 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                      ]
                                                 No. 68971-1-1
                     Respondent,
                                                 DIVISION ONE
             v.                           t
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                                                 UNPUBLISHED OPINION                    —'.cr
KELSEY MARIE JOHNSON,                     \                                     -c-




                                                                                        lr^:       ''
                     Defendant,           ]
                                                                                 CD


             and                                                                 •?,*   — '•!
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                                                                                 3       LT"'
                                                                                         Hi.'
KEITH THOMAS BLAIR,                                                              CD



                    Appellant.            i      FILED: March 10,2014




      Grosse, J. — When, as here, the State's witness made a single vague

reference to another investigation in violation of the court's order in limine to

exclude evidence of other crimes, and the defendant fails to show that there was

a substantial likelihood that this testimony affected the verdict in light of ample

other evidence of guilt, the trial court did not abuse its discretion by denying a

motion for a mistrial. Accordingly, we affirm.

                                      FACTS

      The State charged Keith Blair with several counts of residential burglary

involving multiple victims, one count of attempted residential burglary, two counts

of theft of a firearm, and one count of taking a motor vehicle. The charges arose

out of a series of burglaries that occurred in Seattle and surrounding areas in

King County between July and October of 2010.
No. 68971-1-1/2


          On July 25, 2010, the home of Joseph Saldin was burglarized and his car,

a silver Porsche, was stolen. Also stolen were a safe, jewelry, shotgun, cigars,

and watches.       A neighbor saw someone with a limp walk up a hill in the

neighborhood and then drive down the hill in the silver Porsche a short time later.

The Porsche was later found crashed and abandoned.

          On August 6, 2010, the home of Pamela LaCount was burglarized. A safe

containing $30,000 was stolen, along with jewelry, an Xbox system, a laptop

computer, walkie talkies, a Rolex watch, and a shotgun. On August 31, 2010,

the home of Patrick Paveglio was burglarized. Tools and a lawn mower were

stolen.

          On September 14, 2010, the home of Tammy Bodmer was burglarized. A

bike was stolen, along with five laptop computers, jewelry, watches, silver coins,

and an external hard drive.       On September 15, 2010, the home of Jeffrey

Chrisope was burglarized. Keys, horse-themed jewelry, motorcycle riding gear, a

large television, global positioning system units, an Xbox system, computer

hardware and software, and a red car was stolen. Chrisope found his wife's red

car several days later, not far from the house. On that same day, the home of

Tony Marti was burglarized.        Marti's bedroom windows were broken and a

kitchen window was removed.

          On September 18, 2010, the home of Angela Parvanta was burglarized.

Jewelry boxes, jewelry, watches, three computers, and four martial arts swords
were stolen. Parvanta found a ladder propped up against the house leading to a

balcony.       On September 23, 2010, the home of Robinson Walden was
No. 68971-1-1/3


burglarized. Jewelry, watches, a laptop computer, headphones, and speakers

were stolen.


       On September 26, 2010, there was an attempted burglary at the home of

Elizabeth Dolliver and Philip Thompson. Dolliver came home and found a man

with a light gray jacket and a backpack descending a ladder that was propped up

against her house. When she confronted him, he fled. Thompson chased him

on foot.   A neighbor, Travis Testerman, saw a man walking briskly near the

Dolliver residence with a backpack. He saw the man cut through a neighbor's

yard, emerge without the backpack, and get picked up by someone driving a

black sedan. Testerman, who was an off duty Seattle police officer, followed the

car and gave the 911 operator a partial license plate number. Testerman then

went back and found the discarded backpack, which was later found to contain a

gray jacket, gloves, and small crowbar.      Testerman identified Blair from a

photomontage.

       On September 27, 2010, the home of Gary Rollins and Patrick Murray was

burglarized.   Items stolen included a pistol, a laptop computer, dehydrated

camping food, a suitcase, a backpack, a coin collection, watches, and jewelry.

