          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                 ) ( No. 74028-8-I
                                         )
                     Respondent,         )
                                         )   DIVISION ONE
                     v.                  )
                                         )
DEJON LEE PAYNE,                         )   UNPUBLISHED OPINION
                                         )
                     Appellant.          )   FILED: October 9, 2017
                                         )

       MANN, J. — Dejon Payne was charged with attempted murder in the first degree

with a firearm and assault in the first degree with a firearm, after shooting Terrance

Nicholson six times at close range. Nicholson identified Payne as the shooter both

immediately after the shooting and at trial. A jury convicted Payne as charged. The trial

court vacated the first degree assault conviction on double jeopardy grounds. Payne

appeals arguing that the trial court erred by:(1) excluding evidence that one of the

State's witnesses had a pending criminal charge,(2) admitting evidence that Payne was

arrested in California five months after the shooting, and (3)denying his motion for a

new trial based on juror misconduct.

       We affirm.
No. 74028-8-1/2


                                              FACTS

                                           Background

       Most of the parties and witnesses in this case lived, or spent considerable time,

at the Ballinger Homes apartment complex in Shoreline. During the winter of 2013 to

2014, Nicholson was 34 years old. Nicholson was a local multi-sport athlete during high

school and attended Shoreline Community College and the University of Central Florida

where he graduated with a degree in business finance. Nicholson's best friend since

childhood was RomeII Liddell. Liddell's long-time girlfriend and mother of his two

daughters, Vi Le, was a resident at Ballinger Homes. Although Liddell did not officially

live at the complex, he spent most of his time there.

       Nicholson and Liddell were also friends with several other people living in the

area, including Kevin Nguyenl and his brother Hoang Nguyen. Another neighbor, Patric

Heisser, lived with his girlfriend across the courtyard from Liddell and Le. He was

acquainted with Liddell and Le but did not know them very well. Their daughters played

together at the complex.

      In the summer of 2013, Dejon Payne, a 29 year old from Los Angeles, started

spending time at the Ballinger Homes complex and socializing regularly with Liddell,

Nicholson, and their friends. They knew Payne only as "Young." Payne was staying in

a nearby unit.

      Later in the summer, Payne started displaying large amounts of cash and

boasting of plans to buy an expensive sports car. Nicholson, Liddell, and some of their

other friends, talked about stealing from Payne. In October 2013, Nicholson came

      1 To distinguish from his brother Hoang, Kevin Nguyen will be referred to as "Nguyen."

                                              -2-
No. 74028-8-1/3


home to find Liddell and a friend there with about $10,000 of Payne's cash, his

cellphone, and some of his electronics. Liddell gave Nicholson some of the money.

       On October 8, 2013, Payne contacted the police and reported that four days

earlier he woke up in his friend's apartment at Ballinger Homes to see Nicholson and

another man leaving with his bag of cash and electronics. Payne was upset about the

theft and wanted the police to find his property. Shortly after, Payne confronted

Nicholson and accused him of taking the money. Nicholson said that he did not take

the money and did not know what happened to it. After the theft, Nicholson testified that

he would still see Payne around the Ballinger Homes complex but Payne no longer

hung out with Nicholson, Liddell, or their other friends.

                                         The Shooting

       The shooting took place on January 1, 2014. Heisser testified that in the early

afternoon, he looked out his window overlooking Le's apartment and saw Payne

standing outside the building. Heisser did not know Payne personally, but recognized

him because he had seen him around the complex many times. Heisser was unable to

identify Payne in a pretrial photomontage as the man standing outside on the day of the

shooting. However at trial, Heisser identified Payne as the man he had seen standing

outside of Liddell and Le's apartment.

       Heisser also testified that he saw Liddell leave his house about 10 minutes

before the shooting and saw Liddell with Nguyen a few minutes before the shooting.

Nguyen confirmed that before the shooting he and Liddell left the complex to visit a

friend down the street. Nguyen also testified that he and Liddell saw Payne near the

parking lot and talked to him briefly.

                                           -3-
No. 74028-8-1/4


       Shortly thereafter, Nicholson arrived at Le's residence to visit Liddell. Nicholson

went around to a side door and knocked, but nobody answered. Nicholson soon

noticed that Payne was standing behind him. After a brief conversation, Payne shot

Nicholson in the stomach. The two wrestled for the gun, and another gunshot hit

Nicholson in the thigh. Nicholson fell to the ground and Payne shot him four more

times, six shots in total. Payne then ran from the area.

