                                                         FILED
                                                                  DWI
                                                 COURT OF APPEALS
                                                           WASHINGTON
                                                  STATE OF

                                                  2018 OCT 22 MI 8: 29


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON                     )       No. 76005-0-1
                                        )
                                        )       DIVISION ONE
                    Respondent,         )
                                        )       UNPUBLISHED OPINION
             v.                         )
                                        )
JASON LEE GAMACHE,                      )
                                        )
                    Appellant.          )       FILED: October 22, 2018
                                        )

       BECKER, J. — Jason Gamache was convicted of felony murder. The
evidence showed that he broke into the home of a sleeping neighbor and

stabbed him to death in the course of stealing his pain medication. We affirm.

                                     FACTS

       On the morning of August 2, 2013, Wayne McCune's wife left their home

around 7:00 a.m. to go to work. When she returned around 6:00 p.m., she found

McCune lying dead on the floor. McCune had been stabbed 25 times and his

carotid artery was severed. The file cabinet drawer where McCune kept his pain

medication had been forced open. Two pill bottles, containing hydrocodone-

acetaminophen and Avinza, were found empty.

      Auburn police interviewed McCune's neighbor, Ruby Jo Brazeal. She told

them Jason Gamache had been staying with her, but she had not seen him since

the day of McCune's death. Gamache, Brazeal, and McCune all suffered from

chronic health conditions, and regularly took prescription pain medication. In the
 No. 76005-0-1/2

'past, McCune and Gamache had shared medications. They had a falling out in

2012 when Gamache tried to take some of McCune's pain medication without

 permission. Since that time, the two had not had any contact.

        The police pieced together Gamache's whereabouts on the day of

 McCune's death. Gamache met Brazeal at the nearby Muckleshoot Casino just

 before 9:00 a.m. He told her he was leaving to pick up pain medication from the

 pharmacy. Surveillance video showed Gamache leaving the casino at 9:01 a.m.

 and returning at 10:35 a.m. When he returned, he was wearing different clothes.

 Gamache then offered Brazeal roughly 15 hydrocodone-acetaminophen pills and

 a pill bottle containing granules from an Avinza capsule. Gamache remained at

the casino until 5:30 p.m. that day.

        After leaving the Muckleshoot Casino, Gamache traveled to the

 Snoqualmie Casino. Surveillance video showed that Gamache largely remained

 in his vehicle,in the casino parking lot over the next five days, until he

 approached a shuttle bus driver complaining of pain and dizziness. An

 ambulance took him to a nearby hospital where Gamache told a doctor that he

 had been mugged. After being treated for dehydration, Gamache left the hospital

 and walked back to his vehicle at the Snoqualmie Casino. Officers located him

 there on August 7 and arrested him.

        In Gamache's vehicle, officers found a single Avinza tablet and a rag

 containing what appeared to be blood. Blood on the rag was consistent with

 McCune's DNA (deoxyribonucleic acid). A blood stain found on Gamache's shoe




                                           2
No. 76005-0-1/3

was also consistent with McCune's DNA. The shirt Gamache was wearing when

he left the Muckleshoot Casino on the morning of the murder was never located.

       Gamache initially denied that he had left the Muckleshoot Casino for an

hour and a half that morning. Informed that the casino surveillance video

contradicted his statement, Gamache changed his story and told police that he

left to go to a nearby secondhand store. The store's video surveillance did not

show Gamache at the store. Gamache gave conflicting statements to the police

about the clothes he was wearing on the day of the murder and his whereabouts

in the five days following the murder.

      The State charged Gamache with felony murder in the first degree

predicated on both second degree robbery and attempted second degree

robbery. After a four week trial, the jury convicted Gamache as charged. He

was sentenced to 280 months.

                           Sufficiency of the Evidence

       Gamache's first challenge is to the sufficiency of the evidence supporting

felony murder. "The test for determining the sufficiency of the evidence is

whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found guilt beyond a reasonable doubt." State v.

Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). "'When the sufficiency of the

evidence is challenged in a criminal case, all reasonable inferences from the

evidence must be drawn in favor of the State and interpreted most strongly

against the defendant." Kintz, 169 Wn.2d at 551, quoting State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). Although Gamache contested the


                                         3
No. 76005-0-1/4

State's evidence at trial, the presence of conflicting evidence does not mean the

guilty verdict was not supported by sufficient evidence. Reviewing courts "defer

to the trier of fact on issues of conflicting testimony, credibility of witnesses, and

the persuasiveness of the evidence." State v. Killinqsworth, 166 Wn. App. 283,

287, 269 P.3d 1064, review denied, 174 Wn.2d 1007, 278 P.3d 1112(2012).

       To convict Gamache of felony murder, the State had to establish that

Gamache killed McCune "in the course of or in furtherance" of a predicate felony,

or "in immediate flight therefrom." RCW 9A.32.030(1)(c)(5). The homicide must

be within the "res gestae" of the predicate felony, i.e., "there was a close

proximity in terms of time and distance between the felony and the homicide."

State v. Leech, 114 Wn.2d 700, 706, 790 P.2d 160 (1990). Moreover, the State

must prove "that the death was a probable consequence of the felony and must

specifically prove that the felony began before the killing." State v. Wang,

Wn. App._,424 P.3d 1251, 1257(2018), quoting State v. Irbv, 187 Wn. App.

183, 201, 347 P.3d 1103(2015), review denied, 184 Wn.2d 1036, 379 P.3d 953

(2016).

       Gamache argues that any connection between him, McCune's death, and

the robbery of McCune's pills was purely speculative, and therefore the State

could not show that McCune's death was a consequence of the robbery.

Gamache disregards the extensive evidence—circumstantial, but not

speculative—that he forcibly took McCune's pills and McCune died in the course

of the robbery. The drawer holding McCune's medication was found pried open,

while the rest of McCune's home appeared to be left undisturbed. Gamache


                                           4
No. 76005-0-1/5

knew where McCune kept his medication. Gamache knew he was not welcome

in McCune's home. Gamache had no reason to enter McCune's home other

than to obtain McCune's pain medication.

       Two bottles of pills were empty, and on the day of McCune's murder,

Gamache provided Brazeal with pills matching those missing from McCune's

home. When questioned by police, Gamache repeatedly lied about his

whereabouts on August 2. Gamache also lied about the shirt he was wearing

when he left the casino.

       Gamache had blood matching McCune's DNA profile on his shoes and on

a rag in his car. At trial, the State's forensic scientist testified the blood "matches

the DNA profile of Wayne McCune. The estimated probability of selecting an

unrelated individual at random from the United States population with a matching

profile is 1 in 260,000." The State's forensic scientist stated that "the DNA typing

profile obtained from the bloodstains on the right shoe was consistent with

coming from a male individual, and matches the DNA profile of Wayne McCune.

And the estimated probability of selecting an unrelated individual at random from

the United States population with a matching profile is 1 in 850 quadrillion." DNA

found on McCune's empty hydrocodone-acetaminophen bottle was also

consistent with a mixture of McCune's and Gamache's DNA. It was "230 times

more likely that the observed DNA profile occurred as a result of a mixture of

Wayne McCune and Jason Gamache than if it originated from Wayne McCune

and an unrelated individual selected at random from the United States

population."


                                           5
No. 76005-0-1/6

       We conclude there was sufficient proof that Gamache killed McCune in

the course of robbing him.

       The court allowed the jury to consider attempted robbery as well as

robbery as the predicate for felony murder. Gamache argued that the evidence

was insufficient to support a finding of attempted robbery because there was no

way the jury could find that he fatally stabbed McCune with the intent to steal his

pills, yet failed to complete the theft of the pills. Gamache contends the jury may

not have been unanimous as to the means by which he was guilty of felony

murder, and reversal is the required result. See State v. Lambert, 199 Wn. App.

51, 78, 395 P.3d 1080, review denied, 189 Wn.2d 1017,404 P.3d 499(2017)

(reversing felony murder conviction due to insufficient evidence to support the

alternative means of the predicate burglary).

       It does not appear that an attempt is an alternative means of committing

the completed crime. An attempt to commit a crime is defined as an offense

included in the crime itself. RCW 10.61.010. In any event, the evidence was

sufficient to prove Gamache either attempted a robbery or completed a robbery.

