                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          April 3, 2019




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                           No. 48294-1-II
                                                           Consolidated with No. 49554-6-II
                                 Respondent,

           v.

    CHRISTOPHER WILLIAM OLSEN,                                UNPUBLISHED OPINION

                                 Appellant.

    In re the Matter of
    the Personal Restraint of

    CHRISTOPHER WILLIAM OLSEN,

                                 Petitioner.



          JOHANSON, J.P.T.* — This is a consolidated direct appeal and personal restraint petition

(PRP). A jury convicted Christopher William Olsen of two counts of first degree murder and one

count of second degree murder. In his appeal, Olsen argues that the trial court erred when it (1)

gave an aggressor instruction, (2) denied his pretrial suppression motion, and (3) restricted voir

dire. Olsen further argues that (4) the evidence was insufficient to convict him of a vacated first

degree murder conviction and (5) the trial court abused its discretion when it allowed extrinsic


*
 Judge Jill M. Johanson is serving as a judge pro tempore for the Court of Appeals, pursuant to
RCW 2.06.150.
Consol. Nos. 48294-1-II / 49554-6-II


evidence of a witness’s prior inconsistent statement under ER 613(b). Olsen also (6) submits an

extensive statement of additional grounds (SAG).1 In his PRP, Olsen argues that (7) a witness’s

recantation constitutes newly discovered evidence that merits a new trial.

         In Part One, regarding Olsen’s direct appeal, we hold that the trial court properly (1) gave

the aggressor instruction, (2) denied Olsen’s pretrial suppression motion, and (3) allotted voir dire

time. Further, we (4) decline to reach Olsen’s argument that the evidence was insufficient to

convict him of the vacated count, (5) hold that the trial court properly allowed extrinsic evidence

under ER 613(b), and (6) reject Olsen’s SAG arguments as lacking merit, relying on matters

outside the record, or are too vague to address. We affirm Olsen’s conviction. In Part Two, after

a reference hearing regarding the witness’s recantation, we deny Olsen’s PRP.

                                               FACTS

                                            I. OVERVIEW

         At approximately 6:00   PM   on February 16, 2014, Robert Ward was shot and killed on

Canyon Road in Pierce County. Olsen was arrested and eventually charged with first degree

premeditated murder, first degree murder under circumstances manifesting an extreme

indifference to human life, and second degree felony murder.

         At Olsen’s trial, the State introduced evidence that Ward had stolen Olsen’s rental truck on

the day before the shooting. Olsen learned from Presley Lind that her acquaintances, Nathan

Stevenson and Joseph Kaplin, knew Ward. According to Lind, at Olsen’s behest, she, Stevenson,




1
    RAP 10.10.

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and Kaplin orchestrated a setup, so that Ward would be waiting at a shopping center on Canyon

Road on February 16.

       Olsen claimed that he went to the Canyon Road shopping center to recover his stolen

belongings from Ward. Olsen brought a firearm with him, pulled up behind Ward’s car, and

chased after Ward when he fled. When Ward panicked and drove into oncoming traffic, Olsen

stopped his truck on the median, turned back toward Ward, aimed, and shot Ward in the head,

killing him.

                        II. SUPPRESSION MOTION AND MOTIONS IN LIMINE

       Before trial, Olsen filed a suppression motion, which included arguments about the validity

of three “trap and trace” court orders obtained by police and authorizing the use of “pen register”

or “trap and trace” devices to target Stevenson’s, Lind’s, or Olsen’s phone number.2 Clerk’s

Papers (CP) at 117. Olsen claimed that the trap and trace order that police obtained for Stevenson’s

phone did not authorize police to use a cell-site simulator (“Stingray”) device, that Olsen had

standing to contest the Stingray’s use, and that “all evidence obtained as a result” should be

suppressed. CP at 125, 121, 130. Olsen argued that police illegally located and arrested Stevenson

on February 18 using the Stingray device. At the suppression motion hearing, Olsen also argued

that because the trap and trace orders were all without respect to geographical limitations, they

were all invalid.

       In support of Olsen’s suppression motion, he relied upon police interviews, affidavits, and

the three trap and trace court orders to document the investigation into Ward’s death. According



2
 Former RCW 9.73.260(2) (1998) forbade police from using a “pen register” or “trap and trace
device” in nonemergency circumstances without first obtaining a court order.

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to police affidavits, investigators learned that shortly before Ward’s death, he had been in contact

with Stevenson. Investigators obtained a search warrant for Stevenson’s cell phone records. On

February 17, police also obtained a trap and trace court order targeting Stevenson’s phone number.

       On February 18, police located and arrested Stevenson. Stevenson informed police of the

involvement of Lind and a man named “Chris.” CP at 230. Police located Olsen and subsequently

arrested him in Idaho using information provided by his cell phone company under the trap and

trace order that targeted his number.

       In support of his suppression motion, Olsen also relied upon transcripts of defense

interviews with Tacoma and Pierce County detectives. Detectives explained that they had the

ability to actively plot the location of a cell phone using a Stingray device. The Stingray narrowed

down a cell phone’s location from data provided from the phone company; it apparently resembled

a “mobile cell phone tower.”3 CP at 203. While investigating Ward’s death, detectives deployed

the Stingray to locate Stevenson but not to locate anyone else in the case.

       The trial court denied Olsen’s suppression motion because he lacked standing to contest

the Stingray’s use to apprehend Stevenson. As for Olsen’s argument that the trap and trace orders

were all facially invalid, the trial court focused on only the trap and trace order used to apprehend

Olsen. The trial court ruled that Olsen did not have a privacy interest in his location.




3
  The information about the Stingray in the interviews is limited in the record. Under the terms of
a nondisclosure agreement between police and the Federal Bureau of Investigation, detectives
claimed they could not divulge many details.