       Hoang Nguyen testified that he heard someone say,"what's up man?" and then

heard a series of gunshots. Hoang ran to Nicholson and saw a black man in a hooded

jacket fleeing around the other side of the building, with no one else around. Hoang

called 911 and stayed with Nicholson, who told him that "Young" had shot him.

        Le testified that she heard the shots from inside the apartment and heard

Nicholson's cry for help. She opened her door and found Nicholson on the ground.

When she asked Nicholson who shot him, he said "Young." Liddell showed up a few

minutes after the shooting and Nicholson told him "Young" had shot him. When police

arrived, Nicholson also told a deputy that "Young" had shot him. The deputies

immediately began searching for "Young," who they later identified as Payne.

       Payne was eventually arrested in California on May 30, 2014. Payne was

charged with attempted murder in the first degree with a firearm and assault in the first

degree with a firearm.

                           Cross-Examination of Kevin Nguyen

       Before calling Kevin Nguyen to testify, the State notified the trial court that it was

attempting to arrange time for defense counsel to interview Nguyen "given that he has

told Detective Bartlett that he has more helpful information for our case in the context of

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No. 74028-8-1/5


he has got pending charges." After interviewing Nguyen, Payne informed the court that

Nguyen had a pending residential burglary charge, and that he told Detective Bartlett

"that he would give her helpful information if she would give him a deal on the charge."

Payne acknowledged that Detective Bartlett and the prosecutor informed Nguyen that a

deal "wasn't going to happen." Payne informed the court that he intended to question

Nguyen about his offer.

       The trial court questioned the relevance: "If he is not getting any kind of offer

from the State, I don't see how it is relevant that he has a charge. It is not readily

admissible, and I don't see how it goes to bias if he doesn't have the predicate for bias."

Payne replied that Nguyen told her "that if they gave him a deal, he would give some

helpful information" and that "he would have just made something up." Payne argued

that this went to his credibility—that "he will make up facts about this case in any way

that's helpful to him." The trial court reiterated that Nguyen offered to give information in

exchange for a deal, but "the deal was refused, there was no prospect of a deal, so it is

not pertinent here, okay?" The court concluded "It is distracting, it is irrelevant, it is out."

       During cross-examination, Payne attempted to impeach Nguyen's credibility by

pointing out that he had previously told a defense investigator that he never saw Payne

at the scene, and that he had never known anyone named "Young." Payne also asked

Nguyen about a statement he allegedly made that "he was not sure which version [he

was] going to say on the stand." Nguyen explained these statements by claiming he

was scared for himself and his family, or simply denied having made them.




                                            -5-
No. 74028-8-1/6


                         Evidence of Payne's Arrest in California

       Before trial, Payne moved to exclude "all testimony that Payne was arrested in

California and extradited back to face these charges" because it was not related to

"fleeing or consciousness of guilt." Payne's trial brief specifically moved to exclude

"testimony or argument that he 'fled' to California to avoid prosecution and that flight

demonstrates consciousness of guilt."

       The State replied that it intended to argue that Payne fled to California after the

shooting. The State planned to support this argument with evidence that Payne had

been arrested in California four months after the shooting. There was evidence that

Angel (Miranda) Olson, Payne's girlfriend and mother of his child, had been in

Washington at the time of'the shooting, used her debit cards in California a few days

after the shooting. The inference being that Payne was probably with Olson at the time.

The trial court believed evidence that Payne ran from the scene and "very shortly

thereafter" relocated to California "could be" viewed as a deliberate effort to avoid arrest

and prosecution, and "could be" is "all that's really needed for this to be admissible."

       The trial court ruled the evidence was admissible as evidence of flight on the

condition that the State was able to lay the foundation for the evidence by

demonstrating a link between Payne and Olson and their shared child. Assuming the

foundation was laid, the trial court limited the evidence of flight to:(1) Payne's behavior

in running away and into a vehicle that left the scene,(2) where hotel records showed

Olson was staying while the police were looking for Payne,(3) Olson's location after the

shooting based on business records such as EBT transactions, and (4) where Payne

was ultimately located at the time of his arrest.

                                          -6-
No. 74028-8-1/7


       Near the end of the State's case, Payne pointed out that the nexus between

Payne and Olson had not been established. Payne sought to ensure that the testifying

police officers were not going to "testify about the hotels." The State conceded that it

was not "going to make that nexus," so it would not ask "anything in particular about

Miranda Olson." Payne did not reiterate his request that the trial court exclude the

evidence that Payne was arrested in California.