Rollins found his ladder leaning up against his bedroom window and the screen

had been cut out. A neighbor saw a suspicious person on the side of the home

around midnight, talking on a cellular phone, and limping toward the street with a

backpack. A black four door car drove up and the man said, "Turn off the lights."
The lights then turned off and the man loaded a backpack and suitcase into the

car.
No. 68971-1-1/4


       King County Detectives Matthew Voipe and Cary Coblantz investigated

the burglaries.   Voipe sought to recover some gold that was stolen in the

burglaries by contacting Ryan Youngberg, a person who advertised on Craigslist

as a buyer of gold. Youngberg set up a meeting with Voipe and Kelsey Johnson,

who was Blair's girlfriend.

       On September 28, 2010, Voipe met with Johnson, who arrived in a black

Kia. Voipe identified himself as a detective and asked to speak with her. After

Johnson provided information to Voipe about the burglaries, Voipe seized the Kia

and obtained a search warrant to look for stolen property inside the car. The

license plate number on the car closely resembled the partial one which was

reported from the car seen at the Dolliver burglary. The car had been rented by

Aaron Knapp, a friend of Blair.

       On October 4, 2010, Voipe searched the car and found various items

stolen during the burglaries of the homes of Rollins, Parvanta, and Chrisope. He

also found paperwork from the Employment Security Department with Blair's

name on it, a receipt from a clothing store with Blair's name on it, and a receipt

for a Travelodge motel room rented to Aaron Knapp.

       On October 11, 2010, the home of James and Mary Lee was burglarized.

Passports, credit cards, social security cards, and other documents were taken

from a safe. Cameras, laptop computers, jewelry, and a data projector were also

stolen. Lee found an open can of Dr. Pepper soda on a dresser and a tool that

did not belong to her family on the floor next to the safe. DNA (deoxyribonucleic

acid) recovered from the soda can matched Blair's DNA profile.
No. 68971-1-1/5


      On October 21, 2010, based on           information he received from a

Snohomish County detective, Voipe went to an Everett motel where he hoped to

contact Johnson and Blair. Johnson and Blair arrived at the motel in a Mercedes

that belonged to Johnson. Voipe obtained a search warrant for the Mercedes

and searched the car. He found coins, dehydrated food, jewelry, and other items

stolen in the burglaries. He also found a receipt for payment on a storage unit in

Lynnwood. Voipe arrested Blair and Johnson.

       On November 2 or 3, 2010, Voipe investigated the Lynnwood storage unit

but found it mostly empty except for a boat motor, a black bag, and some

speakers. Voipe was then contacted by Johnson, who offered to disclose what

she knew about the burglaries. Johnson told him she had been to the Lynnwood

storage unit with Blair and had seen much of the stolen property in that unit. She

also told him that the property had been moved to a different storage unit in

Monroe, which had been rented by Blair's wife Rachel Dunham.              Volpe's

investigation corroborated this information. On November 5, Voipe obtained a

search warrant for the Monroe unit and after searching its contents, found a large

quantity of stolen property.

       Johnson continued to contact Voipe and provide information about the

burglaries.   She also showed Voipe and Coblantz the houses that Blair

burglarized and gave them specific information about the crimes that

corroborated the victims' reports. Johnson agreed to testify against Blair and

plead guilty to two counts of second degree possession of stolen property in

exchange for the State's dismissal of the counts of first degree trafficking in
No. 68971-1-1/6


stolen property and first degree possession of stolen property with which she was

originally charged.

       The State proceeded to trial on Blair's case on several counts of

residential burglary, two counts of theft of a firearm, and one count of taking a

motor vehicle.    An additional count of money laundering was severed and

prosecuted in a separate trial. The trial court ruled in limine to exclude evidence

relating to other criminal activity for which Blair was being investigated or

charged. Blair also moved to suppress evidence of calls he made from the jail to

his wife about the stolen property.     In these calls, he asked her where the

property was being kept and to sell it. The trial court denied the motion.

       At trial, Youngberg testified that he bought gold from Blair "[bjefore this

whole thing happened when [he] was called into questioning," and that he was

first contacted about Blair by the Bellevue Police Department. Blair moved for a

mistrial, arguing that this testimony violated the motion in limine. The trial court

denied the motion.

