                                                                  :LEO
                                                         COURT OF APPEALS DIV I
                                                          STATE OF WASHINGTON

                                                          2018 APR 23 An 8:31


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
                                               No. 75963-9-1
                    Respondent,
                                               DIVISION ONE

                                               UNPUBLISHED OPINION
TRAYVON R. CAIL,                        )
                                        )
                    Appellant.          )      FILED: April 23, 2018


       TRICKEY, J. — The trial court convicted Trayvon Cail of first degree

attempted murder, first degree murder, and first degree robbery, all while armed

with a firearm. On appeal, Cail argues that the trial court erroneously excluded

evidence of his lack of consciousness of guilt and that the prosecutor committed

misconduct. Finding no error, we affirm.

                                     FACTS

       Jermaine Smith and David Fashaw were both shot in the head in an

attempted robbery that occurred during a drug transaction. Fashaw died at the

scene. Smith survived and provided the police with information that eventually led

to Cail's arrest.

       Cail was arrested in Los Angeles, California.       King County Sheriffs

Department Detectives John Pavlovich and Eleanor Broggi interviewed Cail at the

offices of the Los Angeles Police Department Robbery Homicide Division. During
No. 75963-9-1 /2

the interview, Cail believed that the detectives wanted to talk with him about an

unrelated drug crime.

       The State charged Cail with first degree attempted murder, first degree

murder, and first degree robbery, all with firearm enhancements, based on the

Smith and Fashaw shooting. Cail waived his right to a jury and his case proceeded

to a bench trial.

       Cail sought to introduce statements from his interview with Detectives

Pavlovich and Broggi that demonstrated his belief that the interview pertained to

an unrelated drug crime. He argued that his statements indicated his state of mind.

The trial court denied this request because Gail's state of mind at the time of the

police interview was not at issue in the case.

       During trial, the issue arose whether Cail was right- or left-handed.

According to Smith, the shooter was right-handed. Cail initially told Detective

Pavlovich that he was left-handed. The State attempted to prove that Cail was

right-handed.

       The State introduced a handwritten letter that Cail had written while in jail.

The letter was to a person named Alicia Wilson. The State then asked Cail to write

the name for a handwriting comparison. Cail began writing with his left hand and

then switched to his right hand. Cail testified that he was ambidextrous.

       The State asked Cail whether he had used his right hand to write the letter

from jail, to which Cail replied that he did not know which hand he had used. The

State then pointed out that the handwriting in the letter and the name written in




                                         2
No. 75963-9-1 / 3

court looked different, "like a second grader versus an adult."1 Cail acknowledged

that the writing looked different. The State suggested that the difference in the

writing was due to the fact that Cail was not left-handed. Cail did not object to this

line of questioning.

         The State also referred to a diagram that Cail had drawn to show that Cail

was pretending to be left-handed.      At the beginning of his testimony, Cail was

directed to draw a diagram of the Los Angeles neighborhood in which he was

raised. Later, the State referred to this drawing as "sad" while attempting to

establish that Cail was right-handed.2

         The State noted that Cail would benefit from convincing the trial court that

he was left-handed, and then asked, "And that's why you used your left hand to

draw this kind of sad diagram up here; right?"3 Cail objected to the form of the

question and the trial court sustained the objection and told the State to rephrase

without using "sad."4 Cail answered that the writing in the diagram and the jail

letter looked the same, to which the State replied, "[w]e'll let the Judge decide

that."5 Cail made no further objections to this line of questioning.

         Also during the trial, the State made several additional remarks about the

trier of fact's role in interpreting the evidence. In response to questions about the

contents of a jail telephone call, Cail testified that he was talking to his brother

about a basketball game, not speaking in code about a witness in the case. Cail



1   Report of Proceedings(RP)(June 28, 2016) at 1635.
2 RP (June 28, 2016) at 1636.
3 RP (June 28, 2016) at 1636.
4   RP (June 28, 2016) at 1636.
5   RP (June 28, 2016) at 1637.
                                          3
No. 75963-9-1 /4

said, "Mou're interpreting it wrong."6 The State responded,"Ma let the Trier of

Fact interpret it wrong then."7 Cail objected and the trial court sustained the

objection.8 In the same line of questions, the State reiterated, "I guess that's for

the Trier of Fact to determine."6 Once again, Gail objected and the trial court

sustained the objection.

       After several days of testimony, the trial court found that Gail's testimony

was not credible and that the testimony of the State's witnesses was credible. Call

was convicted as charged.

       Gail appeals.

                                     ANALYSIS

                                    ER 803(a)(3)

       Gail claims the trial court erred by excluding evidence that he believed that

his arrest pertained to his involvement in an unrelated drug crime, rather than the

shooting. Specifically, Call argues that this evidence demonstrated his lack of

consciousness of guilt at the time of his interview with Detectives Pavlovich and

Broggi. The State objected to this evidence as self-serving hearsay. Because

Gail's state of mind at the time of his interview was not at issue in the case, we

conclude that the trial court did not err in excluding this evidence.

       "'Hearsay' is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted," and is not admissible except as provided by the evidentiary rules or


6 RP (June 28, 2016) at 1711-12.
7 RP (June 28, 2016) at 1712.
8 RP (June 28, 2016) at 1712.
9 RP (June 28, 2016) at 1714.