       Later, the State asked Detective Bartlett, the State's final witness, about the

police investigation:

      [Prosecutor]: What was being done to try and find [Payne]?
      [Bartlett]: There was a warrant placed, the case was charged, a warrant
      was placed out through NCIC, which is nationwide. So again, if anybody
      runs his name, that warrant would pop up.
      [Prosecutor]: When was Mr. Payne arrested?
      [Bartlett]: I believe it was December 19th, 2014.
      [Prosecutor]: Is that in your report?
      [Bartlett]: No.
      [Prosecutor]: Where was Mr. Payne arrested?
      [Bartlett]: In California.
      [Prosecutor]: All right. Are you certain about the date, or is that just a date
      that stuck out to you?
      [Bartlett]: Well I can't be certain without having the paperwork.

Report of Proceedings(RP)(May 4, 2015) at 317-18. The State then rested. Payne did

not object to this testimony or cross-examine the witness on this issue.

                                          Verdict

       After deliberation, the jury convicted Payne of attempted murder in the first

degree with a firearm and assault in the first degree with a firearm. The trial court

vacated the first degree assault conviction on double jeopardy grounds.




                                          -7-
No. 74028-8-1/8


              Motion for New Trial Based on Allegations of Jury Misconduct

       During voir dire, the names of potential witnesses were read to the prospective

jurors and the jurors were asked if they recognized any of the witnesses. Jurors 12 and

13 did not respond. The trial court also advised, "[u]sually if you know somebody well

enough to recognize them, you normally know their name too. But I will tell you that if

you spot someone that you know when they come in to testify, just let us know right

away."

       Nicholson began his testimony on April 29. Nicholson testified that he went to

three different local high schools and played "all sports," including "basketball, football,

soccer, ran track." He testified that he continued playing basketball at Shoreline

Community College and the University of Central Florida. Nicholson also testified that

one of the reasons Liddell became his best friend was that Liddell's older brother taught

Nicholson to play basketball. Basketball was one of Liddell and Nicholson's primary

activities at Ballinger Homes.

       The day after Nicholson's testimony, the trial court informed the parties that juror

13:

       recognized Mr. Nicholson's high school, it's a high school she attended.
       She didn't recognize Mr. Nicholson, didn't know Mr. Nicholson. Her worry
       is if people who attended her high school show up, that she might
       recognize them.

The court then stated that it did not feel "concerned about this" and was not inclined to

question the juror unless the parties wanted her to. The trial court directed juror 13 to

inform the court if she recognized anyone else. Neither the State nor Payne objected or

asked the court to further question juror 13.


                                          -8-
 No. 74028-8-1/9


         After the verdict, Payne moved for a new trial based on juror misconduct.2 Payne

argued his right to a fair trial was violated because one of the jurors failed to disclose

that he was personally acquainted with witness Patric Heisser and that he injected this

information into the deliberations. Payne also argued that this new information,

combined with juror 13's recognition of Nicholson, was sufficient to prejudice Nicholson.

Payne supported his motion with a declaration from a defense investigator recounting a

conversation with juror 4. According to the investigators declaration, Juror 4 stated,

"[o]ne of the jurors recognized the witness,'Patric'[Heisser] as someone with whom he

had played basketball" and "[t]he second juror knew 'Terrence'[Nicholson]from high

school" and "remembered 'Terrence'[Nicholson] as a star basketball player."

         The trial court called juror 4 to testify. Before her testimony, the trial court

indicated that with respect to the allegations about juror 13 knowing Nicholson,

        this is not news for any of us, because during the trial juror number 13...
        disclosed that she knew Mr. Nicholson from high school. And my memory
        is that we specifically asked her about that outside the presence of the
        other jurors. She indicated it wouldn't affect her, and we agreed to keep
        her. So I'm not planning on inquiring more into that issue. It was
        explored during trial.

Payne did not object.

        The trial court then proceeded to question juror 4. Juror 4 told the court that at

the end of deliberation, while the jurors were discussing "whether or not we felt [the

witnesses] were trustworthy in what they were saying," two jurors mentioned

recognizing witnesses. According to juror 4,juror 13 said she knew of Nicholson from


         2 According to the investigators declaration, Juror 4 stated, "[o]ne of the jurors recognized the
witness,"Patric" as someone with whom he had played basketball" and "[t]he second juror knew
'Terrence'[Nicholson]from high school" and "remembered 'Terrence'[Nicholson] as a star basketball
player."