       Johnson testified that she met Blair in August 2010. Blair was driving a

silver Porsche, which she heard was stolen and was later crashed by his friend

and abandoned. Johnson testified that Blair had an injured foot and sometimes

walked with a limp. She said he had paid off her traffic tickets and paid to help

her regain possession of her car. As a result and because she liked him, she felt
"obligated" to help Blair by driving him to and from the houses he burglarized.
She then testified about each of the burglaries with which Blair was charged.
No. 68971-1-1/7


       The jury acquitted Blair of one count of theft of a firearm and found him

guilty of the lesser included offense of first degree criminal trespass on one of the

counts of residential burglary.    The jury found him guilty as charged on the

remaining counts.      The trial court imposed an exceptional sentence of 186

months based on the "free crimes" aggravator. Blair appeals.

                                      ANALYSIS

       1.   Motion for Mistrial

       Blair moved in limine to exclude evidence of other crimes that had been

prosecuted in a different King County case or that were pending in Snohomish

County. The State responded that it was not seeking to admit any ER 404(b)

evidence but did note that it would be calling Youngberg, who was also a witness

in the prior King County case. As the prosecutor explained:

       The only thing that - as I'm hearing counsel talk about - is one of
       the witnesses the State does intend to call is Ryan Youngberg, who
       is somebody that posted on Craigslist -- excuse me, he bought
       some gold from Kelsey Johnson. And the only reason -

Defense counsel then interrupted and stated, "They can introduce that. That's

not part of this other case." The prosecutor continued, stating:

       I know that he was also a witness in that case. And so there might
       be some cross-over in that sense, but I will not be talking about any
       specifics at all about any of the other burglaries either pending in
       Snohomish County or already charged here. I'm only limiting the
       defendant to these counts.

The trial court granted the motion.

       At trial, Youngberg testified that he bought gold and advertised on

Craiglist. He testified that he "ran into a situation" that made him realize he
needed to be checking identifications (IDs) and writing receipts when dealing with
No. 68971-1-1/8


sellers. When the prosecutor asked what that situation was, he responded, "It

was when the Keith Blair incident happened. I don't know the exact date." The

prosecutor then asked when he learned he needed to take these precautions and

engaged in the following exchange occured:

      A.      Oh, from the time that I brought in - was brought in for
      questioning, I learned from there on I needed to be taking IDs and
      writing receipts.
      Q.      Did you buy gold from Keith Blair then?
      A.      Before, yes. Before this whole thing happened when I was
      called in for questioning, yes, I did.

Youngberg then identified Blair in court and the prosecutor continued:

       Q.   So when you talk about that you were questioned, is that
       when you came in contact with Detective Voipe from the King
       County Sheriffs Office?
       A.    It was the Bellevue Police Department was the first time that
       I was contacted.
       Q.     All right. I want to focus on Detective Voipe --
       A.     On who?
       Q.     Detective Voipe.

Defense counsel then called for a sidebar.

       Blair moved for a mistrial, arguing that Youngberg's testimony violated the

court's ruling in limine. Blair asserted that when Youngberg testified about an

investigation by the Bellevue Police Department involving buying gold from Blair,

he was referring to the other King County case that was already tried and subject

to the court's ruling in limine.    Youngberg testified at that trial, which was a

trafficking charge involving Blair's illegal sale of gold to Youngberg.

The trial court denied the mistrial motion, stating:

       It is - I don't think there is any question. It is prejudicial. The only
       question is whether it is so prejudicial that the defendant won't be
       able to have a fair trial with these particular jurors.
              It is just one question. Admittedly it wasn't blurted out by the

                                           8
No. 68971-1-1/9


      witness. It was actually asked by the prosecutor. That's a whole
       other issue.
            There is no curative instruction. I agree. I don't think there is
      a curative instruction that we can give without calling attention to
      the whole issue. The real question is how serious it is. I guess I'm
      debating that.
             On the one hand, I think it is egregious because it is in
      violation of the motion in limine and talks about another case. I
       don't think the jurors are going to be fooled for one minute thinking
       it was a legitimate business deal, the defendant selling gold to Mr.
      Youngberg.
           On the other hand, as the State has pointed out, there is,
       apparently, some jail tapes where the defendant is talking to his
       wife about gold and telling his wife to sell gold. And the defendant's
       girlfriend, who he has been living with, is selling gold to Mr.
       Youngberg.
              So I don't know if it is really that much of a leap for the jurors
       to believe that the defendant was involved in selling gold. I'm not
       sure that they are savvy enough to figure out which police
       department -     which police officers worked at King County,
       Bellevue, Seattle, whatever.
              I'm going to deny the motion for mistrial, somewhat
       reluctantly.