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                             III. JURY SELECTION AND MISTRIAL MOTION

          After swearing in prospective jurors, the parties and the trial court conducted voir dire. The

trial court allowed 40 minutes of questioning per party “to begin with.” Verbatim Report of

Proceedings (VRP) (Sept. 14, 2015) at 351. The trial court cautioned the parties that it would “see

where we are after that,” and Olsen agreed that this was acceptable to him. VRP (Sept. 14, 2015)

at 351.

          Olsen questioned the venire about their perceptions of the criminal justice system, focusing

on the burden of proof and the right to a jury trial and jury unanimity. After Olsen’s time expired,

he requested an additional 40 minutes, and the State requested an additional 5 minutes. The trial

court granted each side an additional 15 minutes. Olsen then asked the venire about whether a

killing could be justified in self-defense and their perceptions about firearms.

          When the venire was excused, Olsen moved for a mistrial on the basis that the trial court

improperly restricted voir dire. Olsen argued that the trial court never apprised him that his

questioning during voir dire would be limited and that without further questioning, he was unable

to broach the topic of police witnesses’ credibility. The trial court denied the mistrial motion

because both sides had adequate time to explore the issues.

                                         IV. TRIAL TESTIMONY

          At the beginning of trial and over Olsen’s relevancy objection, the trial court allowed the

State to use one “in-life” photograph of Ward with his family.




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                                       A. STATE TESTIMONY

1.     EVENTS LEADING UP TO THE SHOOTING

       Olsen’s acquaintances, Douglas Nelson and Lind, and Lind’s acquaintances, Kaplin and

Stevenson, testified for the State about the events leading up to the shooting. On February 15, the

day before Olsen killed Ward, the two met for the first time at Nelson’s home. According to

Nelson, Olsen and Ward left Nelson’s home together. Nelson had previously given Olsen a

handgun.

       Later that day, Olsen returned to Nelson’s home, and Olsen reported that Ward had stolen

Olsen’s rental truck. Olsen was angry and remained upset despite Nelson’s attempts to calm him

down. Nelson warned Olsen to be careful because Ward had previously shot and killed someone,

had robbed several of Nelson’s friends, and carried a loaded handgun.

       The next day, Olsen learned from Lind, a woman with whom Olsen used drugs and had a

“casual relationship,” that her acquaintances, Kaplin and Stevenson, knew Ward. Olsen wanted

Lind, Kaplin, and Stevenson to “get [Ward] to meet [them] somewhere,” and the four orchestrated

a scheme to trick Ward into waiting at a shopping center on Canyon Road, ostensibly to sell drugs

to Stevenson’s cousin.4 VRP (Sept. 16, 2015) at 719. Stevenson subsequently met with Ward,

who showed his handgun to Stevenson. After this meeting, Stevenson told Lind to warn Olsen

that Ward was armed.




4
 The State provided an exhibit summarizing the cell phone records of Lind, Kaplin, Stevenson,
and Olsen on February 15 and 16 to corroborate this testimony.

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Consol. Nos. 48294-1-II / 49554-6-II


       Lind went to the Canyon Road shopping center to meet Olsen, who was driving a second

rental truck. At the shopping center, Lind pointed out Ward’s car to Olsen. Lind then approached

Ward’s car alone and spoke with Ward.

       While Lind spoke to Ward, Olsen drove his truck behind Ward’s car. Lind saw two

passengers in Ward’s car and told Ward that “his friends might want to get out of the car.” VRP

(Sept. 16, 2015) at 742. Instead, Ward “peeled out” of the parking lot with Olsen pursuing directly

behind him. VRP (Sept. 16, 2015) at 743.

2.     THE SHOOTING

       a.      PASSENGERS’ TESTIMONY

       Both Ward’s passengers, Richard Pederson and Bryant Ward, testified for the State.

Pederson, who was sitting in the front passenger seat of Ward’s car, testified that he told Ward to

leave when Lind warned Ward’s passengers. When Ward left, Olsen began firing at Ward’s car,

and Ward quickly drove from the parking lot to an access road and onto Canyon Road.

       At the intersection, Pederson told Ward to turn left onto Canyon Road, but Ward “panicked

and took a right and went into oncoming traffic.” VRP (Sept. 21, 2015) at 1158. Pederson then

realized that Ward had been shot in the head. According to Pederson, Ward was armed with a

small handgun, which Ward drew at the intersection of the access road and Canyon Road but never

raised above his lap.

       Bryant,5 who had been sitting in the backseat of Ward’s car, explained that he had received

immunity for “any drug activity” on February 16 in return for his testimony. VRP (Sept. 21, 2015)



5
  Because the victim and Bryant Ward have the same last name, we refer to Bryant Ward by his
first name. No disrespect is intended.

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Consol. Nos. 48294-1-II / 49554-6-II


at 1101. According to Bryant, he heard a dozen gunshots coming from the pickup truck behind

Ward’s car, beginning within 5 to 10 seconds from when Ward accelerated his vehicle. Ward fled

from the shopping center parking lot into an alley and out onto Canyon Road, turning into

oncoming traffic. At this point, Olsen’s truck was still pursuing. The gunshots continued, although

Bryant neither heard anyone in Ward’s car return fire nor saw a firearm in Ward’s car. When some

of the shots hit Ward’s car, the car began to slow, and Bryant jumped out of the car and ran away

from the scene.

       b.      BYSTANDERS’ TESTIMONY

       Bystanders who were driving on Canyon Road at the time of the shooting testified for the

State. William Gamm, driving southbound, saw Ward’s car driving north, into oncoming traffic

in the left southbound lane. Gamm witnessed Olsen stop his truck partially on the median between

northbound and southbound traffic. Then Olsen pointed a handgun out the truck’s window, took

aim, and shot four times at Ward’s car. Ward’s car was behind Olsen’s truck and parallel to

Gamm’s vehicle, and Gamm feared he would be struck by the bullets. He recalled seeing Olsen’s

expression: “[j]ust a cold, intentional, wanting to hurt something [sic].” VRP (Sept. 22, 2015) at

1233. Another southbound driver testified that traffic was “medium” at the time and that any car

on Canyon Road was in danger. VRP (Sept. 22, 2015) at 1268.