Contrary to Gamache's claim, there is no authority holding that a conviction for

attempt can be sustained only if the crime is not completed. Rather, to prove an

attempt, the State must simply show that the defendant acted with the intent to

carry out a crime and took a substantial step towards the completion of that

crime. RCW 9A.28.020. As discussed above, the State presented substantial

evidence from which a juror could infer that Gamache took the substantial step of

entering McCune's home with the intent to take his pain medications. A


                                         6
No. 76005-0-1/7

reasonable juror could have found that Gamache at least tried to rob Wayne of

pills and killed him in the course of that attempt, even if the juror lacked certainty

that Gamache actually had McCune's pills with him when he left the house.

       Viewing the evidence in the light most favorable to the State, we conclude

it was sufficient to prove that Gamache caused McCune's death in the course of

robbing or attempting to rob him.

                             Detective Lind's Testimony

       Gamache contends he was prejudiced by the admission of evidence

regarding the 2012 incident in which he tried to take McCune's pain pills without

permission. A pretrial hearing was held to determine the admissibility of the

evidence. Auburn Detective David Lind testified that on January 9, 2012,some

18 months before the murder, he was dispatched to respond to a call from

McCune. Lind said McCune told him that Gamache came into his home while

McCune was sleeping and attempted to take his pain medication. According to

Lind, McCune said he and Gamache had similar back problems and had a

history of sharing medication. McCune told Lind that he did not wish to press

criminal charges, but he wanted Gamache to know he was no longer welcome on

his property. Lind testified that he then went across the street to speak to

Gamache. Gamache admitted that he had tried to take some pills when he found

McCune asleep and realized, when McCune woke up, that he had probably

crossed a line. Lind said Gamache was apologetic. The incident ended with Lind

informing Gamache that he was not welcome in McCune's home, and Gamache

confirming that he understood.
No. 76005-0-1/8

       After hearing Lind's testimony about Gamache's prior act, the trial court

ruled it was admissible to show that Gamache knew where McCune kept his pills

and knew McCune did not want Gamache in his house.

       And I'm satisfied the relevance of that is basically four things. One is that
       they shared medication. Secondly, from the statements of Mr. Gamache
       basically that Mr. McCune was asleep and it probably wasn't wise to take
       the pills. It goes to show that he knew where the pills were kept by Mr.
       McCune. Third, that there was a disagreement or complaint and that,
       fourth, as a result of that, the officer basically trespassed Mr. Gamache
       from the McCune residence.

       At trial, Lind's testimony about his communications with McCune was kept

to a minimum. At the start of Lind's direct examination, the prosecutor

specifically requested that Lind not get into the specifics. Lind testified that

McCune discussed a dispute he was having with Gamache over pain medication.

"I was told basically that it was a neighbor dispute and that Wayne wanted to try

and keep things civil amongst neighbors. And rather than going down a road of

prosecution and potentially jail, he wanted to try and keep things friendly and

decided that it would be more civil in nature than criminal." Gamache did not

object. Lind moved on to testify about what Gamache said: that he found

McCune sleeping, that he went to get a pill out of      cabinet, that McCune woke

up and was surprised, and that he now understood, as a result of the officer's

visit, that whatever agreement he and McCune had as neighbors "was now over

and that he no longer wanted him at his residence."

       In closing, the prosecutor emphasized that the testimony was offered to

show Gamache's knowledge:

       The Defendant knows where Wayne McCune keeps his drugs. He knows
       what drugs Wayne McCune has.

                                          8
No. 76005-0-1/9


             And that's exactly why that testimony from Officer Lind regarding
      that January 2012 incident, why that's important. When Officer Lind goes
      and talks to him, he admits -- he, being Mr. Gamache, admits that he
      knew where Wayne kept his drugs. He knew what type of drugs he kept,
      that he shared at times. He knew how to let himself in the home to access
      those.

       Gamache contends admitting Lind's testimony was error because the jury

was able to use it as propensity evidence, the prejudice of the testimony

outweighed its probative value, and there was no limiting instruction. He also

contends Lind's testimony contained hearsay and a portion of it violated the

confrontation clause.