       Blair contends that a mistrial was warranted because the violation of the

motion in limine amounted to prosecutorial misconduct and was also a serious

trial irregularity. We disagree. A trial court will a grant a mistrial "'only when the

defendant has been so prejudiced that nothing short of a new trial can insure that

the defendant will be tried fairly.'"1 Because the trial judge is in the best position
to determine the impact of a potentially prejudicial remark, we review a trial

court's decision to grant or deny a mistrial for an abuse of discretion.2
       To prevail on a claim of prosecutorial misconduct, the defendant must

show "'that the prosecutor's conduct was both improper and prejudicial in the



1 State v. Rodriguez. 146 Wn.2d 260, 270, 45 P.3d 541 (2002) (quoting State v.
Kwan Fai Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)).
2 State v. Escalona. 49 Wn. App. 251, 254-55, 742 P.2d 190 (1987).
No. 68971-1-1/10


context of the entire record and the circumstances at trial.'"3       Prosecutorial

misconduct is prejudicial when there is a substantial likelihood that the

misconduct affected the jury's verdict.4 The State does not appear to contend
that the prosecutor's conduct was proper, as the briefing focuses only on the

prejudice prong of the analysis. Indeed, as the trial court concluded, by eliciting

testimony that referred to charges that were within the scope of the court's order

in limine, the prosecutor's conduct was improper. But viewed in context of the

entire record, Blair fails to show that this testimony was so prejudicial that there

was a substantial likelihood it affected the jury's verdict.

       First, while a reasonable inference from this testimony is that Blair was

involved in selling stolen gold, the testimony itself was vague and did not

specifically refer to the other charges. Youngberg's reference to the Bellevue

Police Department was preceded by his reference to "the Keith Blair incident,"

which everyone understood was the charged conduct in this case. Thus, the

jurors could have reasonably inferred that he was talking about the current

charges. Additionally, as the State points out, the charged crimes occurred in

several different municipalities throughout King County, including Seattle,

Shoreline, Lake Forest Park, Medina, Kirkland, Bothell, and Kenmore, and the

detectives testified about contracts the King County Sheriff's Office had with

some of the municipalities to provide law enforcement services. Thus, as the trial

court concluded, the jury could have reasonably inferred that there were


3 State v. Thoraerson. 172 Wn.2d 438, 442-43, 258 P.3d 43 (2011) (internal
quotation marks omitted) (quoting State v. Maqers, 164 Wn.2d 174, 191, 189
P.3d 126 (2008)).
4 Thorqerson. 172 Wn.2d at 442-43.
                                           10
No. 68971-1-1/11


connections between the different law enforcement agencies and that the

investigation by the Bellevue Police Department was part of the current case.

      Additionally, unlike the cases cited by Blair where the admission of prior

bad acts may have led jurors to convict based on propensity given the lack of

other credible evidence,5 here, it is unlikely that this single vague reference to a

Bellevue investigation would affect the verdict, given the additional ample

evidence of guilt.     The State's case was based on eyewitness testimony.

Johnson gave details that were corroborated by the victims and other witnesses,

witnesses identified Blair and the vehicles he used, and victims identified stolen

property that was found in those vehicles. Stolen property was also found in the

motel room Blair occupied and in the storage unit his wife rented; Blair's DNA

was found at one scene, and Blair called his wife from jail about the stolen

property. Blair fails to establish that the prosecutor's conduct was so prejudicial

to warrant reversal.