                                                   -9-
No. 74028-8-1/10


high school as a "super athlete" as being "this star, up and rising athlete person" and

that Juror 13 said she was "surprised that this would happen to him." Juror 4 then said

another juror "thought he remembered seeing Patric [Heisser] at a basketball game, and

I can't remember if he said Patric [Heisser] was a coach or was somehow involved, but

that that's where he thought he recognized him from." She claimed the juror said

Heisser might have been a basketball coach, and if he was a coach, then he "has to be

somewhat of a trustworthy person, like why would they lie." Juror 4 acknowledged that

the other juror did not say he was sure whether Heisser was a coach. In addition, juror

4 did not recall the juror having mentioned interacting with Heisser at the time. She

confirmed that both jurors stated that they did not think this recognition was playing into

their judgment of the verdict.

       After determining juror 12 was the juror that recognized Heisser, juror 12 was

called to testify. Juror 12 informed the court that he might have recognized one witness,

explaining, "I don't know him. We all grew up in the Central District, so he was younger

than me and I don't know him personally." He explained that he did not know Heisser

as a basketball coach, but only that he may have seen him when he was younger and

playing basketball and that was the only time he remembered seeing him. Juror 12 said

that he mentioned recognizing Heisser while the jurors were discussing the witnesses'

credibility, after juror 13 mentioned recognizing Nicholson. He reaffirmed that

recognizing Heisser did not affect his, or any other jurors, assessment of credibility.

       Payne maintained his motion for anew trial, arguing the two most important

witnesses were recognized by jurors who interjected knowledge about them into



                                          -10-
No. 74028-8-1/11


deliberations. The trial court again declined to consider the question of juror 13

recognizing Nicholson because it had been resolved during trial. Payne did not object.

         The trial court then explained:

         I really don't know how [juror 12] could have acted any differently here ...
         We ask jurors if they recognize any of the witnesses in the sense of
         recognizing their name, or having some acquaintanceship with them.
         Recognizing somebody you think is from your community, it seems to me,
         doesn't fall with the scope of our questions. So, I also am not clear that
         [juror 12]engaged in any misconduct at all by not revealing information
         that we asked him for. I don't know how he could have known that we
         wanted him to tell us if he saw anybody that he might, at some other point
         in his life, have seen but not interacted with in any way at all. The
         additional thing here, too, is I really don't think there is any evidence of
         juror misconduct involving use of extraneous evidence, not based on the
         testimony that [juror 4] gave us here, certainly not based on what [juror 12]
         has had to say here. There is no indication here that [juror 12], for
         example, brought a knowledge that Mr. Heiser or some acquaintanceship
         with him into deliberation and shared that with other jurors, which I agree
         would be definite evidence of misconduct, but we don't have anything like
         that here. We have, at most, it seems to me,[juror 12 and 13] saying,"To
         the extent that we know these people,' and there is only [juror 13] who
         was really sure at all that she knew one of the witnesses, it had no impact
         on their assessment.

RP (July 24, 2015) at 422-23. Further,

         I just don't see that [juror 12] did anything wrong by thinking he recognized
         somebody from something that some event in his community some twenty
         years before this trial and indicated to other jurors that had not played in to
         his assessment of credibility.

 RP (July 24, 2015) at 423.

         After finding that juror 4's testimony was not entirely consistent and that juror 12

to be more credible, the court found Payne had not made a sufficient showing for a new

trial.

         Payne appeals.



                                            -11-
No. 74028-8-1/12


                                        ANALYSIS

                                  Right to Confrontation

       Payne argues first that the trial court's decision to prohibit cross-examination of

Nguyen concerning his pending criminal charge violated Payne's Sixth Amendment

right to confrontation and present a defense. Payne contends that evidence of a

witnesses' bias is always admissible. But here, even if there was error, any error was

harmless because the untainted evidence supports a finding of guilt beyond a

reasonable doubt.

       A trial court's decision to exclude evidence is generally reviewed for abuse of

discretion. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090(2014). But

constitutional issues, such as claimed violations of a defendant's Sixth Amendment right

to present a defense, are reviewed de novo. State v. Jones, 168 Wn.2d 713, 719, 230

P.3d 576 (2010); State v. Strizheus, 163 Wn. App. 820, 829, 262 P.3d 100(2011).

