Opinion
No. 54997-9-I.
May 30, 2006.
Appeal from a judgment of the Superior Court for Skagit County, No. 03-1-00690-3, Susan K. Cook, J., entered August 31, 2004.
Counsel for Appellant(s), Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Office, 605 S 3rd St, Mount Vernon, WA 98273-3867.
Affirmed in part and remanded by unpublished opinion per Appelwick, C.J., concurred in by Agid and Cox, JJ.
Rayne Dee Wells, Jr., was convicted of two counts of second-degree assault and one count of first-degree robbery. He argues that the trial court violated his right to self-representation, failed to properly instruct the jury, and violated his protection against double jeopardy. Wells also argues that the trial court erred in allowing the State to amend the information after opening statements, allowing a witness to make a blanket assertion of the Fifth Amendment privilege, denying his right to compulsory process, and allowing testimony of a detective. Wells argues that the State intimidated a defense witness, coached a State witness, and committed other prosecutorial misconduct. Wells also argues that the jury was improperly allowed to see him in his jail attire. Finally, he urges that he is entitled to relief under the cumulative error doctrine. We agree that Wells' protection against double jeopardy was violated and we remand for resentencing. We affirm on all other grounds.
FACTS
Wells was charged with two counts of assault in the first degree and one count of robbery in the first degree for an incident alleged to have occurred on September 1, 2003. At the close of the State's case, the trial court dismissed both counts of assault in the first degree but allowed the lesser offenses of assault in the second degree to be submitted to the jury. The parties present contradictory versions of the facts related to the underlying incident. We present the State's version followed by Wells' version.
On September 1, 2003, Mathew Stein and his acquaintance Robert Shannon arranged to purchase marijuana. Stein testified that he called Josh Taylor and agreed to buy a quarter pound of marijuana for about $1100 and to meet at a Target store parking lot in Burlington. Stein owed Taylor money at the time, but they did not discuss the debt that morning. Stein testified that he and Shannon arrived at Target. Stein was not armed. Wells and another person, Jimmy Mitchell, arrived to meet them instead of Taylor. Wells did not want to complete the purchase in the Target parking lot because he knew of video surveillance there. Therefore, Stein and Shannon followed Wells to the parking lot of a retirement home.
Stein left his vehicle and walked to the trunk of Wells' car. Wells got out and started digging through his trunk. Stein thought Wells would pull out a bag of marijuana, but instead Wells pulled out a handgun. Wells tried to pull Stein toward him, and tried to point the gun at Stein's stomach. Wells said something like `you fucked with the wrong person.' Stein pushed off and ran away to avoid getting shot. As he was running away, Stein heard Wells tell him to stop running or Wells would shoot Shannon.
Shannon, Stein's passenger, testified that he asked Stein to obtain some marijuana for him, which Shannon needed to help his father's post-traumatic stress disorder. Shannon testified that when they went to get the marijuana he had $86 in his wallet, and $900 in his shoe. Shannon recounted that Stein said they were going to meet Taylor, but that instead they met with Wells at the Target parking lot. Shannon did not participate in Stein's conversation with Wells, but understood that Wells wanted them to go and meet at the retirement home instead. They followed Wells to the retirement home. Shannon testified that Stein got out of the car and went to talk to Wells. Shannon stayed in the car, but saw Wells and Stein talking at the trunk of Wells' car with the trunk open. All of a sudden Shannon saw Stein run off and Wells came up to Shannon and put a gun to Shannon's head. The gun touched Shannon's skin. Shannon was really afraid. Shannon testified that Wells told Stein that he would shoot his `partner' if Stein did not stop running.
Wells then told Shannon to hand over his wallet. Wells punched Shannon in the nose either before or after Shannon handed over the wallet. Wells became angry because there was only $86 in the wallet. He threw the wallet back at Shannon. Wells searched Shannon's pockets, then went back to his own car. Once there, he told Shannon to throw him the keys and cell phone. After Wells and his passenger left, Shannon got out of the car and found Stein, who was in the retirement home.
The police showed up shortly thereafter. Detectives Harrison and Twomey noticed that Stein and Shannon were shaken, upset, and excited. Wells, was later stopped on Interstate 5 and admitted to being present at the incident. Harrison found Stein's car keys in Wells' car.
Wells testified in his own defense and presented a different version of the facts. Wells testified that he sold marijuana for Taylor. Taylor had called and asked Wells to sell Stein a quarter pound of marijuana for about $850. Wells met Stein and Shannon at the Target parking lot, but would not do the transaction there because he used to work at Target and knew that they had good parking lot surveillance. He suggested they go elsewhere, and Stein and Shannon told him to follow them. Wells followed them to the retirement home parking lot.
Wells opened his trunk to get the marijuana. Stein came to meet him at his trunk, while Shannon stayed in the car. Wells noticed that Stein left his car running. Wells started to retrieve the marijuana from underneath his spare tire. While Wells was looking in the trunk, he glanced over his shoulder and saw Stein adjust his waistband. Wells was concerned because he knew Stein had something under his shirt. At that moment, however, Wells had not seen a weapon and Stein had not taken a swing toward Wells. Wells shut his trunk and turned. As he was turning, Stein hit him in the mouth. Wells fell into his car, and as he was turning from his car, Stein pulled a gun from his waistband. Wells hit Stein somewhere on his body, which caused Stein to drop the gun. Stein took off running.
Detective Harrison testified that when Wells was arrested, he had a swollen cut on his lower lip.
Wells picked up the gun and went to his car. He intended to leave and testified that he easily could have done so, but he did not leave because he was concerned that Stein's car was running. He told Shannon to throw out the car keys and the cell phone. Shannon threw out the cell phone but refused to throw out the car keys. Wells put the gun between the front seats of his car and got out to take Stein's keys. He ran over to the passenger side of Stein's car and punched Shannon in the face to get the keys. Shannon had not grabbed Wells, and Wells `didn't know what [Shannon] was going to do.' Wells testified that he was not scared of Shannon, but feared that he might do something at the time Wells went to get the keys. He considered it `just as likely' that Shannon had a gun, because Shannon and Stein were attempting to rob him.
