as a whole.

The videotape was probative in aiding the jury’s understanding of the crime scene. The trial court did not abuse its discretion in admitting the videotape. Washington State Population Statistics

(5) Whether the trial court erred in refusing to admit unauthenticated Washington State population statistics obtained from the Internet. Appellant contends the trial court erred in not admitting Washington State population statistics. He claims the hard copy printout his counsel obtained from the Internet was a self-authenticating document admissible under ER 902(e). The State argues the trial court did not err in excluding the document as hearsay not admissible under a recognized exception to the hearsay rule. The evidentiary rulings of a trial court are reviewed for abuse of discretion.

Under ER 802, “[hjearsay is not admissible except as provided by these rules, by other court rules, or by statute.” Public records and reports qualify as an exception to the hearsay rule “when duly certified by the respective officers having by law the custody thereof.” An unauthenticated printout obtained from the Internet does not meet the public records exception to the hearsay rule under RCW 5.44.040. Nor does it qualify as a self-authenticating document under ER 902(e). Appellant provides no authority to the contrary.

The trial court did not abuse its discretion in sustaining the State’s hearsay objection to the document. DEATH QUALIFICATION OF JURORS

(6) Whether the trial court erred in denying Appellant’s challenge to juror Number 6 and whether certain prospective jurors were properly excused for cause. Denial of Defense Challenges for Cause Appellant assigns error to the trial court’s denial of his challenge for cause against juror number 6. The State maintains the trial court properly exercised its discretion in denying the challenge. Under the Sixth Amendment to the United States Constitution and

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section 22 of the Washington Constitution, “a defendant is guaranteed the right to a fair and impartial jury.” A party may challenge a juror for cause under Criminal Rule (CrR) 6.4(c). Challenges are governed by statute under

chapter 4.44 RCW. Statutes relating to challenges for cause and challenges for bias are: [RCW] 4.44.160 General causes of challenge. General causes of challenge are:

(1) A want of any of the qualifications prescribed for a juror, as set out in RCW 2.36.070.

(2) Unsoundness of mind, or such defect in the faculties of the mind, or organs of the body, as renders him or her incapable of performing the duties of a juror in any action. [RCW] 4.44.170 Particular causes of challenge. Particular causes of challenge are of three kinds:

(1) For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias.

(2) For the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.

(3) For the existence of a defect in the functions or organs of the body which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the party challenging. [RCW] 4.44.180 Implied bias defined. A challenge for implied bias may be taken for any or all of the following causes, and not otherwise:

(1) Cosanguinity or affinity within the fourth degree to either party.

(2) Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant, to the adverse party; or being a member of the family of, or a partner in business with, or in the employment for wages, of the adverse party, or being surety or bail in the action called for trial, or otherwise, for the adverse party.

(3) Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action by the state against either party, upon substantially the same facts or transaction.

(4) Interest on the part of the juror in the event of the action, or the principal question involved therein, excepting always, the interest of the juror as a member or citizen of the county or municipal corporation. [RCW] 4.44.190 Challenge for actual bias. A challenge for actual bias may be taken for the cause mentioned in RCW 4.44.170(2).

But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially. The trial court’s dismissal of a prospective juror in a capital case will not be reversed on appeal absent a manifest abuse of discretion.

Prospective jurors may be dismissed for cause if their views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and oath. On review, deference is given to the trial court’s factual finding that a prospective juror’s state of mind with respect to the death penalty was such that they could not try the case fairly and impartially. This deference to trial judges acknowledges the importance of their observations of the jurors’ demeanor and the judge’s ability to interpret and evaluate the jurors’ answers to determine whether they would be impartial.

In this case, the trial court properly denied Appellant’s challenge for cause against juror number 6.

In In re Lord, this Court affirmed the trial court’s refusal to allow a challenge for cause to a juror who, like juror number 6 in this case, initially appeared confused about the jury’s penalty phase duties and the applicable law: Although [the juror’s] initial understanding of the procedures involved in a capital trial was confused, the record as a whole demonstrated that his “views [on capital punishment] would [not] ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”[] In this case, juror number 6 stated that although he favored the death penalty, he was not predisposed to vote for it.

Only when defense counsel asked him three different versions of the same question did the juror indicate a predisposition to vote for the death penalty if no mitigating factors were presented. However, after the penalty phase procedure was explained to the juror, he reiterated that he would follow the law and hold the State to its burden of proof even if the Appellant offered no mitigating evidence. The trial court properly exercised its discretion in not excusing juror number 6. Dismissal of Jurors Appellant also argues the trial court erred in dismissing juror number 50 and juror number 38 for cause.

The State counters that these jurors were properly dismissed for cause. The process of death qualifying a jury in a capital case has consistently been upheld by the United States Supreme Court. Jurors may be excused for cause if their views would prevent or substantially impair the performance of their duties as jurors in accordance with the court’s instructions and the jurors’ oath. This Court has affirmed the trial court’s removal of such a juror where the juror’s religious convictions would not allow her to impose the death penalty.