Propensity

       Under ER 404(b), "evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." This court reviews the trial court's ruling to

admit or exclude 404(b) evidence for an abuse of discretion. State v. Fisher, 165

Wn.2d 727, 745, 202 P.3d 937(2009). We find no abuse of discretion in the

admission of Lind's testimony as proof that Gamache knew where the pills were

and knew that McCune was unwilling to share them with him.

       A trial court may exclude relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice. ER 403. This

balancing of the probative value of a prior act versus its prejudicial effect should

be done on the record. State v. Jackson, 102 Wn.2d 689, 693,689 P.2d 76


                                          9
No. 76005-0-1/10

(1984). The absence of a record may preclude effective appellate review.

"Moreover, a judge who carefully records his reasons for admitting evidence of

• prior crimes is less likely to err, because the process of weighing the evidence

and stating specific reasons for a decision insures a thoughtful consideration of

the issue." Jackson, 102 Wn.2d at 694. Gamache contends admitting the

evidence of his prior encounter with McCune was reversible error because the

court did not conduct an express on-the-record balancing.

       Failure to balance probative value versus prejudice on the record "requires

reversal only if the error, within reasonable probability, materially affected the

outcome of the trial." State v. Halstien, 122 Wn.2d 109, 126-27, 857 P.2d 270

(1993). If the record as a whole is sufficient to permit meaningful review, a

reviewing court may affirm the introduction of ER 404(b) testimony. State v.

Donald, 68 Wn. App. 543, 547, 844 P.2d 447, review denied, 121 Wn.2d 1024,

854 P.2d 1084 (1993).

       Evidence of Gamache's prior attempt to take McCune's pills was highly

probative. McCune's murderer pried open the cabinet where McCune kept his

medication, while leaving other items of value untouched. The trial court

correctly identified the relevant purpose for admitting evidence of Gamache's

earlier confrontation with McCune. It established that Gamache knew the pills

were kept in McCune's cabinet and that he did not have permission to be in

McCune's home. The parties argued about whether the evidence was more

probative than prejudicial. The court instructed the State not to refer to the act as

a "theft", and the overall tenor of the hearing demonstrates the court's awareness


                                         10
No. 76005-0-1/11

of the obligation to balance probative value against prejudice even if the court did

not use those specific words. The manner in which the prior act was presented

emphasized its relevance for this proper purpose.

       To the extent the court erred in being less explicit than our case law

requires, the error did not materially affect the outcome of the trial. The record as

a whole is sufficient to permit meaningful review, and we conclude the court did

not abuse its discretion in admitting evidence of the previous pill-taking incident

under ER 404(b).

No Limiting Instruction

       Gamache contends the trial court should have given a limiting instruction

when Lind testified. Trial courts are not required to provide a limiting instruction

sua sponte. State v. Russell, 171 Wn.2d 118, 124, 249 P.3d 604 (2011).

Defense counsel stated,"We don't have a limiting instruction in mind at this

moment, but we'll think about that ... ." The defense did not offer a limiting

instruction. Because Garnache did not request a limiting instruction, the trial

court did not err by failing to give one.

Hearsay

       In the pretrial hearing, the trial court recognized that Detective Lind's

testimony about his conversation with McCune during the prior incident would be

hearsay to the extent that he quoted what McCune said. But because the

significant information about the confrontation would come in through the non-

hearsay statements Gamache made to Lind, the court concluded there would be

no hearsay problem:


                                            11
No. 76005-0-1/12

             [DEFENSE COUNSEL]: Your Honor, with respect to the hearsay, I
       would ask that when the officer goes to describe his contact with Mr.
       McCune that it be simply limited to,"We got a complaint from Mr.
       McCune," because anything else would just be --

              THE COURT: Well, he basically contacted Mr. McCune and I think
      everything else is going to come out through the statements and the
      conversation he had with Mr. Gamache. So, but clearly Mr. McCune's
      statements to the officer are hearsay. The fact that he went there,
      received a complaint, and talked to the Defendant, and that the Defendant
      confirmed a lot of the things that I -- or all of the things, I think, that I've
      just indicated I'm finding relevant. It should be fairly brief, I would think.