Wells returned to his car and drove off with the keys and the wallet. He threw the gun out the car window while driving over the Burlington Bridge. He denied rifling through Shannon's wallet, taking any money, or pointing a gun at either Stein or Shannon. Wells testified that the entire incident was an attempt by Stein and Shannon to rob him.
The trial court instructed the jury on self-defense as to the assault of Stein, but not as to the robbery or assault of Shannon. The jury convicted Wells as charged. The court sentenced Wells to the top of the standard range for each of the offenses, to run concurrently. Wells timely appeals.
ANALYSIS I. Wells Did Not Make an Unequivocal Request to Represent Himself
Criminal defendants have a state and federal constitutional right to self-representation. U.S. Const. amend VI, XIV; Wash. Const. art. 1, sec. 22; Faretta v. California, 422 U.S. 806-07, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Woods, 143 Wn.2d 561, 585, 23 P.3d 1046 (2001); State v. Silva, 107 Wn. App. 605, 617-18, 27 P.3d 663 (2001). To exercise this right, the defendant must make a knowing and intelligent request that is timely and unequivocal. State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002).
The erroneous denial of a defendant's motion to proceed pro se requires reversal without any showing of prejudice. State v. Estabrook, 68 Wn. App. 309, 317, 842 P.2d 1001 (1993). The request to proceed pro se must be unequivocal in the context of the record as a whole. Woods, 143 Wn.2d at 586. The Washington Supreme Court has held that the trial court has no duty to inform the defendant of or to ask if he wishes to exercise his right to proceed pro se. State v. Garcia, 92 Wn.2d 647, 654, 600 P.2d 1010 (1979). Where the defendant's intention to waive is unclear, the presumption is that the defendant waived the right to self-representation, and not to counsel. See State v. Bebb, 108 Wn.2d 515, 526, 740 P.2d 829 (1987).
On appeal, a trial court's grant or denial of a motion for continuance will not be disturbed absent a showing of manifest abuse of discretion. State v. Miles, 77 Wn.2d 593, 597-98, 464 P.2d 723 (1970). It is not a manifest abuse of discretion for a court to grant a continuance under CrR 3.3(h)(2) to allow defense counsel more time to prepare for trial, even over the defendant's objection, to ensure effective representation and a fair trial. State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984).
Wells' trial date was originally set for Monday, August 2, 2004, but then reset for Monday, August 9, 2004. Wells' pro se request came in the context of a CrR 3.5 hearing on Friday, August 6, 2004. Wells testified at the hearing that he had exercised his right to counsel after being read his constitutional rights at the scene of his arrest. The prosecutor sought a recess on the CrR 3.5 hearing on the ground that the State had no knowledge of Wells' claim that he had invoked his right to counsel. The court sought to reset the CrR 3.5 hearing for the following week, but that caused a conflict with defense counsel Glen Hoff's schedule. Hoff was leaving for vacation on Wednesday, August 11, and returning on Sunday, August 15. The court, both counsel, and Wells discussed the matter of rescheduling trial. Wells addressed the court on July 29, 2004, and stated:
I expressed thru [Hoff] to the court that I wanted to proceed with trial on August 2nd. The prosecution requested a week to prepare. It was allowed and trial was set for August 9th, Monday, which is also my speedy trial expiration date. I know they can change that. Wednesday I spoke with [Hoff] and he asked me that he had prepaid airline tickets or whatever, he didn't think it would be done. I want to go to trial on Monday, and if that means he needs to leave and I need to finish it up pro se with the assistance of another lawyer from assigned counsel, I'm willing to do that. You guys gave the prosecutor a week to get ready for trial, that's fair, I'm entitled to a fair and speedy trial. How fair is it to allow the prosecutor a week to prepare for trial extra and not allow me to go forward with the trial. I want to go forward.
(emphasis added). Hoff expressed his concern with having incomplete representation:
I know a lot can unravel when somebody takes over on a case. It would be strongly against my advice to proceed pro se half way through a trial or much less at any time especially a trial that Mr. Wells knows he is looking at a lot of time if he is convicted. They are serious felony charges. It is strongly against my religion. I really do not think we have a snowball's chance.
Wells urged: `Is it not my right?'
Hoff asked for a continuance. The court asked whether Hoff would be ready to proceed on August 16, and Hoff said that he would not be ready because he did not want `to step off the airplane and do a trial the following morning.' He recommended that the trial be set over until August 23. Wells remained dissatisfied and stated his strong wish to proceed to trial on time:
My standard range is 326 months on one count of Assault I. You honestly think I'd be going to trial, taking a gamble with that. I'm not gambling here. I'm playing with facts. I want to strike while the iron is hot. Whatever the saying is. I'm smart enough to go to trial with the help of Mr. Hoff until he leaves for vacation and then handle the rest with another member of the public defender's office.
Wells stressed his concern with delaying the trial: `More time for my lawyer is the same thing as more time for the prosecutor in my eyes.' The trial court set the trial for August 23 or 24. The trial court ruled that it would be in Wells' best interest to grant the continuance, that `unavailability is unavailability,' and that he was protecting Wells against himself.
Wells argues that his statements comprised an unequivocal request to proceed pro se and the trial court was required to engage in a colloquy with him to clarify whether he understood the risks and difficulties of self-representation. Woods, 143 Wn.2d at 587-88. However, Wells' precise request was to continue with Hoff's representation until Hoff left for vacation, and then to continue the trial pro se. Although it is clear that Wells wanted to proceed pro se to avoid a continuance, his request was not unequivocal that he wished to immediately begin to represent himself pro se. To the extent there is any ambiguity in the request, we presume that Wells waived his right to self-representation, and not his right to counsel. See Bebb, 108 Wn.2d at 526.