       Nor can he establish that Youngberg's testimony amounts to a serious trial

irregularity requiring a mistrial. "An irregularity in trial proceedings is grounds for

reversal when it is so prejudicial that it deprives the defendant of a fair trial."6 To
determine whether a trial irregularity deprived a defendant of a fair trial, a

reviewing court considers the following factors: "(1) the seriousness of the

irregularity, (2) whether the statement in question was cumulative of other

evidence properly admitted, and (3) whether the irregularity could be cured by an

instruction to disregard the remark, an instruction which a jury is presumed to


5 See Escalona, 49 Wn. App. at 254-55.
6 State v. Condon. 72 Wn. App. 638, 647, 865 P.2d 521 (1993).
                                          11
No. 68971-1-1/12


follow."7   We review claims of prejudice "against the backdrop of all the

evidence."8

       While a violation of an order in limine is considered a serious trial

irregularity, not all violations of orders in limine have been held to be so serious

as to deprive the defendant of a fair trial.9 In Condon, the State's witness twice
testified that the defendant had been in jail despite an order in limine excluding

such evidence, but the court held that while the remarks had the potential for

prejudice, they were not so serious to warrant a mistrial.10 The court noted that
the reference to being in jail was ambiguous and did not necessarily indicate a

propensity to commit the crime charged, nor did it necessarily mean that the

defendant had been convicted of a crime.11         The court also noted that the

curative instruction alleviated any resulting prejudice, and that unlike in Escalona.

it was not a "close case," as the evidence against Condon was strong.12
       Viewed in context and against the backdrop of all the evidence,

Youngberg's remark was likewise not so serious as to deprive Blair of a fair trial.
While no curative instruction was given (although it was offered), as discussed

above, the remark was sufficiently vague about which incident he was describing.

At most, the jury could infer he was involved in selling stolen gold, but this was

not the crime with which he was charged in this case. Thus, as in Condon, the


7 Escalona. 49 Wn. App. at 254.
8 Escalona. 49 Wn. App. at 254.
9 See State v. Thompson. 90 Wn. App. 41, 46-47, 950 P.2d 977 (1998) (remark
"was sufficiently serious because it violated a motion in limine," but "not so
egregious as to deny ... a fair trial"); Condon. 72 Wn. App. at 649-50.
10 72 Wn. App. 638, 648-50, 865 P.2d 521 (1994).
11 Condon. 72 Wn. App. at 649.
12 Condon. 72 Wn. App. at 650, n.2.
                                         12
No. 68971-1-1/13


improper remark was ambiguous enough that it did not necessarily suggest a

propensity to commit the crime charged. Additionally, as discussed above, this

was not a "close case," as in Escalona. given the additional amount of credible

evidence of guilt.

       Blair's reliance on State v. Trickier13 is misplaced. That case did not

involve a motion for a mistrial or a violation of an order in limine to exclude

prejudicial evidence.       Rather, this was a reversal of the trial court's ruling

admitting evidence of other pieces of stolen property in the defendant's

possession when the defendant was only charged with possession of a stolen

credit card.    Unable to discern whether the trial court balanced the probative

value against its prejudicial impact, the court held that the evidence was more

prejudicial than probative because it allowed the jury to consider evidence of the

defendant's possession of "a plethora of other allegedly stolen items" as the

State's proof that he must have also known the credit card was stolen and was

therefore impermissible propensity evidence.14 But unlike in Trickier, where the
trial court failed to consider the obvious prejudicial impact of evidence that the

defendant possessed several stolen items for which he was not charged, here,

the trial court considered the prejudicial effect of an isolated vague reference to

Blair's involvement in other possible criminal activity that was not the same crime

with which he was charged in the current case. As discussed above, the trial

court did not abuse its discretion in determining that it was not so prejudicial as to

deprive Blair of a fair trial.


13 106 Wn. App. 727, 25 P.3d 445 (2001).
14 Trickier. 106 Wn. App. at 734.
                                           13
No. 68971-1-1/14


      2.   Validity of Search Warrant

       Blair challenges the validity of the search warrant for the Monroe storage

unit, contending that the affidavit in support of the search warrant did not

establish "timely probable cause" to search the unit.        Blair asserts that the

information that contraband would be found in the place to be searched was stale

because his wife rented the Monroe unit on September 13, 2010, but the warrant

for it was not presented and executed until November 5, 2010. We disagree.

