The State of Washington, Respondent, v. Allen Eugene Gregory, Appellant, 158 Wash. 2d 759

¶[1 Bridge, J. This case involves two consolidated appeals brought by Allen Eugene Gregory. In 2000, Gregory was convicted of three counts of first degree rape for the 1998 rape of R.S. (rape case). In 2001, Gregory was convicted of the 1996 aggravated first degree murder of G.H., committed in the course of a rape and robbery (murder case). The jury in the murder case determined that there were not sufficient mitigating circumstances to merit leniency, and Gregory was sentenced to death.

Gregory now appeals the convictions and sentences in both cases. ¶2 For reasons set forth below, we reverse the rape convictions, holding that the trial court abused its discretion when it declined to review in camera the dependency files of the victim’s child for evidence relevant to Gregory’s consent defense. Those files reveal information that we have determined would have been material to Gregory’s defense, and nondisclosure was not harmless beyond a reasonable doubt. We find no other trial court error in the rape case.

We further conclude that none of Gregory’s arguments warrant reversal of the aggravated first degree murder conviction, and we affirm that conviction. However, we find that the prosecutor engaged in misconduct during closing arguments in the penalty phase of the murder trial. Because the rape convictions were relied upon in the penalty phase of the murder case and because we find that prosecutorial misconduct occurred in the penalty phase, we reverse the death sentence, and we remand to the trial court for resentencing in the murder case. I. Rape of R.S. A.

Rape Case Statement of Facts and Procedural History ¶3 In 2000, Gregory was convicted of three counts of first degree rape for the 1998 rape of R.S. R.S. testified that at about 1:30 am on August 21,1998, as she was walking home, she noticed a car that she thought belonged to a friend. She approached the car. The occupant, whom she later identified as Gregory, rolled down the window. When she discovered the driver was not her friend after all, R.S. explained, “ T thought you were somebody I knew.’ ” RRP at 2047.

Gregory asked R.S. if she needed a ride home and after some hesitation, she accepted. ¶4 Instead of taking R.S. home, Gregory took her to a parking lot behind a nearby middle school. R.S. testified that he pulled out a knife and insisted that R.S. “give him what he wanted.” RRP at 2052. She tried to escape, but Gregory held her by the hair and held the knife to her side. R.S. testified that Gregory forced her to perform oral sex at knife point. He then put on a condom and vaginally raped her, holding the knife to her nose and threatening to cut it off. Afterward, R.S. noticed that the condom had broken.

R.S. testified that she screamed and tried again to get out of the car, but Gregory punched her. Gregory then repeatedly forced her to have anal intercourse. Afterward, he opened the door and pushed her out of the car. ¶5 As Gregory pulled away, R.S. testified that she memorized his license plate number. She then ran to a convenience store for help. The police were called, and R.S. was taken to the hospital. She reported that Gregory had told her that his name was Allen. She also described the car and gave the police the license plate number.

She explained that as the rapes occurred, she tried to memorize details about the interior of the car, which had several distinctive features. R.S. did not get a good look at her assailant’s face because she was turned away from him during most of the assault. ¶6 The hospital staff photographed R.S.’s injuries, including scratches and bruises to her arm, legs, and back, as well as bruises and welts on her head and face. They also took swabs from R.S.’s skin, vagina, anus, and mouth.

Semen was collected from the vaginal swabs and a deoxyribonucleic acid (DNA) profile of the assailant was generated from that semen. ¶7 Detectives identified Gregory as the owner of the car whose license plate R.S. had memorized. Officers located the car and looked in from the outside to confirm the specific characteristics described by R.S. After doing so, they arrested Gregory. ¶8 Shortly after his arrest, Gregory denied ever having had any contact with R.S., claiming he had an alibi. Police obtained a warrant and searched Gregory’s car, where they found a “Buck” knife and a condom.

The condom had the same lot number and expiration date as a condom wrapper found in the parking lot where the incident occurred. The Washington State Patrol Crime Laboratory (WSPCL) also compared the rape kit seminal fluid with a sample of Gregory’s blood and concluded that there was a DNA match. The chance of a random match in the African American population was 1 in 360 million. ¶9 Before trial, Gregory changed his defense to one of consent, asserting that he had indeed had sex with R.S. but the encounter was consensual.

In aid of his new defense, he sought to introduce evidence of R.S.’s prior convictions for prostitution. However, the trial court concluded that her prior convictions for prostitution were too remote in time to be relevant and excluded them. Gregory then asked the trial court to conduct an in camera review of the Child Protective Services dependency files of R.S.’s children to determine whether the files contained any evidence of recent (and therefore relevant) evidence of prostitution.

The trial court denied this request. ¶10 At trial, Gregory testified that R.S. had approached his car and offered to have sex with him for money. He testified that she willingly accompanied him to the middle school parking lot and that they engaged in consensual sex. He explained that R.S. became upset and demanded more money when she discovered that the condom had broken. When he refused, she became irate, and he told her to get out of the car. Gregory was never asked to provide, nor did he offer, any explanation for R.S.’s injuries.

The defense theory was that she accused Gregory of rape in retaliation. ¶11 The jury found Gregory guilty of three counts of rape in the first degree. At sentencing, the trial judge concluded that counts one (forced oral intercourse) and two (forced vaginal intercourse) were the same criminal conduct, but count three (forced anal intercourse) constituted separate criminal conduct. The sentences for counts one and two would be served concurrently, but the sentence for count three would be served consecutively. Gregory was also sentenced for a deadly weapon enhancement for each count.

His sentence amounted to 331 months (27 1/2 years) of total confinement. Gregory appealed both the rape convictions and his sentence. ¶12 After oral argument in this case, a majority of the court concluded that the trial court had erred by refusing to conduct in camera review of R.S.’s children’s dependency court files. We issued an order remanding to the superior court for in camera review of the relevant dependency files that were pending at the time of the rape trial.

The superior court entered findings of fact and conclusions of law finding that the dependency files of one child contained information relevant to the case. This court requested additional briefing from the parties as to whether the information revealed by the in camera review required reversal of the rape convictions. Such briefing has since been submitted to this court. B. Rape Case Analysis 1.

Evidence Excluded Pursuant to Washington’s Rape Shield Statute ¶13 Gregory’s theory of the case was that R.S. consented to oral and vaginal sex with him in exchange for money but she demanded more money when she discovered that the condom had broken. When he refused, they argued and he kicked her out of his car; then, she fabricated the rape story to retaliate. Gregory asserts that he should have been allowed to present evidence of R.S.’s prior prostitution activities to support this theory.

Washington’s rape shield statute provides, in part: Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this

section .... RCW 9A.44.020(2) (emphasis added). Subsection (3) provides that evidence of the victim’s past sexual behavior (as described above) is admissible on the issue of consent only if specific procedural requirements are met. RCW 9A.44-.020(3). The statute requires a written offer of proof that a victim’s prior sexual history is relevant to the issue of consent. Then, if the trial judge finds the offer of proof to be sufficient, the court must order a hearing outside of the presence of the jury. RCW 9A.44.020(3)(a).

At the conclusion of the hearing, if the court finds that evidence offered is relevant to the issue of the victim’s consent, that its probative value is not substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice, and that its exclusion would result in denial of substantial justice to the defendant, the court is required to enter an order stating what evidence may be introduced by the defendant. RCW 9A.44.020(3)(d).

This court has read RCW 9A.44.020 to mean that “credibility is ruled out altogether as the basis for introducing past sexual conduct and consent is made a suspect justification for the introduction of such evidence.” State v. Hudlow, 99 Wn.2d 1, 8, 659 P.2d 514 (1983). Even so, if the State opens the door in its case in chief by presenting evidence tending to prove the nature of the victim’s past sexual behavior, then the defense may cross-examine the victim on the subject. RCW 9A.44.020(4). ¶14 In this case, R.S. had prior convictions for sexual misconduct in 1992 and prostitution in 1995.

Gregory presented evidence of these convictions to the trial judge in an offer of proof pursuant to RCW 9A.44.020(3). The trial judge determined that Gregory did not meet the threshold relevance requirement necessary to justify a full hearing on admissibility of the evidence. The trial court ruled that the 1992 and 1995 convictions were too remote in time from the 1998 incident to be relevant.