Because Hoff continued to represent Wells, Hoff sought the continuance as Wells' attorney. The trial court granted Hoff a continuance to allow Hoff more time to prepare for trial. As Hoff noted, he needed the extra time to prepare and to be '110 percent' to select the jury and present the case. The trial court noted that the continuance being requested was in Wells' best interest. We conclude that the trial court did not abuse its discretion in granting the continuance over Wells' objection. See Campbell, 103 Wn.2d at 15. Once the continuance was granted and the trial was set after Hoff's vacation, Wells' request to continue his trial pro se after Hoff left for vacation became moot. Wells did not make a renewed request to proceed pro se, and thus no colloquy was required.
II. Wells Was Not Entitled to Self-Defense Instructions on the Counts Against Shannon
Wells argues that he made a showing that he acted in self-defense as to the assault and robbery counts against Shannon, the passenger of the other vehicle. Therefore, he contends, the trial court erred in failing to give the jury self-defense instructions as to those counts.
To raise a claim of self-defense, the defendant must first offer credible evidence tending to prove that: `(1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; (3) the defendant exercised no greater force than was reasonably necessary; and (4) the defendant was not the aggressor.' State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997) (internal citations omitted). The State then bears the burden to prove the absence of self-defense beyond a reasonable doubt. State v. Graves, 97 Wn. App. 55, 982 P.2d 627 (1999). In order to properly raise the issue of self-defense, there only needs to be some evidence that tends to prove that the allegedly defensive crime was done in self-defense. State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983); State v. Arth, 121 Wn. App. 205, 210, 87 P.3d 1206 (2004). To determine whether sufficient evidence was produced to justify the instruction, the trial court applies a subjective standard and views the evidence from the defendant's point of view as conditions appeared to him at the time of the act. McCullum, 98 Wn.2d at 488-89. `Where a trial court has refused to give a justifiable homicide or self-defense instruction, the standard of review depends upon why the trial court did so.' State v. Brightman, 155 Wn.2d 506, 519, 122 P.3d 150 (2005) (citing State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998)). A refusal based on a factual dispute is reviewable only for abuse of discretion, but a refusal based on a ruling of law, as here, is reviewable de novo. Brightman, 155 Wn.2d at 519.
Wells testified that he `wasn't scared of' Shannon. Rather, he testified that after he picked up Stein's gun and placed it in his car, he intended to leave. But, he noticed that Stein's car was running, and he wanted to take the keys to that car so that Stein and Shannon could not follow him. He punched Shannon in the face to take the keys. Wells testified that he believed that Stein and Shannon might chase him in Stein's vehicle, and believed that Shannon might have a firearm just as Stein had. Thus, Wells argues, he demonstrated some evidence of actual reasonable threat of continued threat of unlawful force that might be used against him in what he alleges was an effort to rob him.
Wells' testimony is insufficient to show a subjective fear of imminent danger of death or great bodily harm. The Restatement (Second) of Torts sec. 29, cmts. b, c (1965), explains the meaning of `imminent':
b. The apprehension created must be one of imminent contact, as distinguished from any contact in the future. `Imminent' does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor's fist about to strike his nose. It means rather that there will be no significant delay. It is not necessary that one shall be within striking distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time.
. . .
c. The point at which an act ceases to be preparation for future contact and threatens a contact so imminent as to be actionable, is incapable of statement so exact as to be automatically applicable to the circumstances of every case which may arise. What is imminent depends upon the circumstances of the particular case and is a matter for the judgment of the court or jury.
As the trial court noted, there may have been many reasons that Wells would want to prevent Stein and Shannon from following him. However, in order to justify self-defense and thus entitle Wells to a self-defense instruction, Wells had to provide evidence showing a subjective fear of imminent danger. Wells' testimony showed subjective fear of future danger. Stein was no longer present at the scene. Shannon made no gestures or statements, threatening or otherwise, to Wells. There was no testimony showing a subjective fear of imminent danger in the circumstances of this case. We hold that the trial court did not err in refusing to give Wells' proposed self-defense instructions as to the assault and robbery counts against Shannon.
III. Wells Was Not Entitled to Necessity Defense Instructions
All self-defense `is unmistakably rooted in the principle of necessity.' Brightman, 155 Wn.2d at 521. Wells argues that he was entitled to a necessity instruction as to the assault and robbery counts against Shannon. In order to sustain a necessity defense, the defendant must show by a preponderance of the evidence that `(1) he or she reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, and (3) no legal alternative existed.' State v. Gallegos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994). The defense is inapplicable where a legal alternative was available to the defendant. State v. Diana, 24 Wn. App. 908, 914, 604 P.2d 1312 (1979).
Wells testified that he got into his vehicle and was about to drive away when he noticed Stein's vehicle was running. Fearing that Stein and Shannon would follow him, he decided to assault and rob Shannon. Wells had at least one legal alternative his testimony supported: he could have driven away. Wells argues that given his fear that Stein and Shannon would follow him, merely driving away would be inadequate to protect him. But Wells could have driven to a police station and sought protection against any potential assault. He may not have wanted to pursue this legal alternative, but it still existed. Because a legal alternative existed, the trial court properly refused to give Wells' proposed necessity instruction.
IV. Wells Was Not Entitled to a Lesser-Included Offense Instruction
A party is entitled to a lesser-included offense instruction where each element of the lesser offense must necessarily be proved to establish the greater offense (legal prong), and the evidence in the case supports the inference that the lesser offense was committed (factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). A lesser-included offense instruction should be given only if the evidence would permit a jury to rationally find the defendant guilty of the lesser-included offense and acquit him of the greater. State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997).
Both parties agree that the legal prong of the Workman test is satisfied. That is, that third-degree theft is a lesser-included offense of first-degree robbery. Wells' argument that the factual prong of Workman is satisfied hinges on Wells' entitlement to a self-defense or necessity instruction. Wells argued to the trial court that if the jurors accepted his self-defense or necessity theory as to his actions against Shannon, they `might feel that the violence against Mr. Shannon was justified, . . . but that . . . the taking of the keys and the cell phone were not justified, or that they were justified but the taking of the cash was not justified.' Defense counsel thus argued that the jury should have been given a lesser-included offense instruction on third-degree theft. The trial court properly refused to instruct the jury on self-defense or necessity as to the assault and robbery against Shannon. Absent a self-defense or necessity theory, Wells cannot satisfy the factual prong of Workman. We conclude that Wells was not entitled to a lesser-included offense instruction on theft in the third degree.