       Probable cause for a search warrant must be timely.15 "The facts set forth
in the affidavit must support the conclusion that the evidence is probably at the

premises to be searched at the time the warrant is issued."16 Areviewing court
evaluates an affidavit "in a commonsense manner, rather than hypertechnically,

and any doubts are resolved in favor of the warrant."17 Our courts have
recognized that "some time passes between the officer's or informant's
observations of criminal activity and the presentation of the affidavit to the

magistrate," but "[t]he magistrate must decide whether the passage of time is so
prolonged that it is no longer probable that a search will reveal criminal activity or
evidence, i.e., that the information is stale."18
       Factors to consider in assessing staleness include "the time between the

known criminal activity and the nature and scope of the suspected activity."19
Two separate statements of time have been found to be important in determining


15 State v. Lyons. 174 Wn.2d 354, 357, 275 P.3d 314 (2012).
16 Lyons. 174 Wn.2d at 360.
17 State v. Jackson. 150 Wn.2d 251, 265, 76 P.3d 217 (2003).
18 Lyons, 174 Wn.2d at 360-61.
19 Lyons, 174 Wn.2d at 361.
                                           14
No. 68971-1-1/15


staleness: "(1) when the affiant received the tip and (2) when the informant

observed the criminal activity."20     A magistrate cannot determine whether
observations recited in the affidavit are stale unless the magistrate knows the

date of those observations.21      But "[a]n affidavit lacking the timing of the

necessary observations might still be sufficient ifthe magistrate can infer recency

from other facts and circumstances in the affidavit."22

       Here, the affidavit for the search warrant for the Monroe storage unit

states in relevant part:

       On 11/3/10 at 2020 hrs Det. Grose and I went to the King County
       Jail and arranged to have Johnson brought to an interview room. . .
       . I asked her where the property was from the burglaries. She told
       me that she last saw it at a storage unit in Lynnwood that was
       registered in the name of Blair's brother's girlfriend, a name she
       didn't know. She said that she last saw some valuable swords and
       the rest of the coins that were stolen in the Shoreline burglary. She
       said that there was a lot of property filling the unit in luggage that
       she knew to be stolen. She confirmed that she saw a boat motor in
       the unit. She thought Blair had the only key for the unit, but said
       that he told Rachel Dunham to move the property after he got
       arrested. She said that she heard Blair arguing with his wife on one
       occasion because she had moved his property out of the storage
       unit into another unit in Monroe. Johnson said that Dunham was
       upset that Blair was with Johnson. Dunham told Blair that she
       would tell him where the unit was if he came home to her. Johnson
       said that Blair did not know where this storage unit was, but only
       knew it was a small private business in Monroe. Johnson was
       confident that all the property stolen in the burglaries was moved
       from the Lynnwood unit to the unit in Monroe. She confirmed that
       Dunham was very aware of all the crimes that Blair was committing
       and that she had a methamphetamine habit so she needed money
       to support it. Johnson agreed to show me the storage unit in
       Lynnwood.

       We all looked into the unit from the top and confirmed it was just as


20 Lyons, 174Wn.2d at 361.
21 Lyons. 174 Wn.2d at 361.
22 Lyons. 174 Wn.2d at 361-62.
                                         15
No. 68971-1-1/16


      I saw it the previous day. Johnson confirmed that the storage unit
      was mostly cleaned out.


      On 11/5/10 Det. Coblantz and I checked the 5 storage facilities in
      Monroe WA. The only one that we found that had a storage unit in
      the name of Rachel Dunham was at Calico Discount Mini Storage,
      17101 147 ST SE, County of Snohomish, Monroe, Washington.
      We spoke with employee Renee Gese and she provided the rental
      agreement stating that on 9/13/10 Rachel Dunham rented unit 18.
      Dunham provided her driver's license, address and Social Security
      Number in order to rent the unit. Gese gave us the access code
      and told us where Dunham's storage unit was. Det. Coblantz and I
      located the storage unit and confirmed it is still locked and secure.
      Det. Coblantz is currently at the unit maintaining the integrity of the
      scene until I can apply for a warrant.

      Blair contends that the information in the affidavit was stale because

several weeks passed from the time his wife rented the Monroe storage unit on

September 13, 2010, and the date of the warrant, November 5, 2010. But this is

not the correct time frame for determining staleness. As discussed above, the

relevant times are (1) when the affiant received the tip and (2) when the

informant observed the criminal activity.23 Thus, the correct time frame would be
from when Johnson received and provided the information to the detectives to

when the search warrant was obtained.