Even though the defense offered a declaration from David Moon, a friend of R.S.’s, that R.S. admitted that she was engaging in prostitution in 1998, the evidence offered was based at least in part on hearsay, and the trial court did not find Moon’s testimony to be credible. Therefore, there was insufficient evidence to warrant a hearing under the rape shield statute. ¶15 The trial court did allow the defense to interview R.S. again and inquire into whether she had engaged in prostitution activity on the streets of Tacoma between 1995 and 1998.

In that interview, R.S. admitted to working as a prostitute through an escort service in 1996 and early 1997 but denied any prostitution activity in 1998. She denied any streetwalking activity after 1995. After the interview, the trial court again refused to admit any evidence of R.S.’s prostitution activity because it was too remote in time and the factual circumstances were not similar enough to this incident to make the history relevant. However, Gregory was permitted to argue that R.S. was acting as a prostitute on the night of her encounter with Gregory. ¶16 Evidence of Prior Acts of Prostitution Generally.

Gregory first argues that the trial court erred in excluding evidence of R.S.’s prior acts of prostitution because he claims that prior prostitution activities are not governed by the rape shield statute at all. In a related argument, Gregory contends that even if the rape shield statute applies to prior acts of prostitution, it should be interpreted to always allow admission of those acts. One purpose of the rape shield statute is to promote the reporting and prosecution of rapes. Hudlow, 99 Wn.2d at 16.

According to Gregory, this purpose is not undermined by the revelation at trial of prior prostitution convictions because such convictions are already a matter of public record. Therefore, there is little risk that the victim will be unduly harassed or embarrassed by the introduction of such evidence. ¶17 However, Gregory acknowledges but then ignores a related purpose that is evident from the plain language of RCW 9A.44.020(3)(d) — to eliminate prejudicial evidence that has little, if any, relevance to the issues of credibility or consent.

The statute clearly contemplates that where there is a substantial danger of undue prejudice to the truth finding process, such evidence will be excluded. Hudlow, 99 Wn.2d at 16. Such prejudice might occur if the victim’s past sexual conduct “confuse [s] the issues, mislead[s] the jury, or cause[s] [it] to decide the case on an improper or emotional basis.” Id. at 14.

Because the introduction of prior acts of prostitution could create substantial prejudice to the truth finding process, we decline the defendant’s invitation to make a sweeping ruling that the rape shield statute does not apply to prior acts of prostitution. ¶18 Gregory next points to other state courts that have allowed evidence of prior prostitution under rape shield laws. However, many of these cases reflect a case by case evaluation of the trial court’s exercise of its discretion, rather than a sweeping rule. See, e.g., State ex rel. Pope v.

Superior Court, 113 Ariz. 22, 545 P.2d 946, 953 (1976) (contemplating an exception to the rape shield law for prior prostitution activities but allowing admission only after a hearing shows the evidence is credible and not too remote); State v. Williams, 21 Ohio St. 3d 33, 487 N.E.2d 560, 562-63 (1986) (allowing evidence of the victim’s prior acts of prostitution to rebut the victim’s testimony on direct examination that she never consents to sex with men).

Other courts have properly rejected this sweeping argument, noting that a woman who has worked as a prostitute is able to refuse consent to have sexual intercourse. See, e.g., Brewer v. United States, 559 A.2d 317, 321 (D.C. 1989) (“In short, it cannot be assumed that prostitutes will accept every opportunity that comes along to engage in sexual relations. The fact that a woman is a prostitute . . . has nothing to do with whether she consented to sexual intercourse with a particular defendant.”).

We also decline the defendant’s invitation to conclude that prior prostitution activity is always admissible under the rape shield statute. Trial courts must evaluate the admissibility of prior acts of prostitution on a case by case basis under RCW 9A.44.020. ¶19 Application of the Rape Shield Statute in This Case.

Gregory argues that even if the rape shield statute applies, and even if prior acts of prostitution may be excluded under the statute in some cases, the trial court erred by excluding evidence of R.S.’s prior prostitution in this case. ¶20 The admissibility of evidence of past sexual conduct is within the sound discretion of the trial court. Hudlow, 99 Wn.2d at 17-18. As set forth earlier, according to the procedure adopted in RCW 9A.44.020(3), the defendant must provide a written offer of proof to establish the relevance of the prior sexual conduct.

If the defendant’s offer of proof does not establish relevance, then the trial court is not obligated to set a hearing to determine whether the other two prongs of the rape shield test are met. Id. at 18.

In this case, the trial court concluded that the defendant’s offer of proof was not sufficient to establish relevance, so the trial court did not proceed to a hearing on the issue. ¶21 This court has concluded that the rape shield relevancy inquiry must be whether, under ER 401, “the [victim’s] consent to sexual activity in the past, without more, makes it more probable or less probable that [he or] she consented to sexual activity on this occasion.” Hudlow, 99 Wn.2d at 10. “Factual similarities between prior consensual sex acts and the questioned sex acts claimed by the defendant to be consensual would cause the evidence to meet the minimal relevancy test of ER 401.” Id. at 11.

However, the factual similarities must be particularized, not general. Id. “For instance, if a [victim] frequently engages in sexual intercourse with men shortly after meeting them in bars, this would have some relevancy if the defendant claims she consented to sexual intercourse with him under similar circumstances.” Id. Similarly, in State v. Morley, 46 Wn.

App. 156, 730 P.2d 687 (1986), the Court of Appeals did not take issue with the trial court’s ruling allowing a witness to testify that, shortly before the incident with the defendant, the victim had offered the witness sex in exchange for $40 in circumstances very similar to the defendant’s version of events. Id. at 159-60. ¶22 In the instant case, the trial court concluded that R.S.’s prior convictions for prostitution and sexual misconduct were too remote in time and too different in character to be relevant and nothing suggested that R.S. was prostituting herself in 1998.

In her interview with defense counsel, R.S. admitted to having worked for an escort service in 1996 and early 1997, but such activity is not factually similar to Gregory’s account of the incident in question. R.S. denied streetwalking after 1995, but R.S.’s encounter with Gregory did not occur until late August 1998. The Court of Appeals has recognized that in the context of determining the relevance of a victim’s prior sexual conduct, questions of remoteness are matters within the sound discretion of the trial court. State v. Kalamarski, 27 Wn. App. 787, 790, 620 P.2d 1017 (1980).

The trial court did not abuse its discretion in excluding R.S.’s prior convictions where at least two years separate the defendant’s prior streetwalking conduct and the incident in question. ¶23 Because all three prongs of the statutory test must be met to justify admission of such evidence and Gregory has failed to show that the trial court abused its discretion with regard to its ruling on relevance, we need not evaluate whether the second and third prongs of the statutory test are met. See RCW 9A.44.020(3). ¶24 Opened Door.

Gregory also asserts that he should have been allowed to cross-examine R.S. regarding her prior prostitution because the State opened the door to admission of that evidence. RCW 9A.44.020(4) provides: Nothing in this

section shall be construed to prohibit cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim’s past sexual behavior, but the court may require a hearing pursuant to subsection (3) of this

section concerning such evidence. In State v. Camara, 113 Wn.2d 631, 642-43, 781 P.2d 483 (1989), this court discussed this subsection of the rape shield statute: To hold that evidence which in any manner concerns a rape victim’s past sexual behavior affords an opportunity for cross examination about the victim’s sexual past would weaken the statutory shield protecting victims from disclosures of their prior sexual conduct. We do not conceive RCW 9A.44.020(4) to be so broad.

Rather, we believe it permits cross examination on a victim’s sexual past only when the State’s evidence casts the victim’s sexual history in a light favorable to the State’s case. Id. at 643. First we note that any claim that the State opened the door during its cross-examination of Gregory necessarily fails because it does not constitute evidence presented during the State’s case in chief, as required by the plain language of the statute. RCW 9A.44.020(4). ¶25 In addition, Gregory was properly allowed to argue that R.S. consented to have sex with him on the night in question in exchange for money.