V. The Instructions as a Whole Properly Informed the Jury of the Intent Element of Second-Degree Assault
Wells argues that the trial court violated his right to due process by failing to include the element of intent in its `to convict' instructions number 6 and 10. Specifically, instruction 6 informed the jury that it had to find the following elements to convict Wells of second-degree assault:
(1) That on or about the 1st day of September, 2003, the defendant assaulted Matthew Stein;
(2) with a deadly weapon; and
(3) That the acts occurred in the State of Washington.
Instruction 10 sets forth the same elements as to the assault of Robert Shannon. Wells did not object at trial to the jury instruction he now challenges. Generally, a defendant cannot challenge a jury instruction on appeal if he did not object to the instruction in the trial court. State v. Salas, 127 Wn.2d 173, 181, 897 P.2d 1246 (1995). However, a defendant can raise such an error for the first time on appeal if the instruction involved a manifest error affecting a constitutional right. State v. Eastmond, 129 Wn.2d 497, 502, 919 P.2d 577 (1996); Salas, 127 Wn.2d at 182. Instructing the jury in a manner that relieves the State of its burden of proof is an error of constitutional magnitude that a defendant can raise for the first time on appeal. State v. Byrd, 125 Wn.2d 707, 714, 887 P.2d 396 (1995). Thus, we address Wells' challenge to Instructions 6 and 10. The trial court defined the crime of `assault' as follows in Instruction 11:
An assault is an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
(emphasis added). Criminal assault may be committed by putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm. State v. Frazier, 81 Wn.2d 628, 631, 503 P.2d 1073 (1972). Under this definition, the State must prove beyond a reasonable doubt that the defendant acted with an intent to create in his or her victim's mind a reasonable apprehension of harm. Byrd, 125 Wn.2d at 713. Wells argues that because the intent element was not included in the court's `to convict' instruction, his convictions for second-degree assault must be reversed.
When the `to convict' instruction does not attempt to contain a complete statement of the elements of the crime charged, the jury may look to the instructions as a whole. See State v. Brown, 132 Wn.2d 529, 605-06, 940 P.2d 546 (1997). The `to convict' instruction at issue here stated simply that the jury had to find that Wells committed assault with a deadly weapon on or about September 1, 2003. The jury would have logically inferred that it had to refer to the other instructions to determine whether Wells' actions met the legal requirements for assault.
The Supreme Court applied this principle in Byrd when a `to convict' instruction for second-degree assault failed to refer to intent. Byrd, 125 Wn.2d at 714. The Court held that `the instructions, taken in their entirety' must inform the jury that the State had the burden of proving that the defendant acted with intent to create a reasonable apprehension of harm. Byrd, 125 Wn.2d at 714-16. Similarly, the court in State v. Eastmond, 129 Wn.2d 497, 502-03, 919 P.2d 577 (1996), looked to the instructions as a whole to determine whether they cured the deficiency found in a `to convict' instruction for second-degree assault that omitted the element of intent. See also State v. Hall, 104 Wn. App. 56, 63, 14 P.3d 884 (2000) (no error where `to convict' instruction omitted the intent element because instructions as a whole properly informed the jury that intent was essential element of third-degree assault).
In Eastmond and Byrd, the court found that the to-convict instructions on assault erroneously omitted the specific intent element, and that the instructions as a whole did not cure the error. Eastmond, 129 Wn.2d at 503; Byrd, 125 Wn.2d at 715. Here, unlike in Byrd or Eastmond, instruction 11 defined `assault' to require a finding that Wells acted with intent to create apprehension or fear of bodily injury. Instruction 11 correctly defined assault with its required form of intent. Thus, the instructions as a whole properly informed the jury of the specific intent element of second-degree assault and Wells' argument fails.
VI. Wells' Convictions on Assault and Robbery as to Shannon Violate His Protection Against Double Jeopardy
Robbery in the first degree and assault in the second degree generally merge unless there is an independent purpose or effect of the assault from the robbery. State v. Freeman, 153 Wn.2d 765-66, 108 P.3d 753 (2005). A defendant who is convicted of second-degree assault and first-degree robbery under such circumstances is entitled to vacation of the second-degree assault conviction. See Freeman, 153 Wn.2d at 755, 760. Wells argues and the State concedes that under the facts of this case, the assault was done for the purpose or effect of furthering the robbery and that the convictions should merge. We vacate the conviction for second-degree assault as to Shannon and remand the case for resentencing for Wells' convictions for first-degree robbery of Shannon and the second-degree assault of Stein.
VII. Wells Is Not Entitled to Relief on Any of the Additional Grounds Raised A. The Trial Court Did Not Err in Allowing the State to Amend the Charging Document During TrialThe trial court allowed the State to amend the information in this case. The original robbery count in the information alleged that Wells `did unlawfully take personal property, to wit: cash' from Shannon. The amended information removed the words `to wit: cash.' Wells argues that the trial court erred in allowing the State to amend the information during trial. CrR 2.1(d) provides the court may permit an information `to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced.' The defendant has the burden of showing prejudice. State v. Brown, 74 Wn.2d 799, 801, 447 P.2d 82 (1968). The fact that the defendant did not request a continuance is persuasive of lack of surprise and prejudice. Brown, 74 Wn.2d at 801.
The trial court's ruling on a motion to amend an information is reviewed for abuse of discretion. State v. James, 108 Wn.2d 483, 490, 739 P.2d 699 (1987). Where the principal element in the new charge is inherent in the previous charge and no other prejudice is demonstrated, it is not an abuse of discretion to allow amendment on the day of trial. State v. Johnson, 7 Wn. App. 527, 500 P.2d 788 (1972), aff'd, 82 Wn.2d 156, 508 P.2d 1028 (1973).
Here, the original information and the amended information both contained the charge of robbery in the first degree. The amended information only removed the specification that the personal property taken was cash and thus allowed the State to argue that in addition to cash the phone and keys were personal property taken in the robbery. Wells argues that the change forced him to shift his defense theory more than midway through trial and caused him prejudice because his defense against a taking of cash was solid.