      The affidavit states that Johnson provided this information to detectives on

November 3, just two days before the search warrant was obtained. It also

states that she told the detectives that the last time she saw the stolen property

in the Lynnwood unit was after the Shoreline burglaries, stating that she saw
"some valuable swords and the rest of the coins that were stolen in the Shoreline

burglary."   The affidavit refers to Shoreline burglaries that occurred on

23 Lyons. 174 Wn.2d at 361.
                                        16
No. 68971-1-1/17


September 18, 2010 (victim Parvanta) and September 26, 2010 (victims Dolliver

and Thompson).     The affidavit also refers to another Shoreline burglary that

occurred "the night before I seized the vehicle from Johnson," where "valuable

coins" were stolen.   September 28, 2010 is listed in the affidavit as the date

Johnson's vehicle was seized.


      That affidavit also states that Johnson told detectives that Blair told his

wife to move the property after he was arrested. The affidavit states that Blair

was arrested on October 21, 2010, and he and Johnson were booked into the

King County jail "where they have remained." The affidavit also states that that

the unit was last accessed on October 30 and that the detectives confirmed that

the Lynnwood unit was mostly empty, on November 3, except for a few items.

      The warrant was obtained November 5, 2010. Thus, it was served two

days after the detectives received the information, and, at most, a week or two

after Blair asked his wife to move the items to the Monroe unit; indeed the

Lynnwood unit had been accessed just six days before the warrant was obtained

and was not completely empty just one day before.24 Thus, the court could
reasonably infer that some of the stolen property had been moved less than a

week before the warrant was sought and was likely to be found in the Monroe

unit. Blair fails to show that this relatively short passage of time renders probable

cause for the warrant stale. Additionally, the warrant was not seeking a small


24 While Blair asserts that the arrest referred to was an earlier arrest in
September, there was no specific reference to this arrest in the affidavit. Thus, a
magistrate could have reasonably interpreted this to refer to the October 21
arrest. In any event, as set forth above, additional facts in the affidavit support
the inference that items were still being moved to the Monroe storage unit as late
as October 30, just a few days before the warrant was issued.
                                         17
No. 68971-1-1/18


number of items, but evidence of home burglaries committed over several

months that were not likely to be consumed or destroyed.

      3.    Evidence of Calls from the Jail

      Blair next challenges the admission of evidence of calls he made from the

jail to his wife about storing, moving, and selling the stolen property.          He

contends their admission was a violation of the privacy act, RCW 9.73.030(1),

because the calls were protected by the marital privilege. We disagree.

      The     privacy   act   prohibits   intercepting   or   recording   a   private

communication transmitted by telephone unless all parties consent.25               A
communication is private when the parties have a subjective expectation that it is

private, and that expectation is objectively reasonable.26 Washington courts
have repeatedly held that inmates have no objectively reasonable expectation of

privacy in telephone calls from a local jail.27 This is because inmates have
reduced expectation of privacy, further diminished by warnings that telephone

calls are recorded and may be monitored.28
       In Modica. our State Supreme Court held that a jail inmate had no

reasonable expectation of privacy in telephone calls he made from the jail to his

grandmother when both the defendant and his grandmother knew they were

being recorded and that someone might listen to those calls.29 The jail had a
sign posted on the wall above where the calls were made warning that calls

25 RCW 9.73.030(1).
26 State v. Christensen. 153 Wn.2d 186, 193, 102 P.3d 789 (2004).
27 State v. Hall. 168 Wn.2d 726, 729 n.1, 230 P.3d 1048 (2010); State v. Modica.
164 Wn.2d 83, 88, 186 P.3d 1062 (2008).
28 Modica. 164 Wn.2d at 88.
29164Wn.2dat88.
                                          18
No. 68971-1-1/19


would be recorded and monitored, both parties had to listen to an automated

recording of this warning, and the parties discussed the fact that their calls were

being recorded.30     The court concluded that given these facts, "[w]hatever

expectation of privacy they had, it was not reasonable."31
        But the court did caution that "we have not held, and do not hold today,

that a conversation is not private simply because the participants know it will or

might be recorded or intercepted."32 The court then recognized that intercepting
or recording telephone calls violates the privacy act except under narrow

circumstances and that the court will "generally presume that conversations

between two parties are intended to be private."33 But the court ultimately
concluded that the defendant had no reasonable expectation of privacy "because