       The Sixth Amendment and due process require an accused be given a

meaningful opportunity to present a complete defense. State v. Cavetano-Jaimes, 190

Wn. App. 286, 295-98, 359 P.3d 919 (2015); U.S. Const. amend. V, VI, XIV; Const. art.

1, §3, §22. In conjunction with the right to present a defense, defendants have the

constitutional right to confront the witnesses against them. State v. Hudlow, 99 Wn.2d

1, 14-15,659 P.2d 514(1983). The primary interest secured by the confrontation

clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct.

1105, 1110, 39 L. Ed. 2d 347 (1974). The defendant's right to impeach a prosecution

witness with evidence of bias "is guaranteed by the constitutional right to confront



                                          -12-
No. 74028-8-1/13


witnesses." State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998); Davis, 415

U.S. at 316-318.3

         In Davis, for example, the State's primary witness was a juvenile on probation.

Davis, 415 U.S. at 318. The trial court denied the defense's request to question the

witness about whether being on probation, or fear of becoming a suspect, may have

motivated him to identify the defendant. Davis, 415 U.S. at 318. The Supreme Court

reversed the conviction and remanded the case, holding, "[t]he accuracy and

truthfulness of[the witness's] testimony were key elements in the State's case against

petitioner" and the trial court's ruling kept defense counsel from effectively arguing "why

[the witness] might have been biased or otherwise lacked that degree of impartiality

expected." Davis, 415 U.S. at 317-18.

        The State argues that we do not need to decide whether the trial court erred in

precluding evidence of Nguyen's pending conviction, because any error was harmless.

We agree. "It is well established that constitutional errors, including violations of a

defendant's rights under the confrontation clause, may be so insignificant as to be

harmless." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182(1985).

        Constitutional error is presumed to be prejudicial and the State has the burden of

proving the error was harmless. Guloy, 104 Wn.2d at 425. A constitutional error is

harmless "if the appellate court is convinced beyond a reasonable doubt that any

reasonable jury would have reached the same result in the absence of the error."

Guloy, 104 Wn.2d at 425. We apply the "overwhelming untainted evidence test,"


         3 Bias refers to "the relationship between a party and a witness which might lead the witness to
slant, unconsciously or otherwise, his testimony in favor of or against a party." United States v. Abel, 469
U.S. 45, 52, 105 S. Ct. 465, 83 L. Ed. 2d 450(1984).

                                                 -13-
No. 74028-8-1/14


meaning we look "only at the untainted evidence to determine if the untainted evidence

is so overwhelming that it necessarily lead to a finding of guilt." Gulov, 104 Wn.2d at

426.

        First, unlike Davis, Nguyen's testimony was not "'a crucial link in the proof... of

petitioner's act." Davis, 415 U.S. at 317 (quoting Douglas v. Alabama, 380 U.S. 415,

417, 85 S. Ct. 1074 13 L. Ed. 2d 934(1965). Nguyen was not the sole link between the

defendant and the crime. Davis, 415 U.S. at 317-18. Nguyen did not witness the

shooting. Nor did he hear Nicholson's three statements to three individuals, including a

police officer, that Payne was the shooter.

        Second, the majority of Nguyen's testimony—that Payne was upset about the

theft of his money, that Payne was present at Ballinger Homes minutes before the

shooting, and that Liddell had left the area prior to the shooting—was cumulative and

corroborated by other witnesses. Nicholson testified that Payne was upset about the

theft and confronted him. A police officer testified that Payne contacted them to report

that Nicholson and another individual were responsible for the theft of his money and

property as was upset about it. Similarly Heisser testified that he had seen Payne

standing outside of Le and Liddell's apartment—where Nicholson was shot.4 Heisser

also confirmed that Liddell had left the area prior to the shooting.

        Finally, it bears repeating that Nicholson testified at trial that Payne was the

shooter, and repeatedly and unequivocally told several witnesses right after the


        4 Payne argues that Heisser was unreliable because he failed to pick Payne out of a photo
montage. But the trial court also studied the photo montage and remarked "Actually, I am having trouble
picking out Mr. Payne from this." The court added "I have to say it would be hard for me to pick out Mr.
Payne, and I have been looking at him a whole lot. The court concluded "I don't see any reason why,
seeing Mr. Payne in the flesh,[Heisser] wouldn't be credible in recognizing him again here in court."

                                                -14-
No. 74028-8-1/15


shooting that he was shot by Payne—a man he knew quite well. Even disregarding

Nguyen's testimony, the untainted evidence still overwhelmingly supports the jury's

finding of guilt.