However, Wells was apprised of the nature of the charges against him. Although the motion to amend was granted on the second day of trial, the State brought the motion immediately following opening arguments. And even though Wells' justification theories for taking the phone and keys were not supported by the evidence, and the jury was properly not instructed as to the theories, Wells could still continue to argue the theories to the jury after the amendment. The trial court concluded that the removal of the words `to wit: cash' was not `so critical to the defense case that there is prejudice by the amendment.' We conclude that the trial court did not abuse its discretion in granting the motion to amend.
B. Wells Is Not Entitled to Any Relief on the Ground of Josh Taylor's or Jill Grace's Testimony or Failure to Testify
A criminal defendant has both a constitutional and statutory right to compel the attendance of witnesses. U.S. Const. amend. 6; Wash. Const. art. 1, sec. 22; RCW 10.46.080; State v. Watson, 69 Wn.2d 645, 651, 419 P.2d 789 (1966); State v. Kearney, 11 Wn. App. 394, 523 P.2d 443 (1974). `[T]he sixth amendment right to compulsory process guarantees a criminal defendant the right to present witnesses to establish his defense.' United States v. Whittington, 783 F.2d 1210, 1218 (1986) (citing Washington v. Texas, 388 U.S. 14, 17-19, 87 S. Ct. 1920, 1922-23, 18 L. Ed. 2d 1019 (1967)); State v. Roberts, 80 Wn. App. 342, 350, 908 P.2d 892 (1996).
The right to present a defense is not unqualified, but is subject to countervailing public interests. United States v. Williams, 205 F.3d 23, 29 (2d. Cir. 2000). The Fifth Amendment declares that no person `shall be compelled in any criminal case to be a witness against himself.' U.S. Const. amend. 5. The federal guaranty against self-incrimination has been extended to the states. Lougin, 50 Wn. App. at 380 (citing Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964)). `[T]he defendants' sixth amendment rights do not override the fifth amendment rights of others.' Whittington, 783 F.2d at 1218-19 (citing United States v. Lacouture, 495 F.2d 1237 (5th Cir. 1974)); State v. Lougin, 50 Wn. App. 376, 379-80, 749 P.2d 173 (1988) (citing State v. Parker, 79 Wn.2d 326, 331, 485 P.2d 60 (1971)). The privilege against self-incrimination includes the right of a witness not to give incriminatory answers in any proceeding civil or criminal, administrative or judicial, investigatory or adjudicatory. Lougin, 50 Wn. App. at 380 (citing Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972)).
1. Witness Intimidation of Taylor
Wells argues that the prosecutor intimidated a key defense witness, Josh Taylor, by implying that if Taylor testified, he would be charged with a crime. In Williams, the Second Circuit held that `judicial or prosecutorial intimidation that dissuades a potential defense witness from testifying for the defense can, under certain circumstances, violate the defendant's right to present a defense.' Williams, 205 F.3d at 29. Substantial governmental interference with a defense witness's choice to testify may violate the due process rights of the defendant. Whittington, 783 F.2d at 1219 (citing United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980)). A defendant pressing such a claim must show bad faith on the part of the government. Williams, 205 F.3d at 29.
Here, the State noted to the trial court that by most accounts from both sides, Taylor was involved in setting up drug deals. Hoff testified that he intended to elicit testimony from Taylor that was consistent with Wells' testimony that Taylor was setting up drug deals. The State also noted that it intended to ask Taylor whether he was involved in arranging drug deals. Both parties addressed the court about the issue without Taylor present in the courtroom. The State did not independently contact Taylor or threaten him with prosecution if he testified in Wells' favor. The State noted that Taylor did not have counsel, and that `different judges respond differently to this type of an issue.' The Court responded to the State's concern by having conflict counsel appointed to represent Taylor. Wells has not shown that the State acted in bad faith or intimidated Taylor by threat of prosecution and thus his due process claim fails.
2. Taylor's Invocation of Privilege Against Self-Incrimination
`A witness does not have the absolute right to remain silent when called to testify, as does a defendant in custody or on trial.' Lougin, 50 Wn. App. at 381 (citations omitted). In general, a claim of privilege may be raised only against specific questions, and not as a blanket foreclosure of testimony. Eastham v. Arndt, 28 Wn. App. 524, 532, 624 P.2d 1159 (1981). `Furthermore, unless the question would obviously and clearly incriminate the witness, a claim of privilege against answering it must be supported by facts which, aided by use of reasonable judicial imagination, show the risk of self-incrimination.' Lougin, 50 Wn. App. at 381 (internal citation and quotations omitted).
It is the trial court's function to determine whether silence is justified. The trial court must require the witness to answer if, based upon the particular facts of the case, it clearly appears that silence is not warranted. Hoffman v. United States, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 71 S. Ct. 814 (1951). Such determination is `vested in the trial court to be exercised in its sound discretion under all of the circumstances then present.' Parker, 79 Wn.2d at 332.
After Taylor was appointed conflict counsel, the court and counsel engaged in a dialogue outside the presence of the jury. In that dialogue, the court allowed Hoff to put Taylor on the stand and ask him questions to determine the scope of Taylor's intention to invoke his right against self-incrimination. Taylor indicated that on advice of his appointed counsel, he intended to assert his right against self-incrimination as to all questions except as to his name.
The trial court did not rule that Taylor could not be called or questioned in light of his intention to invoke his Fifth Amendment rights. Rather, the defense chose to put Taylor on the stand for the limited purpose of stating his name, so that at least the jury would know that `he is a living, breathing human being.' The State asked to ensure that Taylor would be asked only his name, stating that `I don't want [Hoff] firing off a bunch of questions about [Taylor] taking the Fifth Amendment.' Hoff agreed that he would ask Taylor only his name. Taylor testified to his name on the stand. Neither Hoff nor the State asked any additional questions, as agreed. Thus, Taylor did not invoke his right against self-incrimination on the stand before the jury.