       Verne Yates, who was traveling north on Canyon Road, testified that he saw Ward’s car

go through the intersection of Canyon Road. Ward’s car turned into the wrong lane of traffic with

a truck following immediately behind. A few seconds later, the truck jumped the median and

traveled north. Another driver, who was at an intersection to the north of the shooting, heard three

gunshots and then witnessed a truck drive past, running the red light.


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Consol. Nos. 48294-1-II / 49554-6-II


3.        EVENTS AFTER THE SHOOTING

          Police responded to the scene, where they found Ward’s car with one bullet hole through

the passenger window. Ward had been shot in the head and was unconscious; he was pronounced

clinically brain dead the following day. A firefighter found Ward’s handgun underneath Ward, on

the driver’s seat. The handgun was fully loaded but had no bullet in the chamber. A photograph

of Ward’s blood-covered cell phone, showing Stevenson’s number as the last call, was also

admitted over Olsen’s objection.

          Police subsequently recovered the rental truck that Olsen drove during the shooting. The

truck’s ignition lock had been destroyed, and its license plate was missing. Damage to the

passenger mirror was consistent with shots fired from the driver’s seat.

          Nelson testified that he spoke to Olsen after the incident, and Olsen said that he was

“getting out of Dodge.” VRP (Sept. 16, 2015) at 691. Lind said that Olsen told her to tell

authorities that she had seen Ward with a firearm “so that [Olsen] could claim self-defense.” VRP

(Sept. 16, 2015) at 750.

          Olsen was arrested in Idaho. Over Olsen’s objection, Detective Ryan Salmon testified that

a black Samsung cell phone in a red case belonging to “Mistie Boutelier”6 was discovered when

police arrested Olsen. VRP (Sept. 17, 2015) at 974. Boutelier’s cell phone was in Olsen’s

possession when he was arrested, although the State did not provide evidence about where the cell

phone was located in relation to Olsen. This phone’s internet search history showed various

searches for news related to the shooting on Canyon Road and a visit to the “Washington Most




6
    Neither party called Boutelier as a witness.

                                                   9
Consol. Nos. 48294-1-II / 49554-6-II


Wanted website.” VRP (Sept. 17, 2015) at 997. The phone had been used to send text messages

containing hyperlinks to news articles about the shooting and asking whether “they had tried to

contact her” or “if there were crows outside.”7 VRP (Sept. 17, 2015) at 998.

4.       NICOLE CLARK’S AND DETECTIVE DELGADO’S TESTIMONY

         Olsen’s live-in girlfriend, Nicole Clark, testified that she believed Olsen was home around

6:00 PM, the time of the shooting, on February 16. Clark stated that she had slept for a period of

time that afternoon but awoke by 6:00 PM to prepare dinner. The prosecutor asked Clark about her

prior statements to police that she “did not see Mr. Olsen from the time [she] went up to [her]

bedroom for one to two hours after arriving home with the [rental truck] until the time [she] came

downstairs at approximately 3:00 a.m.” VRP (Sept. 17, 2015) at 916. In response, Clark stated,

“Maybe my memory was a lot better then.” VRP (Sept. 17, 2015) at 916. Earlier, the State had

introduced evidence that Clark rented the second truck for Olsen at 2:07 PM on February 16.

         Later, Detective John Delgado testified that he had interviewed Clark. Over Olsen’s

objection and pursuant to ER 613(b),8 the trial court allowed Detective Delgado’s testimony as

extrinsic evidence of Clark’s prior inconsistent statement about whether Olsen was home at 6:00

PM   on February 16. Detective Delgado testified that during his interview of Clark, she stated that

on February 16, she had slept from approximately an hour or two after returning home with Olsen

until 3:00 AM.



7
 During Detective Salmon’s testimony, the trial court also admitted three recordings from Olsen’s
cell phone over Olsen’s objection that the videos were irrelevant and cumulative.
8
 ER 613(b) allows extrinsic evidence of a prior inconsistent statement if the witness is given an
opportunity to explain or deny the prior inconsistent statement and the opposite party is given an
opportunity to interrogate the witness thereon.

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                                      B. DEFENSE TESTIMONY

1.     OLSEN’S TESTIMONY

       Olsen testified. From Nelson, Olsen knew that Ward had once killed someone, carried a

gun, and was dangerous. On February 15, Ward had accompanied Olsen to a casino parking lot

to assist him in transferring items to his rental truck. Instead, Ward stole the rental truck.

       According to Olsen, Lind told Olsen that one of her friends planned to purchase drugs from

Ward and suggested that Olsen could go to their meeting place to try to regain his vehicle. She

directed Olsen to drive to the Canyon Road shopping center. There, Olsen planned on speaking

with Ward to regain the rental truck. Olsen admitted to bringing his handgun for this encounter

because he thought that he might need protection from Ward.

       According to Olsen’s version of events, he pulled up behind Ward in the shopping center

parking lot, and Ward “took off” from the parking lot down an access road. VRP (Oct. 1, 2015)

at 2082. To Olsen, Ward seemed to be trying to get away from whoever was behind him. Olsen

followed directly behind. While Olsen and Ward were on the access road, Olsen saw Ward

“bringing [his] gun up,” so Olsen “fired two rounds out the passenger window” of his truck as a

warning. VRP (Oct. 1, 2015) at 2085.