Modica was in jail, because of the need for jail security, and because Modica's
calls were not to his lawyer or otherwise privileged."34 The court also noted that
"such facts may also be relevant to the issue of implied consent," but did not find
it necessary to reach the issue of whether the parties impliedly consented to
have their conversations recorded.35

        Blair contends that because his calls to his wife were subject to the marital

privilege, he did not lack a reasonable expectation of privacy under Modica
because this was a call that was "otherwise privileged," and should therefore be

presumed private. We disagree. As the State argues, Blair has failed to

30   Modica.   164 Wn.2d   at 88.
31   Modica.   164 Wn.2d   at 88.
32   Modica.   164 Wn.2d   at 88.
33   Modica.   164 Wn.2d   at 89.
34   Modica.   164 Wn.2d   at 89.
35   Modica.   164 Wn.2d   at 89 n.1, 90.
                                            19
No. 68971-1-1/20


establish a marital privilege because engaging in conversation in the presence of

others vitiates a privilege.   The State cites case law holding that the marital

privilege did not apply to letters from jail to wife from husband when the husband

knew all outgoing mail was read byjail personnel.36 Similarly, no privilege should

apply to telephone calls made from jail between spouses who know the calls are

being recorded, as was the case here.

       As the State further contends, because Blair and his wife consented to the

recording, they waived their spousal privilege and any violation of their privacy.

The State cites State v. Archie, which held that telephone calls from jail are not

"private affairs" protected by article I, section 7 of the Washington State

Constitution.37   There, the court concluded that a jail inmate "expressly

consented to recording when she pressed or dialed three to continue the call

after the recorded warning" and therefore the recording did not violate article I,

section 7.38 Similarly here, Blair and his wife consented to the recordings by

proceeding with the calls after being warned they would be recorded and

monitored.

       Additionally, while Modica left open the issue of implied consent, the

opinion did note that facts such as those in Modica "may also be relevant to the

issue of implied consent."39 The facts here are similar to those in Modica: Blair
was in jail, there was a need for jail security, and as discussed above, the calls



36 State v. Smyth. 7 Wn. App. 50, 53, 499 P.2d 63 (1972).
37 148 Wn. App. 198, 204, 199 P.3d 1005 (2009).
38
  Archie. 148 Wn. App. at 204.
39164Wn.2dat89n.1.


                                        20
No. 68971-1-1/21


were not otherwise privileged.      Blair fails to show that the trial court erred by

admitting evidence of the jail calls.

Statement of Additional Grounds

        Finally, Blair raises a number of issues in a pro se statement of additional

grounds for relief, none of which have merit. He asserts claims of prosecutorial

misconduct and an invalid search warrant that have already been addressed by

appellate counsel and further contends that the trial judge committed misconduct

by denying the mistrial and approving the search warrant. As discussed above,

these claims lack merit.      Blair also contends that the detective's access to

personal information about the renter of the Monroe storage unit violated the right

to privacy, that the search warrant affidavit contained false information, that the

prosecutor committed misconduct by asking leading questions, that his attorney's

failure to challenge the search warrant deprived him of effective assistance of

counsel, and that the trial court improperly excused a juror for hardship without

counsel present.

        None of these claims have merit. Blair was not the renter of the Monroe

storage unit whose alleged private information was given to police and therefore

lacks standing to assert a privacy violation. He also fails to support his claim of

false information in the affidavit and show that it was material and deliberately

falsified.   Additionally, he fails to show the alleged prosecutorial misconduct

resulted in prejudice warranting reversal or that counsel's failure to raise every

challenge to the search warrant at the trial level resulted in prejudice as such
challenges may be raised for the first time on appeal. Finally, he fails to show


                                          21
No. 68971-1-1/22


how he was prejudiced when the court allegedly improperly excused the juror for

hardship.

      We affirm.




                                            V35Wy^-r—^
WE CONCUR:




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