Hoff did not assert a right to put Taylor on the stand and then make him claim his privilege to a specific question. See Lougin, 50 Wn. App. at 382. The defense rather seemed to concede that Taylor could invoke the privilege as to all matters beyond his name. Thus, the defense waived the issue on appeal. However, Wells argues in his statement of additional ground that Hoff was ineffective in failing to properly preserve the issue for appeal.
A defendant claiming ineffective assistance of counsel must demonstrate (1) that his counsel's performance was so deficient that he was not functioning as the `counsel' guaranteed by the Sixth Amendment, and (2) that the defendant was prejudiced by reason of his counsel's actions such that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). Either prong of the Strickland test may be examined first, and if one of the two prongs is not satisfied, an examination of the other is unnecessary. See, e.g., In re Pers. Restraint of Riley, 122 Wn.2d 772, 780, 863 P.2d 554 (1993).
There is a strong presumption in favor of effective representation, and counsel's conduct will be found to be effective if it can plausibly be characterized as sound trial strategy. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). `Deficient performance is not shown by matters that go to trial strategy or tactics.' State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). The second prong of Strickland requires the defendant to prove there is a reasonable probability that the result of the proceeding would be different. State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991).
The only inquiry is whether Hoff was ineffective for acquiescing to the State's objection to putting Taylor on the stand and requiring him to invoke his right against self-incrimination before the jury. The decision not to make Taylor invoke his right before the jury could be tied to trial strategy. Hoff may have decided that in calling Taylor and asking him further questions only to have him invoke his right, he may have seemed to have been grasping at straws and undermined his efforts.
Furthermore, Hoff was able to argue his theory of the case to the jury, with the jury aware that Taylor was a real person. To the extent Taylor's invocation of his right would have supported testimony that he set up the drug deal, Wells and Stein had already consistently testified that Taylor set up the drug deal. Wells' counsel indicated that he intended to elicit this information from Taylor to corroborate Wells' testimony. Taylor made clear indications that he would not have testified to anything of substance. The facts strongly indicate that in the face of any question relevant to the information Wells sought to elicit, Taylor, with the advice of counsel, would immediately have claimed his privilege. Under these circumstances, we hold that Hoff was not ineffective for acquiescing in the State's objection, and Wells cannot show that he was prejudiced in his right to a fair trial.
3. Jill Grace's Failure to Appear At Trial
A material witness warrant is issued only when the defendant can show that the testimony of a witness is in fact material and could affect the outcome of the trial. CrR 4.10(a); State v. Hartley, 51 Wn. App. 442, 446, 754 P.2d 131 (1988); City of Bellevue v. Vigil, 66 Wn. App. 891, 895-96, 833 P.2d 445 (1992). The defendant bears the burden of establishing the relevance and admissibility of the proposed testimony. Roberts, 80 Wn. App. at 351. A trial court's decision to grant or deny a motion for a material witness warrant is reviewed for abuse of discretion. Vigil, 66 Wn. App. at 895. Jill Grace had been inside the retirement center at the time of the incident. Wells argues that Grace was an independent witness who saw much of what happened in the parking lot. Wells contends that the deprivation of Grace's testimony constitutes reversible error. The State subpoenaed Grace, but her daughter was in the hospital with leukemia. Grace acknowledged receipt of the subpoena but told the State that she would not honor the subpoena. The State mentioned the possibility of seeking a material witness warrant, but the court asked the State not to put it in that position. The State ultimately did not call Grace as a witness. Defense counsel apparently sent an investigator or other party to secure Grace's presence but was unable to do so. There is no indication in the record that defense counsel sought to obtain Grace's presence by asking the court for a material witness warrant.
Although both parties listed Grace as a witness, neither made a formal offer of proof as to her expected testimony. In explaining the circumstances of her absence, the State told the Court that Grace did not see the entire event but would have testified that she saw Stein running by the window, saw a conversation or dialogue in the parking lot between Shannon and Wells, and saw a couple of items thrown out of the window of one of the cars. Such testimony would have supported uncontroverted facts that were consistent with both the State's and Wells' version of the incident. Such testimony would not have been exculpatory.
In his statement of additional grounds for review to this court, Wells asserts that Grace stated that she saw what happened in the parking lot after Stein ran, but that she never saw a gun. No evidence in the record supports Wells' contention that Grace would have given this testimony, and the defense did not make an offer of proof to the trial court that Grace would give this testimony. Because Wells' contention as to Grace's expected testimony is based on evidence outside the record, we refuse to consider it. See McFarland, 127 Wn.2d at 338.
Because Wells did not seek either a material witness warrant or a continuance, he cannot claim that the trial court violated his right to compulsory process by failing to issue a warrant. See State v. Mims, 9 Wn. App. 213, 220, 511 P.2d 1383 (1973) (holding that where potential witnesses failed to attend trial to testify, failure to request continuance to locate witnesses precluded claim of denial of due process of law).
Wells argues that Hoff assured him that he would procure Grace as a witness and was ineffective in failing to seek a material witness warrant. But counsel's conduct will be found to be effective if it can plausibly be characterized as sound trial strategy. See McFarland, 127 Wn.2d at 335-36; Mierz, 127 Wn.2d at 471. Given the marginal value of Grace's testimony to Wells, Wells' counsel may have concluded that having an antagonistic witness on the stand or one who testified she had been subpoenaed from the bedside of her daughter hospitalized with leukemia would not be in Wells' best interest. We conclude that Hoff's decision to not compel Grace's presence may have been tied to trial strategy and therefore does not make Hoff's performance deficient.
C. Wells Has Not Shown Prejudicial Prosecutorial Misconduct
To prevail on a claim of prosecutorial misconduct, the defendant must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997); State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681, review denied, 151 Wn.2d 1039 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). We view allegedly improper statements within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, the jury instructions, and the corrective actions of the court. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003); Brown, 132 Wn.2d at 561; State v. Kroll, 87 Wn.2d 829, 836-37, 558 P.2d 173 (1976).