       When Ward reached the access road’s intersection with Canyon Road, Olsen claimed that

he did not see Ward turn into oncoming traffic; rather, Olsen thought Ward would turn left and

that they would “go [their] separate ways.” VRP (Oct. 1, 2015) at 2138. Olsen turned right and

tried to compose himself for a moment but then heard horns honking and realized that Ward’s car

was behind Olsen’s and driving toward him on the wrong side of the road. He saw a gun in Ward’s

hand. Ward pointed his gun at Olsen and before Ward could start shooting, Olsen “fired back.”


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Consol. Nos. 48294-1-II / 49554-6-II


VRP (Oct. 1, 2015) at 2088. Olsen did not stop his vehicle and fired over his shoulder three to

four times. He left the scene without seeing the result of the shots that he fired.

       Olsen described himself as being in a state of panic and fear. He threw his firearm in a

dumpster, changed his phone number, “dug . . . out” the second rental truck’s ignition, and traveled

to Idaho.9 VRP (Oct. 1, 2015) at 2147. When Olsen spoke to Clark after the incident, he told her

that he did what he had to do to keep his family safe.

2.     OTHER DEFENSE TESTIMONY

       Olsen also relied on the testimony of a witness who was familiar with Ward and explained

that Ward had a reputation for violence and a habit of carrying a firearm.

                                      V. JURY INSTRUCTIONS

       The trial court gave 11 Washington Practice: Washington Pattern Jury Instructions:

Criminal 16.02, at 248 (4th ed. 2016) (WPIC), the justifiable homicide instruction, instructing the

jury that justifiable homicide was a defense to all charges. Justifiable homicide occurred if Olsen

reasonably believed “the person slain intended to inflict death or great personal injury upon him,”

Olsen “reasonably believed that there was imminent danger of such harm being accomplished by

the person slain,” and Olsen employed the force and means that a reasonably prudent person would

have employed under the circumstances as they reasonably appeared to Olsen. CP at 525. The

trial court declined to include Olsen’s proposed version of WPIC 16.02, which included that self-

defense could be predicated on a belief that “the person slain or others whom the defendant




9
  Olsen initially sought to limit his testimony solely to events up to when shots were fired. The
trial court, however, allowed the prosecutor to cross-examine Olsen about events after the
shooting.

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Consol. Nos. 48294-1-II / 49554-6-II


reasonably believed were acting in concert with the person slain intended to inflict death or great

personal injury.” CP at 553 (emphasis added).

       Over Olsen’s objection, the trial court also gave the aggressor instruction proposed by the

State, WPIC 16.04, at 256, because in the trial court’s view, there was evidence to support the

instruction. The instruction stated,

               No person may, by any intentional act reasonably likely to provoke a
       belligerent response, create a necessity for acting in self-defense and thereupon kill,
       use, offer, or attempt to use force upon or toward another person. Therefore, if you
       find beyond a reasonable doubt that the defendant was the aggressor, and that
       defendant’s acts and conduct provoked or commenced the fight, then self-defense
       is not available as a defense.

CP at 530.

       The trial court also gave WPIC 2.04.01, at 38, defining “great personal injury,” and WPIC

2.04, at 36, defining “great bodily harm.” CP at 520, 527. Fearing that the jury would be confused,

and over Olsen’s objection, the trial court added language to WPICs 2.04.01 and 2.04 to explain

that they pertained to, respectively, “self-defense” and “assault in the first degree.” CP at 520,

527. The trial court declined to give Olsen’s proposed WPIC 17.02, at 268, defining lawful force.

                                       VI. CLOSING ARGUMENT

                             A. PROSECUTOR’S CLOSING ARGUMENT

       In closing argument, the prosecutor’s theory of the case was that Olsen ambushed Ward by

“lur[ing] and bait[ing]” Ward to the Canyon Road shopping center and then “hunt[ing] and

kill[ing]” him. VRP (Oct. 2, 2015) at 2231. The prosecutor repeatedly emphasized this baiting

and hunting theme and that Olsen chased Ward when he attempted to flee.

       The prosecutor undermined testimony that Olsen’s intention was merely to recover his

stolen truck by relying on the testimony of Pederson and Bryant—Ward’s passengers. Based on

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Pederson’s and Bryant’s testimony, “we first learn that [Olsen] is not just trying to get his car back,

he’s intending to kill, because in that parking lot, he parks behind him, and as soon as they take

off, he gives hot pursuit and he starts firing his gun.” VRP (Oct. 2, 2015) at 2245. Corroborating

that Olsen’s intent was “to kill” was evidence that Olsen brought his handgun, that he never called

911 on February 16, and that Olsen was chasing Ward. VRP (Oct. 2, 2015) at 2245. The

prosecutor also argued that Gamm’s testimony was that Olsen’s eyes were “cold,” “evil,” and

“intentional” when he shot Ward. VRP (Oct. 2, 2015) at 2250.

                                 B. OLSEN’S CLOSING ARGUMENT

       Olsen’s closing focused on arguing self-defense—a defense to each of the charged

crimes—and disputing that Olsen’s intent was to kill Ward when Olsen arrived at the shopping

center. Based on his own testimony, Olsen argued that he had seen a gun in Ward’s hand when

Ward sped down the access road and that Olsen had fired warning shots out his passenger window.

When Olsen reached the intersection and turned right, he emphasized that his intent was “to leave”

because he thought Ward would turn left and the encounter would end. VRP (Oct. 2, 2015) at

2279. On this point, Olsen disputed the credibility of Gamm’s claim that Olsen had stopped his

vehicle to turn back and shoot Ward.

       Olsen also argued that he was following Ward to learn where Ward lived and where the

stolen truck was located. He discussed the aggressor instruction and argued that Ward, not Olsen,

was the aggressor because Ward had stolen from Olsen.