                                     Evidence of Flight

       Payne next argues the trial court erred in allowing testimony that he was arrested

in California several months after the shooting. Payne alleges that this was prejudicial

evidence of flight. We disagree.

       Trial court decisions on the admission of evidence are reviewed for abuse of

discretion. State v. Perez-Valdez, 172 Wn.2d 808, 814, 265 P.3d 853(2011). "Such

abuse occurs when, considering the purposes of the trial court's discretion, it is

exercised on untenable grounds or for untenable reasons." State v. Clark, 78 Wn. App.

471, 477, 898 P.2d 854 (1995). Evidence of flight is reviewed Pursuant to ER 404(b) as

"other crimes, wrongs, or acts," and is reviewed for abuse of discretion. State v.

Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001). Evidence of flight is admissible

when it creates a reasonable and substantive inference that a defendant's behavior was

a reaction to a consciousness of guilt or was a deliberative effort to evade arrest.

Freeburg, 105 Wn. App. at 497.

       The State argues that Payne waived this issue by not objecting at the time of the

testimony. We agree. Generally, when a party moves pretrial to exclude evidence and

the trial court rules against them,"[u]nless the trial court indicates further objections are

required when making its ruling, its decision is final, and the party losing the motion in




                                           -15-
No. 74028-8-1/16


limine has a standing objection." State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564

(1984).5 However, this rule depends on the nature of the trial court's ruling,

        If the trial court has made a definite, final ruling, on the record, the parties
        should be entitled to rely on that ruling without again raising objections
        during trial. When the trial court refuses to rule, or makes only a tentative
        ruling subject to evidence developed at trial, the parties are under a duty
        to raise the issue at the appropriate time with proper objections at trial.

State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456 (1984), overruled on other

grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588(1988)(emphasis added).

Any error is waived unless the trial court is given an opportunity to reconsider its ruling.

State v. Powell, 126 Wn.2d 244, 257, 893 P.2d 615(1995).

        Here, the trial court's pretrial ruling was tentative, subject to the State presenting

certain evidence at trial. Payne was clearly aware that the ruling was tentative, as

Payne specifically pointed out that the nexus between Payne and Olson had not been

established and asked the court to exclude evidence concerning hotels. Payne did not,

however, ask the court to bar evidence that he was arrested in California, or object to

the admission of the evidence at the time. Payne was required to allow the trial court

the opportunity to revisit its ruling, because Payne failed to do so, the error was not

preserved for appeal and has been waived.

        An issue can be raised that was not properly preserved below if it is a manifest

error affecting a constitutional right. RAP 2.5(a)(3). However, this issue concerns the

allegedly erroneous admission of ER 404(b) evidence and evidentiary error is not of

constitutional magnitude. State v. Powell, 166 Wn.2d 73, 84, 206 P.3d 321 (2009);


       5"The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to
make comments in the presence of the jury which might prejudice his presentation." State v. Evans, 96
Wn.2d 119, 123, 634 P.2d 845(1981).

                                                 -16-
No. 74028-8-1/17


State v. Everybodvtalksabout, 145 Wn.2d 456, 468-69, 39 P.3d 294(2002).

Nonconstitutional error in admitting ER 404(b) evidence requires reversal only if it is

reasonably probable that the error materially affected the trial's outcome.

Everybodytalksabout, 145 Wn.2d at 468-69.

       Here, even if the court erred by not striking the testimony on its own motion, the

error was harmless. The admission of evidence is harmless if that "evidence is of minor

significance in reference to the overall, overwhelming evidence as a whole." State v.

Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120(1997). Detective Bartlett's testimony

that Payne was arrested in California was the only evidence presented to the jury that

could reasonably be considered "flight evidence" covered by Payne's pretrial motion.

Neither party pursued this evidence, nor did the State argue that this fact created the

inference that Payne fled to California after the crime. Given the overwhelming

evidence that Payne shot Nicholson, the testimony that Payne was arrested in

California, if erroneous, was harmless.

                                Potential Juror Misconduct

       Payne next argues that the trial court abused its discretion in denying his motion

for a new trial based on potential misconduct by jurors 12 and 13. We disagree.

A.     Waiver

       The State argues that Payne waived any claims to misconduct by juror 13

because Payne did not request further questioning of juror 13 during trial. We disagree.