Therefore, there was necessarily discussion at trial about whether R.S. was acting as a prostitute on that night. However, this discussion can be distinguished from one of prior acts of prostitution. To open the door to R.S.’s sexual history, the State would have had to present that history in a favorable light. Camara, 113 Wn.2d at 643.

Merely arguing that she was not a prostitute on August 21, 1998 would not open the door to discussion of her sexual history. f26 Gregory contends R.S.’s testimony on direct that she was currently in counseling at a sexual assault center cast her sexual history in a favorable light. R.S. revealed that she was in counseling in response to the State’s general inquiry into the list of people with whom she had discussed the rape.

To justify the admission of the statement, the State argued, outside of the presence of the jury, that “[i]t’s highly unlikely that a prostitute who is angry about a $20 prostitution deal gone awry will pay out of her own pocket to go to counseling for two years.” RRP at 2080. However, the State’s argument logically rebuts the consent defense — a consensual sexual encounter would not lead someone to seek sexual assault counseling.

R.S.’s testimony does not speak to her sexual history, instead, the State merely sought to contradict Gregory’s version of the events on the night in question. ¶27 Similarly, the State questioned R.S. about how the incident had affected her. Gregory claims that this evidence was presented to show that R.S. did not react as a prostitute would have reacted to this incident. However, the more logical conclusion is that R.S. did not react as someone who consented to a sexual encounter would act.

The State’s argument does not seem to implicate prostitution activities at all. ¶28 Finally, Gregory claims that the State opened the door during its closing argument when it belittled Gregory’s theory that R.S. was working as a prostitute on the night in question. RRP at 2923-24 (“He has got to make [R.S.] look like a prostitute, got to make her look bad.”); RRP at 2967 (“Allen Gregory wants you to believe that [R.S.] is a prostitute. . . . He wants you to believe that she is a prostitute who somehow got it into her head that she was angry and wanted to report this rape.”).

But again, these arguments refer only to the events of August 21, 1998; they do not refer to R.S.’s sexual history. We conclude that in its case in chief, the State did not open the door to evidence of R.S.’s sexual history. ¶29 Admission of Prior Sexual Conduct To Prove a Motive To Lie. Gregory argues the trial court should have allowed him to cross-examine R.S. about her prior acts of prostitution because doing so would allow him to establish that she had a motive to falsely accuse him of rape.

According to Gregory, the trial court’s refusal to admit evidence of R.S.’s prior sexual conduct violated his state and federal confrontation rights because he could not explore R.S.’s bias. The rape shield statute does not allow evidence of prior sexual conduct to be admitted on the issue of a victim’s credibility under any circumstances. Hudlow, 99 Wn.2d at 8. Gregory acknowledges that “[o]n its face the statute strictly prohibits evidence of [R.S.’s] past sexual behavior for any issue other than consent.” Appellant’s Opening Br. at 61.

However, Gregory argues that it is unconstitutional to apply the statute in this way, despite its plain language, if it prevents him from exposing through cross-examination R.S.’s bias or motive to lie. ¶30 Even if we assume for the sake of argument that Gregory is correct on this point, the defense’s offer of proof established only remote prostitution activities. The trial court concluded that R.S.’s prior acts of prostitution were too remote to be relevant, a determination that was, as discussed above, well within the discretion of the trial court.

If R.S.’s prior prostitution activities were too remote to be relevant to the issue of consent, then certainly they were too remote to be relevant to whether she lied to get revenge for lack of payment. ¶31 Gregory cites to Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) and Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) to support his theory. While those cases found that the defendants should have been able to cross-examine witnesses on issues pertaining to potential bias, both courts were clear that the evidence in question was relevant.

Davis, 415 U.S. at 314; Olden, 488 U.S. at 232. Gregory has no constitutional right to present irrelevant evidence. Hudlow, 99 Wn.2d at 15. ¶32 Gregory also cites to cases from other states to support his argument. In one case, the court speculated that evidence of prostitution would have supported the defendant’s argument that the rape story was fabricated in retaliation for failure to pay for sex. Yet this statement was dicta, and the prostitution was not remote. Commonwealth v. Davis, 438 Pa. Super. 425, 652 A.2d 885, 889 n.3, 890 (1995).

In other cases, the evidence in question would have been relevant, where here it was not. See Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181, 183-84 (1981) (police interrupted the encounter between the victim and the defendant, and she had recently been charged for prostitution under similar circumstances); see also Lewis v. State, 591 So. 2d 922, 923, 925 (Fla. 1991); State v. Jalo, 27 Or. App. 845, 557 P.2d 1359, 1360, 1361-62 (1976) (sexual history of young victims was relevant because making a false accusation would have kept the youth from getting in trouble for consensual sexual activity).

In another case, the prior exchange of sex for drugs was relevant because it had occurred only one week before the incident in question. See Johnson v. State, 332 Md. 456, 632 A.2d 152, 153-54 (1993). None of these cases stands for the proposition that remote prostitution convictions should be admitted to show motive for the victim to fabricate a rape accusation. We conclude that R.S.’s remote acts of prostitution are not relevant to show a motive to lie, and we reiterate that a defendant has no constitutional right to present irrelevant evidence.

In sum, the trial court’s evidentiary rulings pursuant to the rape shield statute were proper. 2. In Camera Review of R.S.’s Dependency Files and Counseling Records ¶33 In Camera Review, Generally. The United States Supreme Court has held that for due process to justify in camera review of a record that is otherwise deemed privileged or confidential by statute, the defendant must establish “a basis for his claim that it contains material evidence.” Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).

There must be a “ ‘plausible showing’ ” that the information will be both material and favorable to the defense. Id. (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982)). Evidence is material only if there is a reasonable probability that it would impact the outcome of the trial. Id. at 57. A reasonable probability is probability sufficient to undermine confidence in the outcome. Id. The decision whether to conduct an in camera review of privileged records is subject to abuse of discretion review. State v.

Kalakosky, 121 Wn.2d 525, 550, 852 P.2d 1064 (1993). ¶34 In Ritchie, the defendant was prosecuted for sexually abusing his daughter. Ritchie, 480 U.S. at 43. He argued that his daughter’s Children and Youth Services (CYS) file might contain the names of favorable witnesses or other exculpatory evidence and, thus, the trial court erred in refusing to conduct an in camera review of the CYS file. Id. at 44.

Even though it was impossible to say whether any information in the CYS records would actually support Ritchie’s arguments, the Court held that the defendant was entitled to have the file reviewed by the trial court to determine whether it contained information that probably would have changed the outcome of Ritchie’s trial. Id. at 57-58. ¶35 In Kalakosky, this court evaluated whether the trial court should have conducted an in camera review of a sexual assault victim’s counseling file, which is subject to a qualified privilege by statute.

RCW 70.125.065 requires a written motion and affidavits setting forth specifically the reasons why the defendant is requesting discovery. The court concluded, based upon the statutory language, that “before a rape victim’s privacy should be invaded by a review of crisis center counseling notes [,] . . . the defendant must make a particularized showing that such records are likely to contain material relevant to the defense.” Kalakosky, 121 Wn.2d at 550 (emphasis added).

The Kalakosky court concluded that the motion in that case, which stated only that the counseling notes “ ‘may contain details which may exculpate the accused or otherwise be helpful to the defense,’ ” did not make the required particularized showing. Id. at 544, 550. ¶36 In sum, mere speculation is not enough to justify in camera review, and a defendant must establish a basis for his or her claim that the records in question contain material evidence. Ritchie, 480 U.S. at 58 n.15.

Based on the statutory language protecting rape crisis center records, a particularized showing is required to support review of those records. See RCW 70.125.065; Kalakosky, 121 Wn.2d at 550. ¶37 Counseling Records. On direct, when the prosecutor asked R.S. if she had discussed the rape with anyone else, she reported that she had discussed the incident in counseling at a rape crisis center. Gregory objected and outside of the presence of the jury, his counsel argued that the State should not be allowed to present evidence regarding counseling when the defense could not have access to the counseling records.