                                C. REBUTTAL CLOSING ARGUMENT

       In rebuttal closing argument, the prosecutor responded to Olsen’s closing argument by

pointing out that the theories that Olsen both followed Ward to locate Olsen’s car and that Olsen


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Consol. Nos. 48294-1-II / 49554-6-II


attempted to leave were mutually incompatible. Over Olsen’s objection, the prosecutor also

brought up Olsen’s own testimony as evidence of “covering his tracks.” VRP (Oct. 2, 2015) at

2299. And using the analogy of “whether or not a prostitute could be raped,” the prosecutor

reminded jurors that Ward’s misdeeds did not make Olsen any less guilty. VRP (Oct. 2, 2015) at

2307.

                                 VII. CONVICTION AND SENTENCING

          The jury found Olsen guilty of all three counts—first degree premeditated murder, count

I, first degree murder by extreme indifference, count II, and second degree felony murder, count

III. Although Olsen requested that the trial court individually poll the jurors, the court polled the

jury collectively, asking each juror to raise his or her hand. Each juror indicated that he or she

concurred regarding each verdict.

          Following Olsen’s trial, the trial court vacated counts II and III, murder by extreme

indifference and felony murder, to avoid double jeopardy violations. Olsen received a 608-month

sentence on the remaining conviction, first degree premeditated murder, count I.

          Olsen appeals his conviction.10

                                  PART ONE – DIRECT APPEAL

                                             ANALYSIS

                                     I. AGGRESSOR INSTRUCTION

          Olsen argues that the evidence did not support giving the aggressor instruction, WPIC

16.04, because he withdrew from the encounter. We disagree.




10
     Additional facts related to Olsen’s PRP are provided infra, section I of Part Two.

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Consol. Nos. 48294-1-II / 49554-6-II


       The standard of review for a trial court’s decision whether to give a jury instruction depends

on the reason for the decision. “If the decision was based on a factual determination, it is reviewed

for abuse of discretion.” State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015). But “[i]f

it was based on a legal conclusion, it is reviewed de novo.” Condon, 182 Wn.2d at 316.

       When we review whether the evidence supports giving a certain instruction, we look at the

evidence in the light most favorable to the requesting party. State v. Wingate, 155 Wn.2d 817, 823

n.1, 122 P.3d 908 (2005) (citing State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150

(2000)). Our Supreme Court has approved WPIC 16.04 and stated that it is appropriate where the

evidence conflicts regarding whether the defendant’s conduct precipitated a fight. Wingate, 155

Wn.2d at 821-22 (quoting State v. Riley, 137 Wn.2d 904, 910, 976 P.2d 624 (1999)). An aggressor

may revive his right to use self-defense only if he shows he “in good faith first withdr[ew] from

the combat at a time and in a manner to let the other person know that he [was] withdrawing or

intend[ed] to withdraw from further aggressive action.” Riley, 137 Wn.2d at 909.

       Here, the trial court decided that there was evidence to support giving the aggressor

instruction.11 Thus, we review the trial court’s decision for an abuse of discretion. See Condon,

182 Wn.2d at 315-16.




       11
          The instruction given stated,
       No person may, by any intentional act reasonably likely to provoke a belligerent
       response, create a necessity for acting in self-defense and thereupon kill, use, offer,
       or attempt to use force upon or toward another person. Therefore, if you find
       beyond a reasonable doubt that the defendant was the aggressor, and that
       defendant’s acts and conduct provoked or commenced the fight, then self-defense
       is not available as a defense.
CP at 530.

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       Viewed in the light most favorable to the requesting party, the State, the evidence supports

a finding that Olsen precipitated the encounter. The State provided evidence that Olsen requested

Lind’s assistance to set Ward up, went to the Canyon Road shopping center where Ward was

waiting, pulled up directly behind Ward’s vehicle, and then, when Ward “peeled out,” chased after

Ward. VRP (Sept. 16, 2015) at 743. Ward’s passengers also testified that Olsen was the first to

shoot: Bryant heard a “[d]ozen” gunshots within 5 to 10 seconds of Ward accelerating, and

Pederson testified that Olsen began “shooting at” Ward’s car while Ward’s car was still in the

shopping center parking lot. VRP (Sept. 21, 2015) at 1111, 1158. Olsen’s arguments on appeal

that the parties disputed who first fired the shots and who first drew a weapon overlook that we

take the evidence in the light most favorable to the State, and thus his arguments on this basis fail.

Wingate, 155 Wn.2d at 823 n.1.

       Olsen also argues that he provided evidence that he withdrew from the encounter, so that

he revived his right to self-defense when he turned right at the intersection onto Canyon Road. See

Riley, 137 Wn.2d at 909. In this regard, Olsen appears to rely on his own testimony that he thought

Ward turned left and that they went their separate ways. However, Olsen overlooks that the State

provided evidence to support that he did not withdraw from the fight. Bryant testified that Olsen

continued shooting from when Ward’s car was in the parking lot to when he turned onto Canyon

Road. Pederson testified that Ward “would have gotten away,” but he panicked and turned into

oncoming traffic, where Olsen shot him. VRP (Sept. 21, 2015) at 1158. Taken in the light most

favorable to the State, this evidence controverts that Olsen manifested an intent to withdraw and

instead shows that Olsen continually pursued and shot at Ward until he killed him. See Riley, 137

Wn.2d at 909.


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Consol. Nos. 48294-1-II / 49554-6-II


       Viewed in the light most favorable to the State, the trial court did not abuse its discretion

when it gave the first aggressor instruction.