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No. 75963-9-1/ 5

statutes. ER 801(c); ER 802. "A statement of the declarant's then existing state

of mind" is admissible as an exception to the general hearsay rule. ER 803(a)(3).

"[Then' in the term 'then-existing' refers to the time the statement was made, not

the earlier time the statement describes." State v. Sanchez-Guillen, 135 Wn. App.

636, 646, 145 P.3d 406 (2006). While statements offered as circumstantial

evidence of the declarant's state of mind are not hearsay, they must be relevant to

be admissible. State v. Stubsjoen, 48 Wn. App. 139, 146, 738 P.2d 306 (1987).

       A trial court's decision on the admissibility of evidence is reviewed for abuse

of discretion. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705(2014). "A trial court

abuses its discretion when its decision 'is manifestly unreasonable or based upon

untenable grounds or reasons." Dobbs, 180 Wn.2d at 10(quoting State v. Powell,

126 Wn.2d 244, 258, 893 P.2d 615(1995)).

       Here, Cail sought to introduce his initial statements from his interview with

Detectives Pavlovich and Broggi as state-of-mind evidence to show a lack of

consciousness of guilt. He claims that his mistaken belief that his arrest was for

an unrelated drug crime demonstrated his ignorance of the shooting and,

therefore, his innocence.

       Cail acknowledges that his statements to Detectives Pavlovich and Broggi

were a "then-existing" belief at the time of the interview, rather than at the time of

the shooting." Cail's state of mind at the time of his arrest was not an issue in the

case. Whether Cail believed he was being questioned about an unrelated drug

crime or the shooting has no bearing on his state of mind at the time of the



'° Opening Br. of Appellant at 17.
                                          5
No. 75963-9-1/6

shooting. The relevant state of mind was when the shooting occurred, not during

a subsequent interview. See Stubsioen, 48 Wn. App. at 146.

        As a result, Call's interview statements about an unrelated drug crime were

not relevant and, therefore, not admissible." A defendant's right to due process

does not require admission of irrelevant evidence. State v. Jones, 168 Wn.2d 713,

720,230 P.3d 576(2010). Therefore, we conclude that the trial court did not abuse

its discretion by excluding this evidence.

                               Prosecutorial Misconduct

        Cail argues that the prosecutor committed misconduct during the bench

trial. Specifically, Cail claims that the prosecutor improperly testified to evidence

outside the record when she said that Cail had written the jail letter with his right

hand and was clearly not left-handed. Cail also contends that the prosecutor made

several improper remarks about the role of the trier of fact. We concluded that Cail

has not established that the prosecutor's conduct was improper or ill-intentioned.

        To prevail on a claim of prosecutorial misconduct,the defendant must prove

that the prosecutor's comments were improper and prejudicial. State v. Yates, 161

Wn.2d 714,774, 168 P.3d 359(2007). "Any allegedly improper statements should

be viewed within the context of the prosecutor's entire argument, the issues in the

case, the evidence discussed in the argument, and the jury instructions." State v.

Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432(2003).


"We also note that during trial Cail testified that he did not know about the shooting until
the investigators arrested him. Cail's testimony pertains to the same evidence, that Cail
had no knowledge of the shooting at the time of his interview. Therefore, any error in
excluding the evidence of Gail's state of mind at the time of the interview would not have
materially affected the outcome of the trial and was harmless. See State v. Gresham, 173
Wn.2d 405, 433, 269 P.3d 207(2012).
                                             6
No. 75963-9-1 /7

       Failure to object to a prosecuting attorney's improper remark constitutes a

waiver of the error unless the remark is so flagrant and ill-intentioned that the

resulting prejudice could not have been neutralized by a curative instruction. State

v. Elmore, 139 Wn.2d 250, 292, 985 P.2d 289 (1999). Absent evidence to the

contrary, we presume that the judge in a bench trial does not consider improper

matters or inadmissible evidence in rendering a verdict. In re Det. of H.N., 188

Wn. App. 744, 765, 355 P.3d 294 (2015), review denied, 185 Wn.2d 1005, 366

P.3d 1244(2016).

       Cail objected to the prosecutor's reference to the "sad" diagram and

statements concerning the role of the trier of fact. The trial court sustained the

objections. Cail has not shown that the judge in this bench trial considered these

improper statements after sustaining his objections to them. See In re Det. of H.N.,

188 Wn. App. at 765. Therefore, Cail cannot demonstrate that the prosecutor's

remarks had a prejudicial effect on the outcome of the trial.

       Cail did not object to the State's line of questions about the jail letter and

whether he wrote with his left or right hand. Due to this lack of objection, Cail must

show that the prosecutor's statements were flagrant and ill-intentioned. See

Elmore, 139 Wn.2d at 292. Cail makes no argument that the prosecutor's attempts

to show that Cail was actually right-handed rose to this level. We find no

prosecutorial misconduct.

                                     Credibility

       Cail assigns error to the trial court's finding of fact 26 and conclusion of law

4 that his testimony was not credible and that the State's witnesses were credible.


                                          7
No. 75963-9-1 /8

Although he assigns error, Call does not raise legal arguments pertaining to this

assignment of error in his opening brief. An appellate court will not consider a

claim of error that a party fails to support with legal arguments in its opening brief.

See State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193(1990). Furthermore,

credibility determinations are matters for the trier of fact and will not be reviewed

on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). As a

result, we decline to reach the merits of this claim.

       Affirmed.




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WE CONCUR:




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