The trial court concluded that the State did not “[go] into the content of the counseling” but rather only mentioned “the fact that she has received counseling.” RRP at 2086. ¶38 The defense may not circumvent the statutory requirements for in camera review of a rape crisis center file. Kalakosky, 121 Wn.2d at 549. In this case, the defense did not submit a written pretrial motion supported by affidavits, as required by RCW 70.125.065(1). Gregory cites to no place in the record where defense counsel made a motion for in camera review of the counseling records at all.

We conclude that Gregory did not meet the statutory requirements for in camera review., ¶39 Dependency Files. The defendant requested that the trial court review in camera the dependency files of R.S.’s children. Gregory claimed that the files might contain evidence of recent prostitution activities that might be admissible under the rape shield statute. Defense counsel explained that R.S. had admitted that she had entered drug treatment in April 1999 because of a pending dependency action.

He asserted that because she had not “cleaned up her act” before April 1999, it was likely that the dependencies were open in 1998 when the rape occurred. He argued that if caseworkers were aware of any prostitution activity in 1998, the file would reflect that awareness. ¶40 The trial judge denied Gregory’s request, believing R.S. had been forthcoming in her interview when she stated that the dependency centered around her drug addiction and theft to support her drug habit. The trial court granted defense counsel’s request to interview R.S. again, this time asking questions about recent prostitution activity.

The trial judge believed that R.S.’s answers to these questions would directly provide the sought after information and, thus, in camera review of the files was unnecessary. The trial judge also cited the children’s privacy as a reason for denying in camera review. The defense countered that if R.S. denied recent prostitution, in camera review of the dependency files would ensure that they contained no evidence that would impeach R.S. on this point.

Even so, the trial judge declined to change her ruling. ¶41 RCW 13.50.010 and RCW 13.50.100 provide that dependency files shall be confidential and shall be released only under certain circumstances, none of which are being argued here. RCW 13.50.100(2). Therefore, in camera review of the dependency files would have been appropriate only if the Ritchie test was met. To justify in camera review, Gregory had to establish a basis for his claim that the dependency file would likely contain evidence of recent prostitution activities. ¶42 This case came down to a credibility contest between Gregory and R.S.

The State, in closing argument, repeatedly emphasized that the ultimate determination for the jury in this case was who was more credible, Gregory or R.S. Because Gregory’s version of events was that R.S. had consensual sex with him for money, admissible evidence of recent, factually similar prostitution would have been reasonably likely to impact the outcome of the trial. It is also reasonable to conclude that if the Department of Social and Health Services (DSHS) were aware of any recent prostitution activity, it would have been addressed in the dependency files.

Moreover, R.S.’s deposition testimony indicated that at least one dependency was likely active during 1998. Thus, in camera review of the dependency files might have led to witnesses that could confirm or refute R.S.’s claim that she did not engage in streetwalking after 1995. In camera review of the files would not have unnecessarily delayed the trial because the trial judge had already agreed to allow for a second interview of R.S. On balance, the invasion of the children’s privacy interests upon in camera review does not overcome Gregory’s interest in obtaining a fair trial.

We conclude that the trial judge should have reviewed the then-pending dependency files to determine if they contained information that could lead to admissible evidence that R.S. engaged in similar prostitution activity near to the time of this incident. We hold that the trial court’s failure to do so amounted to abuse of discretion. ¶43 The proper remedy for such an abuse of discretion is remand to the trial court for in camera review of the relevant files. Ritchie, 480 U.S. at 58.

If the information in the files would probably have changed the outcome of the trial, then the defendant is entitled to a new trial. But if nondisclosure was harmless beyond a reasonable doubt, then the convictions can be reinstated. Id.; see also State v. Allen, 27 Wn. App. 41, 49, 615 P.2d 526 (1980); State v. Harris, 91 Wn.2d 145, 152, 588 P.2d 720 (1978). The intent on remand is to place the parties in the position they were in pretrial. United States v. Alvarez, 358 F.3d 1194, 1209 (9th Cir. 2004).

Thus, after oral argument in this case, we remanded to the trial court for review of the dependency files of R.S.’s children that were pending at the time of the rape trial. The trial court conducted review and submitted to this court public findings of fact and conclusions of law, supplemental sealed findings of fact, and the sealed dependency files themselves. ¶44 The public findings of fact reveal that the dependency files contain R.S.’s criminal history, including reference to prostitution that occurred many years before the 1998 incident with Gregory.

But the dependency files “contain no information regarding prostitution activities as a reason for the dependency.” RCP at 927 (Finding of Fact (FOF) 6). Even so, the trial judge concluded that the dependency court’s social file contains information that might have been used to impeach some of the answers [R.S.] gave at the August 8, 2000, [pretrial] interview with Mr. Gregory’s attorney, but that information does not relate to prostitution or the consent issue raised by Mr. Gregory RCP at 927 (FOF 5).

The trial judge concluded: Without deciding whether such information would have been admissible, material, or whether its exclusion was harmless error, to the extent either the defendant or the State would have used the information as evidence, or whether it would have led to evidence, the undersigned finds that it was relevant to the above-entitled case. RCP at 927 (FOF 7) (emphasis added). ¶45 In his supplemental briefing, Gregory argues that various evidence revealed in the dependency files was relevant, admissible, and material, and that its nondisclosure was not harmless beyond a reasonable doubt.

Both the United States Supreme Court and this court have held that due process guarantees criminal defendants access to material information in the possession of the court or the prosecution, including material impeachment evidence. State v. Knutson, 121 Wn.2d 766, 771-72, 854 P.2d 617 (1993); see also Ritchie, 480 U.S. at 56-57; Alvarez, 358 F.3d at 1207-08 (“Evidence affecting the credibility of... witnesses is material. . . .”).

Evidence is material, for the purposes of this due process rule, if there is a “ ‘ “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” ’ ” or if the information “probably would have changed the outcome of [the] trial.” Knutson, 121 Wn.2d at 772 (quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 887, 828 P.2d 1086 (1992) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985))); Ritchie, 480 U.S. at 58.

A reasonable probability is “ ‘a probability sufficient to undermine confidence in the outcome.’ ” Knutson, 121 Wn.2d at 773 (quoting Rice, 118 Wn.2d at 887). To be material, there must be “more than a ‘mere possibility’ that evidence ‘might have affected the outcome of the trial.’ ” Id. (quoting State v.

Kwan Fai Mak, 105 Wn.2d 692, 704-05, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986)). ¶46 “Wrapped up in this standard of materiality are issues of admissibility; if evidence is neither admissible nor likely to lead to admissible evidence [,] it is unlikely that disclosure of the evidence could affect the outcome of a proceeding.” Id. To be admissible, and possibly material, evidence must also be relevant. Id. Evidence is relevant if it makes the existence of a fact of consequence to the case more likely or less likely to be true than without the evidence. ER 401.

Finally, the Ritchie Court held that despite a trial court’s erroneous refusal to conduct in camera review, a conviction could stand if “nondisclosure was harmless beyond a reasonable doubt.” Ritchie, 480 U.S. at 58. In considering the impact of nondisclosure, a court must consider whether the information was already known to the defense or whether reasonable diligence would have uncovered the information through alternative means. Cf. State v. Thomas, 150 Wn.2d 821, 851, 83 P.3d 970 (2004) (nondisclosure does not result in a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.

Ed. 2d 215 (1963) violation if the defendant could have obtained the information himself through reasonable diligence). ¶47 In this case, R.S. told defense counsel in an interview on August 8, 2000 that her last drug use was in April 1999. However, the dependency file reveals that R.S. had a serious relapse in June 2000 and had to go into drug treatment. In addition, while R.S. told defense counsel that she did not believe the dependency court had ordered her to get drug treatment, the court, in fact, had done so. ¶48 Evidence Rule 608(

b) provides that specific instances of a witness’s conduct, introduced for purposes of attacking the witness’s credibility, may not be proved by extrinsic evidence but may, “in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness.” In exercising its discretion, the trial court may consider whether the instance of the witness’s misconduct is relevant to the witness’s veracity on the stand and whether it is germane or relevant to the issues presented at trial. State v. O’Connor, 155 Wn.2d 335, 349, 119 P.3d 806 (2005).