       While Payne's motion for a retrial was instigated by the information received after

trial, that "juror 12 failed to disclose to the Court that he was personally acquainted with

Patric Heisser," Payne also argued that juror 12's misconduct was "additionally

                                          -17-
No. 74028-8-1/18


compounded" by juror 13's knowledge of Nicholson. Payne specifically cited State v.

Johnson, and argued the court must consider the "'combined effects' of juror's actions

and the prejudice that may ensue from related instances of misconduct." 137 Wn. App.

862, 869, 155 P.3d 183(2007); Clerk's Papers(CP)at 66-67. RAP 2.5 exists to "afford

the trial court an opportunity to rule correctly on a matter before it can be presented on

appeal." State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013). The trial court

here clearly interpreted Payne's motion to include the issue of juror 13's recognition of

Nicholson. The court declined to do so. Payne is making essentially the same

argument on appeal, that the two jurors actions combined demonstrate misconduct

requiring a retrial.

B.     The Trial Court did not Abuse its Discretion

       The decision whether juror misconduct occurred and whether it affected the

verdict are matters for the discretion of the trial court and will not be reversed on appeal

absent an abuse of discretion. Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197,

203, 75 P.3d 944 (2003). "A trial court only abuses its discretion when its decision is

manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons."

Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 271, 796 P.2d 737(1990). "A

party who asserts juror misconduct bears the burden of showing it occurred." State v.

Kell, 101 Wn. App. 619, 621, 5 P.3d 47(2000). "A strong, affirmative showing of

misconduct is necessary in order to overcome the policy favoring stable and certain

verdicts and the secret, frank, and free discussion of evidence by the jury." State v.

Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994).



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        "While great deference is due the trial court's determination that no prejudice

occurred, greater deference is owed a decision to grant a new trial than a decision not

to grant a new trial." State v. Briggs, 55 Wn. App. 44, 60, 776 P.2d 1347(1989). "The

test to determine whether the verdict may be impeached and a new trial warranted is

first whether the alleged information actually constituted misconduct and, if misconduct

did occur, whether it affected the verdict." Richards, 59 Wn. App. at 270. "The injection

of information by a juror to fellow jurors, which is outside the recorded evidence of the

trial and not subject to the protections and limitations of open court proceedings,

constitutes juror misconduct." Richards, 59 Wn. App. at 270. Once the court finds

misconduct, the court must make an objective inquiry into whether the extraneous

evidence could have affected the jury's determination. Briggs, 55 Wn. App. at 55. "Any

doubt that the misconduct affected the verdict must be resolved against the verdict."

Richards, 59 Wn. App. at 273. "[A] new trial must be granted unless it can be

concluded 'beyond a reasonable doubt that extrinsic evidence did not contribute to the

verdict." United States v. Bagley, 641 F.2d 1235, 1242 (9th Cir.1981)(quoting Gibson

v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980)).

        Payne contends that jurors 12 and 13 both failed to disclose information during

voir dire, constituting misconduct. Payne does not argue that the failure to disclose

alone was sufficient to demonstrate reversible misconduct.6 Instead, Payne argues that

their nondisclosure is reversible error because they withheld material information and


        6 To obtain a new trial based on juror nondisclosure, a party must show that the juror failed to
honestly answer a material question during voir dire and that a truthful disclosure would have provided a
basis for a challenge for cause. State v. Cho, 108 Wn. App. 315, 321, 30 P.3d 496(2001). A juror's
acquaintance with a party, by itself, is not grounds for a challenge for cause. See State v. Tim:Wale, 117
Wn.2d 595, 601, 817 P.2d 850(1991).

                                                 -19-
No. 74028-8-1/20


then later injected that information into deliberations. Thus, this court "must inquire into

the prejudicial effect of the combined, as well as the individual, aspects of the juror's

misconduct." See Briggs, 55 Wn. App. at 53.

        In this case, the trial court acknowledged, and the State reiterated on appeal, that

most of the facts presented by juror 4 and juror 12 inhered to the verdict.7 The only

reviewable facts that could go to misconduct are that juror 13 might have stated that

Nicholson was a star athlete in high school and that juror 12 may have seen Heisser in

the community, possibly related to basketball.

        Payne points to several cases in which the appellate court remanded for a new

trial after finding juror misconduct. See Allyn v. Boe, 87 Wn. App. 722, 730-31, 943

P.2d 364 (1997); Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 158, 776 P.2d 676

(1989), Allison v. Dep't of Labor & Indus., 66 Wn.2d 263, 265, 401 P.2d 982(1965).8

The common theme in these cases is that the juror failed to disclose bias to the court,

often intentionally, and then injected that bias into the deliberations. In this case, the

record does not present any evidence that either juror falsely stated that they did not

recognize the witness, or injected bias into deliberations.