       By failing to object to the minimal amount of hearsay the officer included in

his recounting of what McCune said, Gamache waived the hearsay issue. Even

were that not the case, the admission of hearsay is subject to harmless error

analysis. State v. Watt, 160 Wn.2d 626, 630, 160 P.3d 640 (2007). Gamache

does not identify any meaningful prejudice resulting from Lind's brief discussion

of his conversation with McCune.

Confrontation Clause

       Gamache contends the admission of Lind's testimony about what McCune

said violated the Confrontation Clause because he could not cross-examine

McCune about the January 2012 incident. The confrontation clause "bars

admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination." State v. Koslowski, 166 Wn.2d 409,417,

209 P.3d 479(2009)(internal quotation marks omitted), quoting Davis v.

Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)).

      Because Gamache did not raise an objection based on the confrontation

clause, the alleged error is not preserved for review. State v. O'Cain, 169 Wn.

                                        12
No. 76005-0-1/13

App. 228, 232, 279 P.3d 926 (2012). In addition, any error was harmless. See

Watt, 160 Wn.2d at 635.

                                 Purpose of Arrest

       Gamache claims the court erred by allowing the State to present an

officer's testimony that Gamache was arrested on August 7 for "another matter."

Although he classifies this as prosecutorial misconduct, it is properly

characterized as another ER 404(b) issue.

       In the wake of McCune's murder on August 2, 2013, Brazeal's husband

realized his rifle was missing. Because Gamache was staying with the Brazeals,

he became the prime suspect in the rifle's disappearance. The police issued an

arrest bulletin for Gamache. When he was arrested at the Snoqualmie Casino

on August 7, it was for theft of the rifle, not for murder. Ultimately, Gamache was

not charged with stealing the rifle.

       At trial, the parties grappled with how to describe the reason for

Gamache's arrest. The evidence implicating him in the murder was largely

undeveloped at the time of the arrest. The State was concerned that the jurors

might think police improperly arrested Gamache based on a mere suspicion of

murder if it was not explained that police had probable cause to arrest him for

stealing a firearm. Gamache countered that testimony about an allegation of a

stolen firearm was evidence of a prior bad act and inadmissible because it was

irrelevant to the charge of murder. The trial court excluded mention of the

firearm as more prejudicial than probative. The court ruled that instead, the jury




                                         13
No. 76005-0-1/14

should simply be informed that the police arrested Gamache based on a bulletin

about an unrelated crime.

       Gamache objected that a vague reference to an arrest on a matter

unrelated to the murder could lead the jury to speculate that he had been

involved in another serious crime in addition to the murder. The trial court

dismissed this concern as unrealistic:

      THE COURT: I think both the State and the defense are anticipating
      problems with the jury deliberation that aren't realistic. It is quite common,
      for example, when somebody's arrested for a warrant and then it leads to
      something, that the officers testify, we arrested him on something
      unrelated to this. And that's exactly what happened.

      The officer who arrested Gamache at the Snoqualmie Casino testified that

he did so as the result of a "be on the lookout" bulletin from the Auburn Police

Department. The bulletin indicated that Gamache was "a person of interest in a

homicide" and "that there was probable cause to arrest him on a separate

matter."

       We conclude the trial court was within its discretion to permit this

testimony about the basis of the arrest. Investigation of the murder went on for

another month before Gamache was charged. Part of the defense strategy at

trial was to call into question the competence of the investigators. The State was

legitimately concerned that if jurors were not informed there was a basis for the

arrest other than suspicion that Gamache was involved in the murder, they would

assume the Auburn police were "cowboys" who had arrested Gamache before

they had developed probable cause.




                                         14
No. 76005-0-1/15

       Evidence is admissible under ER 404(b)to show the "res gestae" of a

crime if it provides context for the jury to understand the sequence of events

surrounding the crime. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929(1995).

Under this exception to ER 404(b), a party may complete the picture of the story

of the crime rather than having the jury receive a fragmented account. State v.