While R.S.’s lie to defense counsel about her recent drug use was not a lie under oath because the August 8, 2000 interview was not a deposition, it was a very recent lie in response to questioning from defense counsel in the context of this case. R.S.’s lie was relevant to her veracity on the stand and it was relevant to this case. See O’Connor, 155 Wn.2d at 351. Thus, it is likely that the trial court would have allowed defense counsel to cross-examine her on the subject. Cf.

RRP at 2100-01 (allowing cross-examination of R.S. regarding instances of dishonesty with police that were more remote in time). ¶49 The State argues that because there were other avenues for impeaching R.S., the lie to defense counsel would not have been likely to change the outcome of the trial and nondisclosure was harmless.

On cross-examination, defense counsel asked R.S. about five convictions for theft in the third degree that had occurred over the course of the prior 10 years; about R.S. giving false names to police on several occasions throughout the 1990s; about R.S.’s use of alcohol, marijuana, and crack cocaine on the day of the rape; and about inconsistencies in her accounts to police. ¶50 These other avenues for impeachment call into question the materiality of R.S.’s lie to defense counsel.

However, the theft convictions and the instances of giving false names to police were not recent, while the August 2000 lie to defense counsel had occurred only weeks before. The lie occurred in the context of questioning regarding this case, and it undercut any argument that R.S. had reformed her old ways. Moreover, the State in closing argument repeatedly emphasized that the ultimate determination for the jury in this case was who was more credible, Gregory or R.S. RRP at 2906 (“Did [R.S.] tell you the truth, or did Allen Gregory tell you the truth?

That’s the determination that you are going to have to make.”); RRP at 2910 (“[Rt’s his word against [R.S.’s]. It’s 50-50. He has got a 50-50 chance you are going to believe him.”); RRP at 2913 (“It comes down to credibility. The question is, who are you going to believe, [R.S.] or Allen Gregory?”); see also RRP at 2967 (noting that R.S. admitted that getting in the car was stupid and arguing that if she were lying, she would have made up a better story).

While the State asserts that other avenues of impeachment render this additional information superfluous, at least one court has held that where credibility is a central question, if there is a reasonable probability that the cumulative effect of the undisclosed impeachment evidence, together with the disclosed impeachment evidence, “would have affected the jury’s assessment of the witness’s credibility,” then the exclusion should be considered prejudicial. See Benn v. Lambert, 283 F.3d 1040, 1056 (9th Cir. 2002).

Materiality of this impeachment evidence is a close question, but it seems impossible to conclude, beyond a reasonable doubt, that cross-examination illuminating R.S.’s recent lie would not have impacted the outcome of the trial. To the contrary, under the facts of this case, the additional impeachment evidence in the dependency files could have reasonably impacted the outcome of the trial, and nondisclosure was not harmless beyond a reasonable doubt.

We therefore reverse the rape convictions. ¶51 Of the evidence discussed in Gregory’s supplemental briefing, this was the only evidence that the trial court found to be relevant. Despite Gregory’s additional arguments, we also conclude that no other information revealed in the dependency files is material, and Gregory has failed to successfully challenge any other evidentiary ruling in this case. Gregory has raised several additional claims of error in the rape case. In the event of retrial, those issues could arise again and, thus, we proceed to address Gregory’s other claims of error. 3.

Jury Instruction on the Defense of Consent ¶52 In the rape case, Gregory pleaded not guilty and before trial he changed his defense from denial to consent; he admitted to having had sex with R.S. but claimed the encounter was consensual. The jury was instructed that to convict Gregory of any one of the three counts of first degree rape, it had to conclude that the sexual intercourse occurred as the result of “forcible compulsion.” RCP at 480-82. The jury was also instructed that “[t]he burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.” RCP at 483.

This instruction defined consent to mean “at the time of the act of sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse.” RCP at 483; see also RCW 9A.44.010(7). The defense requested an instruction that defined consent but did not impose a separate burden apart from the burden on the prosecution to prove each element beyond a reasonable doubt. ¶53 Any instruction on the burden of proof must comply with the requirement that the State must bear the burden to prove every element of the crime beyond a reasonable doubt.

Camara, 113 Wn.2d at 638 (citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)). Gregory now argues that requiring him to prove consent by a preponderance of the evidence violated due process because the jury could have become confused, thinking that it could acquit only if consent is proved by a preponderance of the evidence, even if a reasonable doubt may have been raised with regard to the element of forcible compulsion. See State v. Riker, 123 Wn.2d 351, 366-67, 869 P.2d 43 (1994) (describing a similar potential problem with regard to the defense of duress).

While Gregory admits that this court resolved this issue in Camara, 113 Wn.2d at 640, he contends that Camara should be overruled. ¶54 In holding that due process permits an instruction requiring the defendant to prove consent, the Camara court relied on Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987).

In Martin, the United States Supreme Court held that a defendant could be required to prove self-defense even where the evidence necessary to prove self-defense would often tend to negate an Ohio element of aggravated first degree murder, “purposeful killing by prior calculation and design.” Id. at 234. The Martin Court noted that there are two distinct questions that a jury must answer. The jury must determine whether each element of the crime has been proved beyond a reasonable doubt, and the jury must determine whether the elements of the defense have been met.

Even if a defendant could not prove self-defense by a preponderance of the evidence, the jury nevertheless could acquit if it believed there was reasonable doubt as to any fact necessary to support the elements of the crime. Id. Therefore, while evidence offered to support a defense may also tend to negate an element of the crime, that does not necessarily shift to the defendant the burden of disproving any element of the State’s case. See id. The Martin dissent doubted that a jury could reliably grasp this distinction, arguing that a jury would become confused and shift the burden to the defendant.

See id. at 237-38 (Powell, J., dissenting). However, the Martin majority refused to “harbor the dissent’s mistrust of the jury” and concluded that the instructions were sufficiently clear to convey that the State’s burden did not shift. Id. at 234 n.*. ¶55 After Martin, the Camara court expressed substantial doubt as to the continued viability of the so-called “negates” analysis (asking only whether a defense negates an element of the crime), and the court declined to apply the negates analysis to the consent defense. Camara, 113 Wn.2d at 639.

Following Martin, the Camara court held that “while there is a conceptual overlap between the consent defense to rape and the rape crime’s element of forcible compulsion, we cannot hold that for that reason alone the burden of proof on consent must rest with the State.” Id. at 640. The burden to prove consent properly lies with the defendant. Id. Even so, the instructions must reflect the State’s unalterable burden to prove each element of the crime beyond a reasonable doubt. Id. ¶56 Then, in Riker, this court noted that self-defense and alibi defenses could negate elements of a crime. 123 Wn.2d at 367-68.

The Riker court distinguished the defense of duress because it condones the defendant’s admittedly unlawful conduct. Id. at 368. Yet the Riker court included the consent defense to rape in its list of defenses that did not negate an element of the crime, and the Riker court did not question the Camara holding. Id. at 366-67. ¶57 Gregory concedes that the instructions read to the jury in his rape case provide a correct statement of current law but claims that the Camara court incorrectly analyzed the Martin decision. We disagree; the Martin analysis clearly supports the Camara court’s conclusion.

The jury in a first degree rape case must be convinced that none of the evidence presented raises a reasonable doubt that sexual intercourse occurred as the result of forcible compulsion. See Martin, 480 U.S. at 233.

Therefore, so long as the jury instructions allow the jury to consider all of the evidence, including evidence presented in the hopes of establishing consent, to determine whether a reasonable doubt exists as to the element of forcible compulsion, the conceptual overlap between the consent defense and the forcible compulsion element does not relieve the State of its burden to prove forcible compulsion beyond a reasonable doubt. We decline to overrule Camara and conclude that the jury instructions here complied with due process. 4.

Evidence Regarding R.S.’s Reputation in the Community ¶58 At trial, Gregory sought to present testimony from Eric Larson, R.S.’s ex-boyfriend and the father to one of her children. Larson sought to testify about R.S.’s poor reputation for truth and honesty within the community.