                                     II. SUPPRESSION MOTION

       Olsen argues that the trial court erred in denying his motion to suppress because the police’s

use of the Stingray device to apprehend Stevenson was illegal, and thus evidence of Olsen’s flight

to Idaho and evidence found on Boutelier’s cell phone when Olsen was arrested should have been

suppressed. We disagree.

       We review de novo legal conclusions on a motion to suppress. State v. Hinton, 179 Wn.2d

862, 867, 319 P.3d 9 (2014). The proponent of a motion to suppress has the burden to show

standing—that his own Fourth Amendment rights were violated by the challenged search. State

v. Goucher, 124 Wn.2d 778, 787, 881 P.2d 210 (1994). “Fourth Amendment rights are ‘personal

rights’ that may not be vicariously asserted”; one cannot invoke the Fourth Amendment rights of

others. State v. Jones, 68 Wn. App. 843, 847, 845 P.2d 1358 (1993) (quoting State v. Foulkes, 63

Wn. App. 643, 647, 821 P.2d 77 (1991)). To show standing, the challenger must have a personal

Fourth Amendment privacy interest in the area searched or the property seized. State v. Simpson,

95 Wn.2d 170, 174-75, 622 P.2d 1199 (1980); Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421,

58 L. Ed. 2d 387 (1978).

       Olsen acknowledges that he must show standing but claims that “the unique qualities of

the Stingray give everyone a privacy interest in preventing its use.” Am. Br. of Appellant at 31.

We reject this argument.

       Olsen relies on two factual assertions that the record does not support: first, he asserts that

anywhere from “20” to “20 million” people’s data could have been “monitor[ed] and store[d]”


                                                 18
Consol. Nos. 48294-1-II / 49554-6-II


when police used a Stingray device to locate and arrest Stevenson. Am. Br. of Appellant at 32.

Notably, Olsen provides no citation to the record to substantiate his claims that the Stingray’s use

invaded the privacy rights of anyone other than Stevenson. Neither do the interview transcripts

provided by Olsen in support of his suppression motion substantiate his claims: the detective used

the Stingray to plot a phone’s location from general location data provided by the phone company

but provided no information about whether the Stingray captured others’ content.

       Second, Olsen asserts that “[t]here is a high likelihood Olsen’s cell phone was tracked

along with thousands of others on February 18.” Am. Br. of Appellant at 32. Again, Olsen’s

argument that his privacy rights were violated is entirely speculative and relies on no factual

support from the record. Because Olsen fails entirely to show that his privacy rights were violated

and because the record is devoid of support for his statement that up to “20 million” people’s

privacy was invaded, he does not meet his burden to show standing. Am. Br. of Appellant at 32.

       Olsen cites State v. Young, 123 Wn.2d 173, 867 P.2d 593 (1994). But Young did not hold

that the neighbors had standing to contest the thermal investigations. 123 Wn.2d at 186-87.

Further, in Young, there was evidence that police actually used the thermal detection device on

other residences than the defendants. 123 Wn.2d at 178. In contrast, here, Olsen fails to point to

any evidence, other than speculation, that the Stingray was used on anyone’s device other than

Stevenson’s.




                                                19
Consol. Nos. 48294-1-II / 49554-6-II


        Olsen also cites to Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206, 201 L. Ed.

2d 507 (2018).12 Carpenter held that an individual has a privacy interest, for Fourth Amendment

purposes, in the record of his past physical movements as captured through cell-site location

information (CSLI). Carpenter, 138 S. Ct. at 2217. The Supreme Court held that the government

must obtain a search warrant before acquiring the CSLI information. Carpenter, 138 S. Ct. at

2221. As discussed above, Olsen has not shown that his physical movements were captured by

CSLI. And to the extent Olsen relies on Stevenson’s CSLI, his argument also fails because

Carpenter does not address the issue of standing based on the invasion of another person’s privacy

interest.

        In supplemental authorities, Olsen cites Jones v. United States, 168 A.3d 703 (D.C. 2017),

and Maryland v. Andrews, 227 Md. App. 350, 134 A.3d 324 (2016). But neither case addresses

standing. Both cases involved the defendant’s own CSLI. Thus, neither case supports Olsen’s

claim that he has standing to assert a violation of Stevenson’s right to privacy in Stevenson’s CSLI.

Because Fourth Amendment rights are personal rights that may not be vicariously asserted, Olsen

cannot invoke Stevenson’s Fourth Amendment rights. Jones, 68 Wn. App. at 847. And to the

extent his argument rests on a violation of his own privacy rights, the record fails to support that

any CSLI about Olsen was obtained.




12
   Olsen cites to Carpenter in his post-reference hearing supplemental briefing. Although this
issue is outside the scope of the reference hearing, we address it here as an extension of his direct
appeal argument.

                                                 20
Consol. Nos. 48294-1-II / 49554-6-II


          Accordingly, Olsen lacked standing to contest the Stingray’s use to locate Stevenson

because he fails to show that his privacy interest was invaded. We affirm the trial court’s denial

of Olsen’s suppression motion on this basis.13

                                             III. VOIR DIRE

          Olsen argues that the trial court abused its discretion because it unreasonably restricted his

voir dire time. We hold that the trial court did not abuse its discretion.14

          “It is well settled that trial courts have discretion in determining how best to conduct voir

dire.” State v. Davis, 141 Wn.2d 798, 825, 10 P.3d 977 (2000). This discretion includes ensuring

that an impartial jury is selected with reasonable expedition. State v. Frederiksen, 40 Wn. App.

749, 753, 700 P.2d 369 (1985). “[A]bsent an abuse of discretion and a showing that the rights of

an accused have been substantially prejudiced, a trial court’s ruling on the scope and content of

voir dire will not be disturbed on appeal.” Davis, 141 Wn.2d at 826.