Comments are prejudicial when there is a substantial likelihood that they affected the jury's verdict. Brown, 132 Wn.2d at 561. Comments that encourage a jury to render a verdict on facts not in evidence are improper. State v. Stover, 67 Wn. App. 228, 230-31, 834 P.2d 671 (1992). A prosecutor has `no right to call to the attention of the jury matters or considerations which the jurors have no right to consider.' State v. Case, 49 Wn.2d 66, 71, 298 P.2d 500 (1956)). Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991); State v. York, 50 Wn. App. 446, 458, 749 P.2d 683 (1987).
1. Prior Convictions
The prior convictions of Wells admitted at trial were two counts of theft in the second degree in 2000, and one count of forgery in 2000. In closing, the prosecutor stated, `You have learned that [Wells] has convictions for possession of stolen property and for forgery.' There was no evidence of a prior conviction of possession of stolen property in the trial record, and therefore the prosecutor misspoke when he told the jury they learned of prior possession convictions. Wells argues that the comment was improper. By failing to object at trial Wells waived this issue. However, Wells also argues that his trial counsel was deficient for failing to preserve the issue.
We agree that the comment was improper because the prosecutor was commenting on facts not in evidence. To prevail on his claim of prosecutorial misconduct, however, Wells must also show that the comment was prejudicial in the context of the record as a whole and the circumstances at trial. The jury instructions clearly state the only evidence the jury is to consider is the testimony and exhibits, and that attorney remarks are not evidence. Earlier in the prosecutor's closing argument, the court had told the jury that the attorneys can refer to the testimony, but may or may not be right about what the testimony has been, and that it is the jury's job to figure out what the testimony actually was. Courts generally presume jurors follow instructions to disregard improper evidence. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994).
The prosecutor did not add possession to the list of prior convictions the jury was informed of, but misstated that the prior convictions were for possession of stolen property and not for theft. On this record, Wells has not shown a substantial likelihood that the prosecutor's misstatement affected the jury's verdict. Thus, we need not reach Wells' claim that his trial counsel was ineffective for failing to preserve the issue.
2. Coaching Witness/Recorded Conversation
When Wells was jailed after this incident, he placed a phone call to Stein. That phone call was recorded by the jail. On the morning of August 24 before trial restarted, the State argued that the recording should be admissible because prior to the recording, an automated voice told the parties that the call was going to be recorded. The tape itself did not contain the jail's automated warning that the conversation would be recorded. Wells argued that the law clearly required the consent to having a conversation recorded be included on the recording itself. The State wished to introduce the recording to corroborate Stein's testimony that about the conversation. The court reserved ruling on the issue until it reviewed the law.
Stein had started his testimony on August 23, 2004. He continued with his testimony on August 24, 2004. That morning, prior to the start of trial, the State had Stein listen to the contested tape recording. Wells objected to the State questioning Stein about the conversation, on the ground that by having listened to the recording, Stein viewed an illegally obtained transcript to `get his testimony down about that telephone conversation.' Wells argued that evidence obtained from an illegal recording could not be used for any purpose, even impeachment. The State agreed to `stay away from that area' in his questioning of Stein until the court ruled as to the legality of the recording, and the court limited the testimony to other telephone calls until it had a chance to review the law.
The trial court ultimately ruled that unless the recording itself contained a warning that the conversation was going to be recorded, it was inadmissible. The court also excluded Stein's testimony as to that conversation on the ground that he had an opportunity to listen to a tape recording of the conversation. The court noted that the cases give a wide reading to the prohibition on the use of unauthorized recordings.
Stein resumed his testimony, and the State promptly asked him `Was there one phone call that came from [Wells] while he was in the Skagit County jail?' Wells objected and moved for a mistrial. The State clarified, with the jury absent, that there were two conversations from the jail, and he was trying to steer Stein toward the second conversation. The court stated that it understood what the prosecutor was trying to do, but required the prosecutor to `focus in some other way by using dates of something of that nature.' The court then cautioned Stein that he was allowed to talk about all the conversations with Wells except the conversation involving the recording. The court then brought in the jury and instructed them that the last answer was stricken from the record and that the jury was to disregard it. After further testimony as to Stein's conversations with Wells, defense counsel agreed with the court that the parties had not `strayed into that area at all.'
Wells asserts that the prosecutor committed misconduct by allowing Stein to listen to the tape recording, and again by questioning Stein about the conversation that was recorded after the trial court limited testimony to exclude that conversation until its ruling as to the legality of the recording. Any prejudice resulting from misconduct by the prosecutor in allowing Stein to listen to the tape recording was cured by the trial court's exclusion of the recording and Stein's testimony as to the conversation. And, it is clear from the record that the prosecutor did not question Stein about that conversation, but rather attempted to question Stein about other telephone conversations with Wells. To the extent that the prosecutor's question improperly referred to the excluded conversation, the trial court struck Stein's answer from the record and admonished the jury not to consider it. Thus there was no prejudice to Wells, and we hold that Wells has not proven prejudicial prosecutorial misconduct as to the use or mention of the recorded conversation.
3. Improper Comments on Witness Credibility
Wells argues that the prosecutor improperly commented in rebuttal closing argument on witness credibility by stating that `[t]hese are people who are not in the main stream' and that `there is a tendency to discount everything that they say.' By failing to object at trial Wells waived this issue. However, Wells also argues that his trial counsel was deficient for failing to preserve the issue.
In context, the prosecutor was responding to Wells' counsel's closing argument. In the defense closing argument, defense counsel disparaged the credibility of the State's witnesses. Hoff stated that the one word that `encapsulate[d] everything that came out of that microphone' when the State witnesses testified was `[b]aloney.' Hoff also stated that when Shannon testified that he was buying the marijuana to treat his father's PTSD, `the baloney meter went up to the bovine excrement zone.'
`[T]he prosecutor, as an advocate, is entitled to make a fair response to the arguments of defense counsel.' State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994) (citing United States v. Hiett, 581 F.2d 1199, 1204 (5th Cir. 1978)). Here, defense counsel disparaged the testimony of all the State's witnesses. The prosecutor, very specifically in response to this argument, conceded that `these are some unsavory characters we are dealing with here.' The prosecutor then argued that although there is a need to look at their testimony carefully, the case was not about the witnesses in particular but about the evidence, including testimony from officers that had `no connection whatsoever with this group of people other than doing the investigation.' The prosecutor did not improperly vouch for the credibility of any particular witness or witnesses. Rather, he restated the trial court's instruction to the jury that they are the judges of the credibility of the witnesses and the weight to be given to the testimony of each witness.