The trial court ruled that Larson’s testimony was inadmissible because R.S.’s family did not constitute a community that is both neutral and general, since the community consisted only of Larson and R.S.’s sister, and Larson’s understanding of R.S.’s reputation was too remote from the time of the trial. f 59 Evidence Rule 608 provides that the credibility of a witness may be attacked by evidence of the witness’s reputation for untruthfulness in the community. “To establish a valid community, the party seeking to admit the reputation evidence must show that the community is both neutral and general.” State v.

Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). Relevant factors include “the frequency of contact between members of the community, the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community.” Id. Whether a party has established proper foundation for reputation testimony is within the trial court’s discretion. Id. ¶60 The trial court found that R.S.’s family was neither neutral nor sufficiently generalized to constitute a community for the purposes of ER 608. We agree.

First, the inherent nature of familial relationships often precludes family members from providing an unbiased and reliable evaluation of one another. In addition, the “community” with which Larson had discussed R.S.’s reputation included only two people, Larson and R.S.’s sister. Any community comprised of two individuals is too small to constitute a community for purposes of ER 608. State v. Lord, 117 Wn.2d 829, 874, 822 P.2d 177 (1991) (community must be general). Finally, the trial court found that any awareness that Larson had of R.S.’s reputation for truthfulness was too remote in time to be relevant.

This court has previously held that information several months old is too remote. Id. at 874-75. A review of the record indicates that Larson was testifying based upon knowledge he obtained several years prior to the time of trial. Under the circumstances, the trial court properly ruled that Larson’s testimony was inadmissible as reputation evidence under ER 608(a). The trial court did not abuse its discretion. 5. R.S.’s Testimony about How She Felt about Testifying ¶[61 Upon examination of R.S., the prosecutor asked, “how do you feel about having to testify in court and ... be cross-examined?” RRP at 2153.

Defense counsel objected as to relevance, but the court overruled the objection. R.S. answered: You know, it’s like I had stated. I’ve tried for two years to put this behind me, you know. I want to get on with my life. It’s a horrific experience. I’m angry. I just want to get it over with. You know, it’s like for two years, I tried to forget about it. And since this trial started, I’ve had to remember it. I’ve had sleepless nights again. I’ve gone through nightmares again. And I’m just — I’m upset. I’m really upset. And I just would like to get on with my life and, you know, put this behind me, you know.

It’s just one of those things that— I don’t like having to recall all this stuff. I hate it. I hate having to remember it, you know. I hate having to go through all these feelings, you know, that I went through, you know. And it’s just — I just — I just — I just — I wouldn’t want my worst enemy to have to go through what I’ve gone— RRP at 2153-54. Defense counsel objected to the narrative form of the response, and the court directed the prosecutor to move on. In closing, the prosecutor read back to the jury R.S.’s answer to this question.

He then argued that R.S. would not have subjected herself to the trial process just to avenge a broken condom. The defense did not object. Gregory now argues that the prosecutor chilled the exercise of his federal and state constitutional rights to trial and to confrontation by asking how R.S. felt about cross-examination. In the alternative, Gregory argues that the question and the prosecutor’s argument in closing improperly appealed to the jury’s sympathy. ¶62 Comment on Constitutional Rights.

This court has recognized that “[t]he State can take no action which will unnecessarily ‘chill’ or penalize the assertion of a constitutional right and the State may not draw adverse inferences from the exercise of a constitutional right.” State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984). The Court of Appeals has specifically concluded that the State may not invite the jury to draw a negative inference from the defendant’s exercise of his right to cross-examine witnesses. State v. Jones, 71 Wn. App. 798, 811-12, 863 P.2d 85 (1993).

However, both the United States Supreme Court and Washington courts have recognized that not all arguments touching upon a defendant’s constitutional rights are impermissible comments on the exercise of those rights. See Portuondo v. Agard, 529 U.S. 61, 69, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000); State v. Miller, 110 Wn. App. 283, 284, 40 P.3d 692, review denied, 147 Wn.2d 1011 (2002). This court has characterized the relevant issue as “whether the prosecutor manifestly intended the remarks to be a comment on that right.” State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991).

These cases suggest that so long as the focus of the questioning or argument “is not upon the exercise of the constitutional right itself,” the inquiry or argument does not infringe upon a constitutional right. Miller, 110 Wn. App. at 284. ¶63 Gregory acknowledges that this case came down to a credibility contest between Gregory and R.S. Gregory claimed that R.S. fabricated the rape story and pursued prosecution in revenge for his failure to pay $20 to compensate R.S. for a broken condom.

The State sought to rebut this attack on R.S.’s credibility by showing that R.S. did not relish having to testify and be cross-examined. The State’s theory was that it was unlikely that R.S. would have put herself through a trial to avenge a broken condom. The State did not specifically criticize the defense’s cross-examination of R.S. or imply that Gregory should have spared her the unpleasantness of going through trial. ¶64 Gregory points to Jones, 71 Wn.

App. at 811, in which the Court of Appeals concluded that the defendant’s Sixth Amendment rights were violated when the prosecutor, in cross-examination and closing, commented that the defendant insisted upon staring at the seven-year-old victim as she testified. The prosecutor’s arguments also suggested that the victim’s courtroom contact with Jones was so traumatic that she could not return to court. Id. The Jones court held that this amounted to an improper comment on the defendant’s right to confront his accuser. Id. at 811-12.

While the State in Jones asserted that these arguments were offered to rebut Jones’ contention that he loved the victim, the Jones court concluded that the prosecutor’s argument invited the jury to draw a negative inference from the defendant’s exercise of his right of confrontation. Id. ¶65 The Jones case is distinguishable from the facts of this case because in Jones the prosecutor’s comments directly implicated Jones’ constitutional right of confrontation. In contrast, the questioning and argument in this case focused on the credibility of the victim versus Gregory. See Crane, 116 Wn.2d at 331; Miller, 110 Wn.

App. at 284. Gregory does not point to any case in which a general discussion of the emotional cost of victim testimony, offered to support the victim’s credibility, amounted to an improper comment on the defendant’s right to confrontation. ¶66 We conclude that the questioning and argument at issue here were not improper because they did not focus on Gregory’s exercise of his constitutional rights to trial and to confront witnesses. Instead they focused on the credibility of the victim as compared to the credibility of the accused.

To the extent that Gregory also argues that the prosecutor’s reference to R.S.’s testimony in closing argument amounted to prosecutorial misconduct, that argument also fails. ¶67 Appeal to the Jury’s Sympathy. In the alternative, Gregory asserts that the introduction of the above testimony improperly appealed to the jury’s sympathy. Mere appeals to the jury’s passion or prejudice are improper. State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988). In State v. Claflin, 38 Wn.

App. 847, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985), the Court of Appeals condemned an argument where the prosecutor read a poem that poignantly reflected how the rape victim “ ‘probably felt.’ ” Id. at 849-50. However, as discussed above, the State’s purpose in presenting this testimony was to rebut Gregory’s argument that R.S.’s version of events was not credible. In addition, the jury instruction explaining that the jury should not let sympathy guide its decision would arguably have cured any sympathetic tendencies the jury may have had in this regard.

Therefore, it cannot be said that the State improperly appealed to the jury’s sympathy. 6. Prosecutor’s Closing Argument ¶68 During closing argument at trial, the prosecutor argued that for Gregory’s defense to succeed, “[Gregory] has got to make [R.S.] look like a prostitute, got to make her look bad.” RRP at 2923. The prosecutor also argued that accusing R.S. of being a prostitute added “a little extra insult to injury.” RRP at 2923-24. Defense counsel objected to both statements and was overruled. Gregory argues that these statements were so improper they require reversal.

We disagree. ¶69 To establish prosecutorial misconduct during closing argument, the defendant bears the burden of demonstrating that the prosecutor’s remarks were improper and that they prejudiced the defense. Kwan Fai Mak, 105 Wn.2d at 726. Where, as here, defense counsel objected, this court must evaluate the trial court’s ruling for abuse of discretion. Id. ¶70 Gregory argues that the prosecutor’s closing arguments left the jury with the false impression that R.S. was never a prostitute. Gregory cites to Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 31 L.