          At Olsen’s trial, the trial court employed a wait-and-see approach, in which it first gave

each party 40 minutes to conduct voir dire and then determined how much time to allot for a second

round of voir dire. The trial court said that after the initial 40 minutes per side, “we’ll see where

we are.” VRP (Sept. 14, 2015) at 351. In doing so, the trial court was within its considerable

discretion to determine the amount of time for voir dire. See Davis, 141 Wn.2d at 825.




13
     The dissent would also affirm but for a different reason. Dissent at 88.
14
  In his SAG, Olsen also argues that it was ineffective assistance of counsel not to clarify how
much time was remaining for voir dire. But it was reasonable for Olsen’s trial counsel not to
inquire further because the trial court decided to wait until the first portion of voir dire had been
completed before deciding how much more time to allot. Accordingly, Olsen fails to show
deficient performance, and thus, his related ineffective assistance of counsel claim fails.

                                                   21
Consol. Nos. 48294-1-II / 49554-6-II


       After the first round of voir dire was complete, Olsen requested 40 additional minutes, and

the State requested 5 minutes. The trial court granted an additional 15 minutes per side. Olsen

argues that the trial court’s “reduc[tion]” of the second session of voir dire from 40 to 15 minutes

was unreasonable and an abuse of discretion.           Am. Br. of Appellant at 36.       But Olsen

mischaracterizes the trial court’s decision: the trial court did not promise an additional 40 minutes

only to later “reduce” this time. Rather, the trial court promised the parties they would have 40

minutes each for voir dire but cautioned them that after this time elapsed, it would “see where we

are.” VRP (Sept. 14, 2015) at 351.

       Olsen relies on State v. Brady, in which a trial court promised the parties a second round

of voir dire but then, part way through questioning, decided there was not enough time for a second

round of questioning and ended voir dire. 116 Wn. App. 143, 145-46, 64 P.3d 1258 (2003). We

held that the trial court abused its discretion by changing the planned questioning during the middle

of voir dire, entirely eliminating the promised second questioning period. Brady, 116 Wn. App.

at 147-48. But in contrast to Brady, here, the trial court acted entirely consistently with what it

told the attorneys: it never promised an additional 40 minutes for the second round of questioning.

Neither did it entirely forego a promised second round of questioning. Brady is distinguishable,

and we hold that the trial court did not abuse its discretion.

      IV. SUFFICIENCY OF THE EVIDENCE: COUNT II, MURDER BY EXTREME INDIFFERENCE

       Olsen and the State dispute whether sufficient evidence supports his conviction for murder

by extreme indifference.      Because we affirm Olsen’s conviction for count I, first degree

premeditated murder, we do not reach Olsen’s argument that there was insufficient evidence to

support his vacated conviction for count II, murder by extreme indifference.


                                                  22
Consol. Nos. 48294-1-II / 49554-6-II


                              V. ER 613(b) IMPEACHMENT OF CLARK

       Olsen argues that the trial court abused its discretion when it allowed extrinsic evidence—

Detective Delgado’s testimony—to impeach Clark’s testimony about Olsen’s whereabouts on the

evening of February 16. We hold that the trial court did not abuse its discretion.

       We review a trial court’s decision to admit extrinsic evidence under ER 613(b) for an abuse

of discretion. See State v. Dixon, 159 Wn.2d 65, 77, 147 P.3d 991 (2006). “Extrinsic evidence of

a prior inconsistent statement by a witness is not admissible unless the witness is afforded an

opportunity to explain or deny the same and the opposite party is afforded an opportunity to

interrogate the witness thereon, or the interests of justice otherwise require.” ER 613(b). Under

this rule, extrinsic evidence of the prior inconsistent statement is inadmissible if the witness admits

making the prior inconsistent statement. Dixon, 159 Wn.2d at 76. “If the witness does not admit

or deny making the statement but indicates doubt, lack of memory, or lack of knowledge, the

answer of the witness will be treated as a denial.” 5A KARL B. TEGLAND, WASHINGTON PRACTICE:

EVIDENCE LAW AND PRACTICE § 613.10, at 594-95 (6th ed. 2016).

       When Clark testified, she stated that she had slept during the afternoon of February 16 but

awoke by 6:00   PM—the    approximate time of the shooting—to prepare dinner. She remembered

Olsen being at home with her around 6:00 PM. In contrast, Clark had told Detective Delgado that

she was asleep that day from one to two hours after she arrived home with Olsen until 3:00         AM.

Earlier, the State had introduced evidence that Clark rented the second truck for Olsen at 2:07 PM

on February 16.

       The prosecutor questioned Clark about her statement to Detective Delgado, and the

following exchange occurred:


                                                  23
Consol. Nos. 48294-1-II / 49554-6-II


       [Prosecutor:] . . . Do you recall telling [detectives] that following your rental of
                     the U-Haul pickup truck you and Mr. Olsen hung out at your
                     apartment for one to two hours?
       [Clark:]      Possibly.
       [Prosecutor:] Do you remember telling the detectives that you went upstairs to rest
                     in your bedroom?
       [Clark:]      I might have said that.
       [Prosecutor:] Okay. Do you recall telling the detectives that you did not see Mr.
                     Olsen from the time you went up to your bedroom for one to two
                     hours after arriving home with the U-Haul until the time you came
                     downstairs at approximately 3:00 a.m. on February 17th, 2014?
       [Clark:]      Maybe my memory was a lot better then.

VRP (Sept. 17, 2015) at 916. Clark did not admit to making the prior inconsistent statement;

rather, she equivocally stated that she “possibly” or “maybe” gave an inconsistent account. The

purpose of inquiring about the prior inconsistent statement was unsatisfied because Clark did not

impugn her credibility when she failed to admit making the prior inconsistent statement. The trial

court was within its discretion to determine that Clark did not admit making the prior inconsistent

statement and accordingly to permit impeachment by extrinsic evidence.