Tharp, 27 Wn. App. 198, 204-05, 616 P.2d 693(1980), aff'd, 96 Wn.2d 591,637

P.2d 961 (1981). The admission of testimony that Gamache was arrested on

"another matter" was not an abuse of discretion.

                                  Expert Testimony

       Gamache argues that the State committed misconduct by leading an

expert witness down a line of questioning aimed at improperly bolstering the

expert's credibility.

       The alleged misconduct occurred during the testimony of an associate

medical examiner, Michelle Lubin. Lubin's initial estimate placed McCune's

death in early afternoon. But Lubin testified that she could not rule out that

McCune died during the 9:00 a.m. to 10:35 a.m. window when Gamache was

unaccounted for. The prosecutor followed up by asking Lubin if her opinion was

in line with medical literature and the policies and practices of her office:

       Q. Okay. And, then, everything that you've discussed regarding that
       window, last seen alive, when he's found dead, and sort of all the caveats
       of the post mortem indicators, is that in line with the reputable, medical
       literature that you're familiar with?
       A. Yes.
       Q. Is that in line with the practice of your colleagues at the King County
       Medical Examiner's Office?
       A. Yes, it is.
       Q. Meaning the other Associate Medical Examiners?
       A. Yes.

                                          15
No. 76005-0-1/16

       Q. And is that view and opinion in line with the practice and policies of the
       Chief Medical Examiner, Dr. Harruff?
       A. Yes, it is.

Gamache contends Lubin gave improper opinion testimony. Because he did not

object at the time, there is not a ruling by the trial court to which error can be

assigned. Instead Gamache claims the prosecutor committed misconduct by

eliciting the allegedly improper testimony.

       The burden rests on the defendant to show conduct by a prosecutor was

both improper and prejudicial. Fisher, 165 Wn.2d at 747. Once proved,

prosecutorial misconduct is grounds for reversal when there is a substantial

likelihood the improper conduct affected the jury. Defense counsel's failure to

object to the misconduct at trial constitutes waiver on appeal unless the

misconduct is so flagrant and ill-intentioned that it evinces an enduring and

resulting prejudice incurable by a jury instruction. Fisher, 165 Wn.2d at 747.

       The State may not use the hearsay statement of a third party to vouch for

its witness. State v. Nation, 110 Wn. App. 651, 662,41 P.3d 1204(2002), review

denied, 148 Wn.2d 1001,60 P.3d 1212(2003). Citing this rule, Gamache

contends the prosecutor improperly elicited Lubin's testimony that the Chief

Medical Examiner, Dr. Harruff, agreed with her opinion about McCune's time of

death. The gist of the elicited testimony was that Lubin's analysis was "in line"

with the practices and policies of her office. Although the final question included

an unfortunate reference to Dr. Harruff's "opinion", it did not indicate that he had

reviewed and approved Lubin's analysis in this case. And because an instruction




                                          16
No. 76005-0-1/17

to the jury to disregard the remark could have cured any potential prejudice,

Gamache waived the objection by failing to object.

                                   DNA Evidence

Chain of Custody

       Gamache attacks the DNA evidence linking Gamache to McCune and his

pill bottle in part by arguing the pill bottle evidence should not have been

admitted because the chain of custody was unsecured.

       McCune stored his pill bottles in a filing cabinet. In the immediate

aftermath of finding McCune's body, his wife believed some of his pills were

missing, but she attributed their absence to her mistaken belief that McCune had

taken them as part of a plan to commit suicide. After the police left the home,

McCune's wife moved the pills to her sister's ,adjoining duplex so they would be

out of the way for the people cleaning the crime scene.

       An autopsy revealed that McCune was murdered and that he did not have

any of the missing pills in his stomach. By this point, officers had learned of

Gamache's history with McCune and that Gamache was missing since the day of

the murder. Three days after the murder, officers went to McCune's home to

gather his pain medications. McCune's wife gave them a bag containing the pill

bottles she had collected. The officer labeled the bag and the pill bottles and

processed them for evidence. When the bottles were tested, one contained DNA

evidence implicating Gamache.