         7 In considering an allegation of juror misconduct based on the injection of novel extrinsic
evidence, the first question is whether the facts alleged "inhere in the verdict"; a question of law we review
de novo. Long v. Brusco Tug & Barge, Inc., 185 Wn.2d 127, 131, 368 P.3d 478(2016). Only once the
court concludes that juror declarations allege facts constituting misconduct, rather than matters inhering
in the verdict, does it proceed to decide the effect the misconduct, if any, could have had upon the jury.
Lonq, 185 Wn.2d at 132.
         8 In Boe, the court held that a new trial was necessary because a juror failed to inform the court
about her bias against an expert witness, then attacked that witness's credibility during deliberations.
Boe, 87 Wn. App. at 730-31. Similarly, in Robinson, the court held that a juror's failure to disclose his
bias against California residents constituted juror misconduct because the plaintiff was from California.
Robinson, 113 Wn.2d at 154. Finally, in Allison, the court granted a new trial because the juror falsely
stated that he could be fair and impartial. Allison, 66 Wn.2d at 265.

                                                  -20-
No. 74028-8-1/21


       The record indicates that Juror 13 only recognized Nicholson when he began

testifying, and she realized she had gone to the same high school. There is no

evidence that she knew Nicholson personally, only by reputation. Juror 13 decided to

inform the court of this connection at the time and said that she could still be impartial.

Knowing this, the defense chose not to further question juror 13 regarding her

disclosure, and agreed to retain her on the panel. While there is no evidence that juror

13 told the court that she had heard of Nicholson, this was an easily foreseeable

possibility given that she had attended the same school. Juror 13's disclosure gave the

parties an indication of her life experience and the knowledge she would bring to jury

deliberations.

       Juror 13 also did not insert extrinsic evidence. During deliberations, Juror 13

referred to Nicholson as a "star" and a "super athlete." Neither of these statements

indicate bias, or constitutes new or novel extrinsic evidence. At trial, Nicholson testified

that he played basketball in high school, and continued playing for a college team. A

player on a high school team that goes on to play college basketball would presumably

be an accomplished athlete and could reasonably be well-known throughout the school.

       Juror 12 also did not falsely withhold information when he failed to inform the trial

court that he had recognized Heisser. The trial court instructed the jurors to inform the

court "if you spot someone that you know when they come in to testify,"9 and juror 12

testified that he had never known or interacted with Heisser. Juror 12 stated only that

he may have seen Heisser once or twice in the community of Central District. Such



      9 Emphasis added.


                                          -21-
No. 74028-8-1/22


limited contact is not "knowing" a witness, and would likely not have caused juror 12 to

assume he needed to notify the court.

       Juror 12 also did not inject extrinsic evidence into the deliberations. Juror 4

testified that juror 12 might have said if Heisser had been a coach he would probably be

trustworthy. Juror 12, on the other hand, specifically testified that he had not

recognized Heisser as a coach. The trial court found that juror 4's testimony was

inconsistent and unreliable compared to juror 12. Determinations of credibility are

within the discretion of the trial court, and we defer to the trier of fact in matters of

credibility. Juror 12 telling the other jurors he may have seen Heisser in the Central

District as a youth was not novel extrinsic evidence, as Heisser testified directly that he

grew up in Seattle's Central District.

       The trial court did not abuse its discretion in denying Payne's motion for retrial

based on jury misconduct.

                                       Cumulative Error

       Payne's final argument is that the accumulation of the errors affected the

outcome in his case. Under the cumulative error doctrine, a defendant may be entitled

to a new trial when cumulative errors produce a trial that is fundamentally unfair. In re

Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994). Cumulative error

may warrant reversal, even if each error standing alone would otherwise be considered

harmless. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390(2000). "The doctrine does

not apply where the errors are few and have little or no effect on the outcome of the

trial." State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006).



                                            -22-
No. 74028-8-1/23


       As discussed above, the only error Payne might have successfully alleged is the

trial court's error in not permitting Payne to cross-examine Nguyen on his potential bias,

and we already found that to be harmless error. Payne has not demonstrated any other

errors. The cumulative error doctrine does not apply in this case.

       We affirm.




WE CONCUR:




                                                                                  LC)
                                                                                  ='"




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