In this case, the State challenged juror number 50 for cause and the trial court dismissed her because her responses to questions from both the prosecuting attorneys and defense counsel indicated her religious convictions would not allow her to impose the death penalty, and that, if life without parole were a sentencing option, she would vote for that option. In consideration of her stated religious views, the trial court properly exercised its discretion in excusing juror number 50 for cause.

Similarly, the trial court properly exercised its discretion in granting the State’s challenge for cause to juror number 38. Juror number 38 stated he would require “100% proof’ before he could impose the death penalty. Because proof beyond a reasonable doubt does not require 100 percent proof and, after repeated questioning by the court, the juror did not seem to grasp the difference between the two standards of proof, the court granted the State’s motion to excuse juror number 38 for cause. The trial court did not abuse its discretion. Conflict of Interest

(7) Whether the trial court erred in not inquiring into the potential conflict of interest arising out of possible prior representation of a “jailhouse informer” by defense counsel’s public defense office. Appellant argues the trial court erred in not inquiring into an alleged conflict of interest involving the Pierce County Department of Assigned Counsel (DAC), and its possible prior representation of the State’s witness, Shelby B.

Johnson, a “jailhouse informer.” He claims that once the trial court obtains information of a potential conflict of interest, the court is required to inquire into, the possible conflict to determine whether his rights to effective assistance of counsel under the Sixth Amendment to the United States Constitution and

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section 22 of the Washington Constitution were violated. The State contends the trial court had no duty to inquire about a potential conflict and, besides, Appellant has not demonstrated that there was an actual conflict of interest which adversely affected the performance of his lawyers. The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” The Sixth Amendment right to counsel is assured in state courts by the due process clause of the Fourteenth Amendment.

The constitutional right to counsel includes the right to assistance of counsel free from conflicts of interest. A trial court is not required to initiate an inquiry into a possible conflict of interest unless (1) the court knows of an actual conflict or (2) the court reasonably should know of a conflict. The mere possibility of a conflict of interest is not sufficient to “impugn a criminal conviction.” A defendant who does not raise an objection at trial must demonstrate “an actual conflict of interest adversely affected his lawyer’s performance” in order to obtain relief on appeal.

Trial courts may assume, absent special circumstances, that the representation of a criminal defendant by one or more lawyers entails no conflict of interest. This assumption is premised upon the necessity that trial courts rely upon the good faith and good judgment of defense counsel. In this case, the trial court was not advised there was a potential conflict of interest. The record concerning the alleged conflict of interest consists only of the following exchange: The State: Next motion, Your Honor, is ... a motion to exclude several convictions [of] Shelby Johnson. He is an adult.

Shelby Johnson ... is the witness who had ... a discussion with Cecil Davis in jail about reading the newspaper, and he has multiple felony and misdemeanor convictions that I’ve listed on page two of the State’s motion in limine. The Court: Wait a minute. What about the obstructing? Isn’t that the same circumstances that’s applicable there or are you seeking to have that? Appellant’s Counsel: Yes, Your Honor. And again, I’ve ordered the report, that is a more current conviction. When it became obvious that Mr.

Johnson was going to be a witness in this, all of our files in our office were sealed, so I again had to order the police reports and don’t have it yet and I don’t know.[] Appellant’s two lawyers never raised any concern about a possible conflict of interest. Nor did Appellant claim at any time during trial that his legal representation was tainted by conflict of interest. The trial court properly relied upon the judgment of Appellant’s own lawyers and had no reason to believe there was a conflict of interest. Appellant’s reliance on Holloway v.

Arkansas and In re Personal Restraint Petition of Richardson is misplaced. In this case, the trial court did not commit reversible error by not further inquiring of defense counsel concerning an unidentified possible conflict of interest. Appellant correctly concludes that the United States Supreme Court in Holloway v. Arkansas held that a trial court has an obligation to inquire about a potential conflict of interest “in the face of the representations made by counsel.” However, Holloway is distinguishable from this case.

That case involved one lawyer representing three defendants at the same trial, each of whom desired to testify at the trial. In that case defense counsel advised the trial court that effective representation was impossible because of the diverging interests of each codefendant, but the court refused to consider appointment of separate counsel. Defense counsel in Holloway was prevented from cross-examining any of the codefendants. The Supreme Court clarified Holloway in Cuyler v.

Sullivan, holding that state trial courts may “assume” that defense counsel has no conflict of interest, and that the state trial courts have no duty to inquire unless the court “reasonably should know that a particular conflict exists.” In re Richardson is also distinguishable. In that case, defense counsel represented both the defendant and a witness whom the defendant called to establish a claim of self-defense. When the witness started to testify to self-incriminating information, the conflict of interest was brought to the trial court’s attention.

The trial court was informed by the witness that he and the defendant shared the same lawyer and the court realized the danger of potential conflict. Instead of allowing the witness to consult a different lawyer, or allowing the defendant to obtain a new lawyer, d

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