Ed. 2d 104 (1972) for the proposition that reversal is required where deliberate deception of the court and jurors has occurred. However, that is clearly not what happened here. The prosecution in Giglio suppressed material evidence regarding a promise of leniency. Id. at 152, 154. Here, there was no suppression of relevant evidence. The prosecutors were very careful not to state that R.S. had never acted as a prostitute. The prosecutor sought to rebut defense counsel’s theory that R.S. was prostituting herself on the night in question and got angry over a fee dispute.

We conclude that the trial court did not abuse its discretion. ¶71 During closing argument, the prosecutor also stated that “[R.S.] has come in here to be 100 percent honest.” RRP at 2967. Defense counsel objected but was overruled. Gregory argues that reversal is required because this statement expressed the prosecutor’s personal opinion with regard to R.S.’s credibility. We disagree. Allegedly improper statements should be reviewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given. State v.

Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Just before and just after this comment, the prosecutor reviewed R.S.’s admissions about that night. R.S. “stupid[ly]” got into a car with a stranger. RRP at 2967. She also admitted to having smoked marijuana and crack cocaine earlier in the evening. In context, it is clear that the prosecutor was not personally vouching for the credibility of R.S. Rather, the prosecutor invited the jury to draw the inference that R.S. was willing to tell the truth, even if it made her look bad.

The prosecutor enjoys reasonable latitude in arguing inferences if om the evidence, including inferences as to witness credibility. State v. Johnson, 40 Wn. App. 371, 381, 699 P.2d 221 (1985). The trial court acted within its discretion in overruling the objection to this statement. f 72 We conclude that none of the prosecutor’s comments during closing argument in this case constituted prosecutorial misconduct.

Because the individual statements discussed above do not amount to prosecutorial misconduct, Gregory’s claim based on cumulative effect also fails. ¶73 Gregory also argues that the trial court imposed an improper sentence in the rape case. Because we reverse the rape convictions, we need not address this issue. C. Conclusion ¶74 Because the trial court erred when it declined to conduct an in camera review of the dependency files of R.S.’s children that were open at the time of trial, we reverse Gregory’s rape convictions.

The files contained material impeachment evidence, the nondisclosure of which cannot be said to have been harmless beyond a reasonable doubt. While Gregory makes several other claims, we find no additional error. II. Murder of G.H. A. Murder Case Facts and Procedural History ¶75 In 1996, two years before the R.S. rapes, 43-year-old G.H. moved into a house next door to her mother’s. On July, 27, 1996, when G.H. did not show up for work at the restaurant where she was employed as a bartender, her co-workers became concerned and sent someone to check on her.

A co-worker found the back door of G.H.’s residence unlocked. She let herself in, looked through the house, and found G.H.’s body facedown on her bed. ¶76 The evidence suggested that G.H. had been attacked in her kitchen. She was probably stabbed once in the neck and then dragged into her bedroom. G.H.’s work clothes had been cut off of her, and her hands were tied behind her back with apron strings. She was then stabbed three times in the back. In addition, she had three deep slicing wounds to the front of her throat. One of the throat wounds was inflicted so violently that a vertebra in G.H.’s neck was broken.

The medical examiner concluded that G.H. suffered blunt force trauma to the head and she had several bruises, but the cause of death was multiple sharp force injuries to her back and neck. Semen was found in G.H.’s anal and vaginal swabs, on her thigh, and on the bedspread. The evidence suggested that she was still alive when she was raped. Missing from her home were a pair of diamond earrings, jewelry, and her cash tips from that evening. ¶77 Gregory lived with his grandmother across an alley from G.H.’s home.

Police began to suspect him of complicity in the murder when he gave them inconsistent statements about his whereabouts at the time of the crime. However, the police could not definitively connect him to the crime until 1998. In 1998, DNA analysis of semen found at the G.H. crime scene was compared with blood samples obtained from Gregory in the R.S. rape case. The Washington State Patrol, the Federal Bureau of Investigation (FBI), and a private lab all reported that Gregory was, to a high degree of probability, the source of the semen found at the G.H. crime scene.

The various DNA tests compared differing alleles and thus produced varying odds of a random match. For example, the private lab, conducting short tandem repeat (STR) DNA testing, concluded that the chance of a random match in the African American population was 1 in 190 billion. The Washington State Patrol, conducting restriction fragment length polymorphism (RFLP) DNA testing, concluded that the chance of a random match was 1 in 235 million. ¶78 Gregory was already incarcerated awaiting trial in the R.S. rape case. He was questioned and then charged with aggravated murder in the first degree for the G.H. murder.

The aggravating circumstance was that he committed the murder in the course of rape in the first degree and robbery in the first degree. The State elected to seek the death penalty. After a lengthy trial, the jury found Gregory guilty of aggravated first degree murder. Evidence was then presented to the same jury at the penalty phase. The jury concluded that “[hjaving in mind the crime of which the defendant [was] found guilty,” it was convinced “beyond a reasonable doubt that there [were] not sufficient mitigating circumstances to merit leniency.” MCP at 2983. Accordingly, Gregory was sentenced to death.

Gregory appeals the aggravated first degree murder conviction and death sentence. Facts specific to particular issues will be discussed in more detail below. B. Murder Case Guilt Phase Analysis 1. Jury Selection — Juror 1 ¶79 Gregory argues that juror 1 was improperly dismissed for cause. The Sixth Amendment to the United States Constitution and

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section 22 of the Washington Constitution guarantee a defendant the right to an impartial jury. State v. Brown, 132 Wn.2d 529, 593, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). In order to protect a defendant’s right to a fair sentencing hearing, as well as the State’s ability to present its arguments to an impartial tribunal, the trial court in a death penalty case must “death qualify” the jury. Id.; see also Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L.

Ed. 2d 841 (1985). ¶80 Death qualification is the process whereby the trial court may dismiss prospective jurors for cause if the juror’s philosophical views against the death penalty would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Witt, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)); State v. Davis, 141 Wn.2d 798, 856-57, 10 P.3d 977 (2000). The juror’s bias need not be “ ‘unmistakably clear’ ” before dismissal is allowed.

Witt, 469 U.S. at 424-25 (rejecting the Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) test). Instead the trial judge can dismiss a juror when “left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” Witt, 469 U.S. at 425-26. Deference must be paid to the trial judge who sees and hears the juror. Id. at 426. ¶81 Under the Witt test, a juror may express scruples about capital punishment, or even personal opposition to the death penalty, so long as he or she can ultimately defer to the rule of law. Lockhart v.

McCree, 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). Whether a juror can set aside personal feelings about the death penalty involves a credibility determination that is necessarily factual in nature. Witt, 469 U.S. at 429. A trial court’s ruling on a challenge for cause is reviewed for manifest abuse of discretion. Brown, 132 Wn.2d at 601-02. ¶82 In this case, juror 1 indicated seven times that if the alternative was life with no chance of release, then she could not vote for the death penalty.

In contrast, she later testified that she thought she could follow the court’s instructions and impose the death penalty if the State proved death was warranted beyond a reasonable doubt. Significantly, she said that she could tell which answers counsel were looking for and she was not comfortable in disagreeing with the attorneys. She explained the inconsistencies in her answers by stating that she had had time to think about the issue. The State challenged juror 1 for cause, and the defense objected.

After argument, the trial court concluded: This juror repeated approximately three times according to my notes, when asked if she could vote for the death penalty if she knew a person could get life in prison without parole, she said “probably not” at least three times. I know that on her questionnaire and during some of her other answers, she stated that she could if it was a serial murder type of case. I believe it’s very clear from her answers that she probably is not capable of voting for the death penalty, knowing the alternative is life in prison. So I will grant the state’s challenge for cause.

MRP at 2224. ¶83 Given juror l’s initial answers to questions regarding the death penalty and the suggestion that she changed her answers to please the attorneys, it is not surprising that the trial judge had the definite impression that juror 1 could not “faithfully and impartially apply the law.” Witt, 469 U.S. at 426. “ [D]eference must be paid to the trial judge who sees and hears the juror.” Id. We find there is ample evidence in the record to support the dismissal for cause and hold that the trial court did not abuse its discretion. 2.