       Gamache moved to suppress this evidence. He argued that the bottles

had not been protected and any evidence they contained was unreliable. The


                                         17
No. 76005-0-1/18

trial court denied the motion, ruling that the argument went to the weight of the

evidence and not its admissibility.

       I am satisfied that the pill bottles as medication is packaged these days
       are readily identifiable pieces of evidence. It contains the name of the
       person for whom it's prescribed and they have other information
       concerning the medication itself, etcetera.

      I am satisfied that this is sufficiently documented by the photos and the
      fact that these are items that clearly contain information as to what they
      are. There are photos in the residence showing bottles present of the
      medication prescribed to Mr. McCune. I am satisfied it goes to the weight
      of the evidence as the trier of fact might give weight to this particular
      evidence.


       I am satisfied that there is sufficient chain of custody in terms of this
       readily identifiable item in the photos, that the arguments I think the
       Defense has they need to place to the jury either in cross or through
       witnesses. So the motion to suppress is denied.

      "Before a physical object connected with the commission of a crime may

properly be admitted into evidence, it must be satisfactorily identified and shown

to be in substantially the same condition as when the crime was committed."

State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984), cert. denied, 471 U.S.

1094, 206 S. Ct. 2169, 85 L. Ed. 2d 526(1985). "Evidence that is unique and

readily identifiable may be identified by a witness who can state that the item is

what it purports to be." State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682

(2002), citing 5 KARL B. TEGLAND, WASHINGTON PRACTICE § 402.31 (1999).

"However, where evidence is not readily identifiable and is susceptible to

alteration by tampering or contamination, it is customarily identified by the

testimony of each custodian in the chain of custody from the time the evidence

was acquired." Roche, 114 Wn. App. at 436. "The trial court is necessarily


                                          18
No. 76005-0-1/19

vested with a wide latitude of discretion in determining admissibility." Campbell,

103 Wn.2d at 21.

       Gamache contends the evidence at issue was inadmissible because of

the high risk that it was contaminated. But as the State argues, the pill bottle

"could have been contaminated in hundreds of ways between the 2nd and the

5th, but there is scant chance it was contaminated in the only way relevant to this

case, i.e., with Gamache's DNA. Gamache was nowhere near the bottle

between August 2 and August 5." Gamache's argument that the prosecutor

committed misconduct by offering the evidence is not persuasive.

Characterization of the DNA Evidence

       Gamache contends the prosecutor prejudicially overstated the strength of

the State's DNA evidence.

       The Maryland Supreme Court confronted a similar question in Whack v.

State, 433 Md. 728, 732, 73 A.3d 186 (2013). In Whack, DNA evidence was

taken from the scene of a murder. The chance of the DNA coming from an

African-American individual other than the defendant was 1 in 172. Whack,433

Md. at 737. In closing argument, the prosecutor asserted that the DNA

established the defendant was at the scene, and claimed the 1 in 172 odds were

essentially no different than 1 in 212 trillion odds. Whack,433 Md. at 745-47.

The trial court denied a defense motion for a mistrial. Whack,433 Md. at 741.

The Supreme Court reversed and remanded for a new trial, holding that the

prosecutor's remarks "likely misled the jury to the prejudice of the accused."

Whack,433 Md. at 755.


                                         19
No. 76005-0-1/20

       In two similar cases cited by Gamache, prosecutors were found to have

overstated the strength of DNA evidence. A one in three likelihood was ruled to

be too statistically insignificant to support the prosecutor's assertion that the

defendant's DNA was found in the victim's clothes in Duncan v. Commonwealth

of Kentucky, 322 S.W.3d 81, 90(Ky. 2010). When DNA evidence showed only

that a defendant could not be excluded, it was reversible error for the prosecutor

to claim the defendant's DNA was found at the scene. People v. Wright, 25

N.Y.3d 769, 776, 37 N.E.3d 1127 (2015).

       Here, in opening statement, the prosecutor asserted that the DNA mixture

taken from the pill bottle matched Gamache and McCune:

       And on one of those bottles, an empty bottle of Hydrocodone-
       Acetaminophen 10-325, on the lid, is a mixture of DNA. And that mixture
       of DNA matches a mixture of Wayne McCune and the defendant, Jason
       Gamache.