Viewed in the context of the total argument, the issues in the case, and the evidence addressed in the argument, Dhaliwal, 150 Wn.2d at 578, the State's comments were not improper. Moreover, remarks of the prosecutor, including such as would otherwise be improper, are not grounds for reversal where they are invited, provoked, or occasioned by defense counsel and where they are in reply to or retaliation for his acts and statements, unless such remarks go beyond a pertinent reply and bring before the jury extraneous matters not in the record, or are so prejudicial that an instruction would not cure them.
State v. Dennison, 72 Wn.2d 842, 849, 435 P.2d 526 (1967). We hold that there was no misconduct and thus need not address Wells' argument that his counsel was ineffective for failing to object.
D. The Trial Court Did Not Abuse Its Discretion in Allowing Detective Wise's Testimony
A trial court's decision as to the admissibility of evidence is reviewed under an abuse of discretion standard. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). There is an abuse of discretion when the trial court's decision is manifestly unreasonable or based upon untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Wells argues that the trial court abused its discretion in allowing Deputy Bill Wise to testify to Wells' statement in a phone conversation that Wells `was expecting to go to prison due to a pending robbery charge.' Outside the presence of the jury, the parties discussed a conversation between Wells and Wise. Wells called Wise and offered to assist Wise in recovering firearms and other stolen property in other burglaries not related to the incident at trial. Wise told Wells that if he assisted in recovering the firearms and stolen property, Wise would report his cooperation to the prosecutor's office. Wise wrote in his report that Wells responded that `it would not make any difference due to his criminal history and he is expecting to serve 20 years in prison due to a pending robbery charge and other offenses.'
Wells argues that Wise admitted that he was not sure whether Wells used the verb `expecting,' that Wise wrote down the conversation to the best of his recollection, but that Wells could have used another verb with a similar meaning. Wells later testified that he used the words `looking at.' Wells argues that the defense was unable to properly cross-examine Wise about the conversation without opening the door to other prejudicial information. The trial court ruled the evidence admissible as consciousness of guilt. The trial court limited Wise's testimony and instructed Wise not to mention the other burglaries, firearms, Wells' criminal history, Wells' expectation of 20 years, or other details of the conversation. The trial court carefully circumscribed the scope of the testimony to avoid prejudicial material. It is true that Wells could not engage in a thorough cross-examination of Wise without opening the door to the other content in the conversation that the trial court excluded. But the evidence was excluded to protect Wells, and its exclusion did not render the admissible portion of the conversation inadmissible. Wells could have chosen to cross-examine Wise and allow the otherwise inadmissible evidence, had he wished. We hold that the trial court did not abuse its discretion in admitting the evidence.
E. Jurors' Potential View of Wells in Jail Attire Does Not Require Reversal
During Stein's testimony, the prosecutor asked Stein whether he received a phone call from jail. Wells objected, and in an ensuing discussion outside the presence of the jury, the prosecutor stated that the jury already knows Wells was arrested, and that `[c]ertainly he has come in wearing jail clothes.' For purposes of this analysis we assume from the prosecutor's statement that the jury saw Wells in jail clothes at some point during the trial. There is no evidence in the record that the jury saw Wells in shackles. There is no evidence of the viewing in the record other than the prosecutor's statement. It is unclear when the viewing was or for how long it lasted. There is no allegation or indication that Wells stood trial in jail attire.
In State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982), some members of the jury presumably saw the defendant in shackles when the shackles were removed in the hallway just outside the courtroom. The Gosser court held that it is not reversible error simply because jurors see a defendant wearing shackles. Gosser, 33 Wn. App. at 435. Absent a showing of prejudice, a defendant's failure to request a limiting instruction directing the jury to disregard the incident, or the court's failure to give one sua sponte, does not warrant reversal. See State v. Ollison, 68 Wn.2d 65, 69, 411 P.2d 419 (1966).
Under Gosser and Ollison, the mere appearance of the defendant in shackles is insufficient to justify a reversal. It is logical to infer that when a jury sees a defendant in shackles, as when a jury sees a defendant in jail clothes, the jury becomes aware that the defendant is in custody. But the added prejudice of seeing a defendant in shackles is that `the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers,' In re Pers. Restraint of Davis, 152 Wn.2d 647, 693 n. 109-10, 101 P.3d 1 (2004) (internal citations and quotations omitted). This prejudice from being shackled does not accompany viewing the defendant in jail clothes without shackles. Therefore, if the mere appearance of a defendant in shackles is insufficient to justify reversal absent prejudice, then mere appearance of a defendant in jail clothes without shackles is also insufficient to justify reversal absent prejudice. Here the record does not show prejudice to Wells. In his own testimony, Wells referred to having been in jail (although this reference was to being in jail closer to the time of the incident, and not to the time of trial). The jurors were clearly aware that Wells had been charged with multiple crimes and spent some time in jail. Without any showing of prejudice, we conclude that reversal is not required by the jurors' potential view of Wells in jail attire.
F. Cumulative Error Does Not Justify Reversal
`It is well accepted that reversal may be required due to the cumulative effects of trial court errors, even if each error examined on its own would otherwise be considered harmless.' State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994). This court has exercised its discretion under RAP 2.5(a)(3) to review all claims, even those that were not properly preserved for appeal, where it found that the cumulative effect of errors was to deny the defendant a fair trial.
State v. Alexander, 64 Wn. App. 147, 150-51, 822 P.2d 1250 (1992). The errors in Wells' trial were the double jeopardy violation, prosecutorial misconduct, and the potential juror view of Wells in jail attire. The double jeopardy violation is being remedied by a remand for resentencing. The cumulative effect of the remaining two errors remains harmless and we deny relief on the ground of cumulative error.
We remand for resentencing.
COX and AGID, JJ., concur.