Closed Courtroom ¶84 Gregory argues that when the trial court required his aunt, Tonetta Johnson, to leave the courtroom for the duration of his grandmother’s testimony, the court closed the courtroom in violation of his right to a public trial under the Sixth Amendment and

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section 22 of the Washington Constitution. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005); In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004). At trial, the State called Mae Hudson, Gregory’s grandmother, to testify. The trial judge abruptly interrupted, excused the jury, and asked Hudson to step out of the courtroom. Then, the trial judge explained: Counsel, I have been observing that the woman seated behind [defense counsel] on the last question was shaking her head no to the witness before the witness was answering. MRP at 5051-52.

The judge ordered Johnson to step outside of the courtroom for the duration of Hudson’s testimony. The court further explained: I earlier had seen [Johnson] smiling and laughing at the witness, but it wasn’t until this last question about the facial hair that I saw her shaking her head no to Ms. Hudson. So I wanted the state and defense counsel to be apprised of that and why I need to exclude her from the courtroom. Is there any objection to that from the defense? MRP at 5052. Defense counsel had no objection. The court ordered: She needs to definitely stay outside for the rest of the testimony.

This could be as simple as prompting the witness, or it also could be tampering with the witness in this case. I am especially concerned because this witness may be having some memory problems in this regard. She will need to remain outside the rest of the time. MRP at 5053. After Hudson’s testimony, Johnson returned to the courtroom and apologized. ¶85 In Brightman, Orange, and State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), the trial court ordered that all spectators be excluded from the courtroom during some part of the trial.

See Brightman, 155 Wn.2d at 511; Orange, 152 Wn.2d at 802; Bone-Club, 128 Wn.2d at 256-57. The Orange and Bone-Club courts emphasized that the closures in those cases were full closures. Orange, 152 Wn.2d at 808; Bone-Club, 128 Wn.2d at 256-57. Here, the trial court never fully closed the courtroom. Further, neither Orange, Bright-man, nor Bone-Club explicitly limited or undermined the trial court’s inherent authority to regulate the conduct of a trial by excluding one person from the courtroom for a limited period of time. See, e.g., State v. Pacheco, 107 Wn.2d 59, 67-68, 726 P.2d 981 (1986).

The trial judge here explained the reason for excluding Johnson, she offered the defendant a chance to object, which he chose not to do, and she limited the exclusion to the duration of Hudson’s testimony. Under these circumstances, it cannot be said that the trial court abused its broad discretion to regulate the conduct of a trial. We conclude that Gregory’s right to a public trial was not violated. 3. Sufficiency of the Evidence To Prove Premeditation ¶86 Gregory argues that there was insufficient evidence in the record to support the element of premeditation.

Evidence is sufficient to support a finding of guilt if “viewed in the light most favorable to the state, a rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006, cert. denied, 534 U.S. 1000 (2001). “All reasonable inferences from the evidence must be drawn in favor of the state and interpreted most strongly against the defendant.” Id. ¶87 The legislature has declared that the premeditation necessary to support conviction for murder in the first degree must “involve more than a moment in point of time.” RCW 9A.32.020(1).

This court has defined premeditation as deliberate formation of and reflection upon the intent to take a human life [that] involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short. State v. Hoffman, 116 Wn.2d 51, 82-83, 804 P.2d 577 (1991). Premeditation may be proved by circumstantial evidence where inferences supporting premeditation are reasonable and the evidence is substantial.

Clark, 143 Wn.2d at 769. ¶88 This court has found that sufficient evidence supported the jury’s finding of premeditation in cases where multiple wounds were inflicted with a knife or other weapon, there were signs of a struggle, the victim was at some point struck from behind, and there was evidence that sexual assault or robbery was an underlying motive. Id. at 769-70; State v. Gentry, 125 Wn.2d 570, 599-601, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995); State v. Ortiz, 119 Wn.2d 294, 312-13 (plurality opinion), 315 (Dolliver, J., concurring), 831 P.2d 1060 (1992); State v.

Ollens, 107 Wn.2d 848, 853, 733 P.2d 984 (1987). In Clark, the seven-year-old victim was stabbed at least seven times in the neck, cuts on her hands suggested a struggle, and she was sexually assaulted. 143 Wn.2d at 739, 769-70. In Gentry, the defendant picked up a large rock to use as a weapon, he struggled with the victim over the course of 148 feet of a wooded trail, blows were struck on both sides of the victim’s head, and sexual assault was apparently attempted. 125 Wn.2d at 600-01.

In Ortiz, the victim was found in her home, defensive wounds indicated a prolonged struggle through more than one room, and the victim had been raped. 119 Wn.2d at 297, 312-13. In Ollens, the victim was stabbed several times with a knife and his throat was then slashed, the victim was struck from behind, and the evidence suggested that robbery was the motive. 107 Wn.2d at 849, 853. ¶89 The facts in the instant case similarly evince premeditation.

There was no sign of forced entry into G.H.’s house, G.H. was stabbed in the throat in her kitchen and then dragged to her bedroom, G.H.’s hands were tied behind her back, her clothes were cut off of her, and G.H. was stabbed three times in the back, her throat was slit three separate times, and a vertebra in her neck was fractured. Despite her severe injuries, G.H. struggled. G.H. was raped both vaginally and anally before she died. Moreover, none of G.H.’s tip money from that evening was found, and the diamond earrings that she always wore were never recovered.

Juxtaposing the facts of the instant case with those from the cases discussed above, it is evident that here there was equally substantial evidence from which the jury could have found premeditation. We conclude that there is sufficient evidence to support a finding of premeditation. 4. Right to Counsel during Questioning ¶90 On November 2,1998, Gregory was in police custody after arraignment on the R.S. rape charges. Tacoma police detectives transported Gregory from the Pierce County jail to an interview room in a Tacoma Police Department building.

The detectives read Gregory his Miranda rights, questioned Gregory about an unrelated and still uncharged shooting, and then questioned him about the G.H. murder. At the time, Gregory was represented by counsel on the R.S. rape charges, but police did not contact counsel nor invite him to the interview. At trial, one of the detectives testified that during the interview, Gregory refused to be audio-taped but stated that he thought DNA evidence was good evidence and became sullen after he was accused of raping and murdering G.H. Gregory also denied ever having sex with G.H. or being in her house.

Gregory now argues that the interrogation without his counsel present violated his constitutional rights. ¶91 In Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001), the United States Supreme Court held that the Sixth Amendment right to counsel is offense specific, attaching only to “charged offenses,” which the Court defined to include any offenses that would amount to the same offense under the Blockburger test. Id. at 172-73.

Gregory concedes that under this standard, police could interview him about the murder without violating the Sixth Amendment. ¶92 Employing a Gunwall analysis, Gregory asserts that this court should interpret

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section 22 of the Washington Constitution to provide greater protection than the Sixth Amendment. Specifically, Gregory urges this court to adopt a standard suggested by the Cobb dissenters, which is based upon the federal courts’ pre-Cobb test: “[o]nce a charged defendant has requested counsel, he may not be interrogated about related matters without counsel’s knowledge and consent.” Appellant’s Opening Br. at 101-02 (emphasis added).

The Cobb dissent would have defined “offense” for purposes of the Sixth Amendment right to counsel as “criminal acts that are ‘closely related to’ or ‘inextricably intertwined with’ the particular crime set forth in the charging instrument.” Cobb, 532 U.S. at 186 (Breyer, J., dissenting). Prior to Cobb, courts had held that “ ‘closely related’ ” offenses involved “the same victim, set of acts, evidence, or motivation.” Id. ¶93 Even if we were to adopt this “closely related” test as the Washington constitutional test, the R.S. rape and the G.H. rape/murder were not closely related.

They involved different victims, they occurred two years apart, and they occurred in different locations. Other than the fact that they both involved rapes, the factual circumstances were distinct. Although Gregory claims that the cases involved the same evidence, namely his DNA, he does not point to a single pre-Cobb case in which the mere fact that the defendant’s fingerprints or DNA were collected at both crime scenes rendered two crimes “closely related.” In fact, crimes that were deemed closely related, pre-Cobb, i

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