In closing, the prosecutor listed the DNA taken from the pill bottle as evidence

against Gamache:

       You add all that up, his deception and lies, you add up the blood, the DNA
       on the shoes, the DNA on the mitt, DNA on the empty bottle, specific
       targeted robbery, the prior knowledge possessed by him. . ..

       So when you put that all together, who killed Wayne McCune?

The prosecutor further stated that the pill bottle contained a "mixture of DNA,

Wayne McCune's and the Defendant's." In both the opening statement and

closing argument, the prosecutor referred to the blood on the rag found in

Gamache's vehicle as coming from McCune. The State's forensic expert

testified that the blood on the rag "matches the DNA profile of Wayne McCune,"

with a 1 in 260,000 probability of selecting an unrelated individual at random with

                                         20
No. 76005-0-1/21

a matching profile. For the DNA on the pill bottle, he said it was 230 times more

likely than not to be from a mixture of McCune and Gamache than from McCune

and an individual selected at random.

       We agree with Gamache that the discussion of DNA evidence must be

handled with care. "DNA is a powerful tool and its importance in the courtroom

cannot be overstated." Whack, 433 Md. at 732. A prosecutor's statements must

be considered within the larger context in which DNA evidence is treated by

jurors. Whack,433 Md. at 747. In this case, the prosecutor's description of the

DNA evidence was not as overstated as in the cases cited by Gamache, but it

did go beyond the expert testimony offered at trial because the prosecutor

omitted the statistical probability stated by the expert. To say that the DNA

evidence "matches" the defendant without addressing the statistical qualification

stated by the expert is potentially misleading. But Gamache did not object to the

alleged overstatement of the evidence. Because the prosecutor's alleged

misstatements were neither flagrant nor incurable, the issue is waived. Fisher,

165 Wn.2d at 747.

Ineffective Assistance of Counsel

       Gamache alleges that his trial counsel provided ineffective assistance by

failing to object. A claim of ineffective assistance counsel requires a showing of

deficient performance and prejudice. State v. McFarland, 127 Wn.2d 322, 334-

35, 899 P.2d 1251 (1995). "Courts engage in a strong presumption counsel's

representation was effective." McFarland, 127 Wn.2d at 335.




                                        21
No. 76005-0-1/22

       Gamache claims defense counsel was ineffective by failing to object to

Officer Lind's testimony about what McCune said on grounds that it violated the

confrontation clause, by failing to object to the prosecutor's characterization of

DNA evidence, and by failing to object that the prosecutor improperly bolstered

Lubin's opinion testimony by eliciting her agreement that it was in line with the

practice and policies of her office. As discussed above, Gamache has not shown

that such objections would have been sustained. He fails to establish deficient

performance.

       Additionally, Gamache contends counsel was deficient by failing to

request a limiting instruction when the court admitted evidence of his previous

attempt to take McCune's pills. Failure to request a limiting instruction may be a

legitimate tactical decision not to reemphasize damaging evidence. State v.

Yarbrough, 151 Wn. App. 66, 90, 210 P.3d 1029 (2009). That is the case here.

The record shows that defense counsel considered requesting a limiting

instruction before ultimately deciding not to offer one. We conclude counsel

made a tactical decision and did not render deficient performance.

Polling of the Jury

       The first trial transcript submitted to this court showed that only 11 jurors

were polled as to whether the verdict was unanimous. Gamache argued in his

opening brief that the absence of the twelfth juror required reversal. The State

obtained and submitted a corrected transcript. Unable to determine which

transcript was reliable, we asked the trial court to settle the record as permitted

by RAP 9.5. The trial court reviewed the audio recording of the polling of the jury


                                         22
No. 76005-0-1/23

and determined that the second transcript is correct. We accept that

determination. There was no error in the polling of the jury.

Cumulative Error

      The combined effect of an accumulation of errors not individually

reversible may necessitate a new trial. State v. Coe, 101 Wn.2d 772, 789, 684

P.2d 668(1984). Gamache alleges but fails to establish the existence of multiple

errors.

          Affirmed.




WE CONCUR:




                                        23