                                         VI. SAG ISSUES

                                    A. SUPPRESSION MOTION

1.     TRAP AND TRACE ORDERS’ TARGETS

       Related to the three trap and trace orders obtained by police, Olsen argues that each order

was facially invalid because it listed Stevenson as the target. We disagree.

       Police obtained trap and trace orders successively for numbers associated with Stevenson,

Lind, and Olsen. Contrary to Olsen’s argument that each order lists Stevenson, the orders list,

respectively, Stevenson, Lind, and Olsen as targets. And the affidavits in support of the orders

targeting Lind and Olsen provide lengthy explanations of why Lind or Olsen were being targeted;



                                                24
Consol. Nos. 48294-1-II / 49554-6-II


they do not refer to Stevenson alone. Olsen’s arguments mischaracterize the record and we reject

them.

2.      TRAP AND TRACE ORDERS WITHOUT GEOGRAPHIC LIMITATION

        Related to the three trap and trace orders obtained by police, Olsen also argues that each

order was facially invalid because it stated it was “‘without respect to geographical limitations.’”

SAG at 26. We address only the court order targeting Olsen’s number and we hold that any error

in this regard was harmless.

        a.     LEGAL PRINCIPLES

        If evidence is admitted that was the product of an improper warrantless search, we apply

the constitutional harmless error standard to determine whether to reverse. State v. Smith, 165 Wn.

App. 296, 316, 266 P.3d 250 (2011), aff’d, 177 Wn.2d 533, 303 P.3d 1047 (2013).                   “A

constitutional error is harmless if the untainted evidence is so overwhelming that it necessarily

leads to a finding of guilt.” Smith, 165 Wn. App. at 316. But even under the constitutional

harmless error test, error in admitting evidence that is cumulative or duplicative of other properly

admitted trial evidence and adds little to the defendant’s guilt may be harmless. See Smith, 165

Wn. App. at 316.

        Former RCW 9.73.260(2) (1998) provides for trap and trace orders. At the time police

obtained the trap and trace orders in this case, former RCW 9.73.260(3) (1998) allowed police to

apply for “orders and extensions of orders authorizing the installation and use of pen registers and

trap and trace devices as provided in this section.” The trial court entered such an order if it found

“that the information likely to be obtained” would be “relevant to an ongoing criminal

investigation.” Former RCW 9.73.260(4) (1998).


                                                 25
Consol. Nos. 48294-1-II / 49554-6-II


       The trial court also had to find that there was probable cause that the device would “lead

to obtaining evidence of a crime” or “learning the location of a” witness or suspect for whose arrest

there was probable cause. Former RCW 9.73.260(4). The order had to specify information

including “[t]he number and, if known, physical location of the telephone line to which the pen

register or trap and trace device is to be attached and, in the case of a trap and trace device, the

geographic limits of the trap and trace order.” Former RCW 9.73.260(4)(c) (emphasis added).

       b.      ANALYSIS

       Here, all three trap and trace orders stated that they authorized the installation and use of a

trap and trace device on the target number to trace and identify the location and subscribers for

numbers used to place calls to the target number “without respect to geographic limitations.” CP

at 221, 236, 253. Before trial, Olsen brought a suppression motion related to all three trap and

trace orders, including the trap and trace order used to locate him. Olsen first claimed at the

suppression hearing that the orders were invalid for failure to specify the geographic limitations of

the trap and trace order. The trial court denied Olsen’s suppression motion. It rejected his

geographic limitations argument on the basis that Olsen did not have a privacy interest in his

location when he was arrested.

       We resolve this issue by assuming without deciding that the trap and trace order targeting

Olsen was facially invalid and accordingly that evidence obtained using this trap and trace order

was obtained in violation of Olsen’s constitutional rights.15 Here, Boutelier’s phone’s internet



15
   At the outset, as set forth above, Olsen lacked standing to contest the trap and trace order used
to locate Stevenson, and he provides no argument or claim that he had standing to contest the trap
and trace orders used to locate either Stevenson or Lind in his SAG. Accordingly, we consider
Olsen’s argument related to only the trap and trace order that targeted Olsen.

                                                 26
Consol. Nos. 48294-1-II / 49554-6-II


search history showed various searches for news related to the shooting on Canyon Road and a

visit to the “Washington Most Wanted website.” VRP (Sept. 17, 2015) at 997. The phone had

been used to send text messages containing hyperlinks to news articles about the shooting and

asking whether “they had tried to contact her” or “if there were crows outside.” VRP (Sept. 17,

2015) at 998. All this evidence as well as Olsen’s arrest in Idaho were used at trial to show Olsen’s

consciousness of guilt.

       However, this evidence added little to the determination of Olsen’s guilt and went to the

same issues as other, untainted trial evidence. See Smith, 165 Wn. App. at 316. Olsen himself

testified that he fled to Idaho and explained that he did so because he panicked following the

shooting. The evidence was also duplicative of multiple other sources of evidence that Olsen

covered up his involvement, fled the state after shooting Ward, and sought to avoid apprehension

for the shooting. Investigators found the rental truck that Olsen drove during the shooting with its

ignition lock destroyed and its license plate missing.

       Olsen himself testified that he threw away his firearm, changed his phone number, and

wrecked the ignition lock. Nelson recounted that Olsen said he was “getting out of Dodge” after

the incident. VRP (Sept. 16, 2015) at 691. And Lind said that Olsen told her to tell authorities

that she had seen Ward with a firearm so that Olsen could claim self-defense.

       Further, the other evidence of Olsen’s guilt at trial was overwhelming. Olsen’s self-defense

claim rested on his assertion that he shot over his shoulder at Ward as Olsen attempted to flee from

Ward, who was pursuing. But Gamm, another driver on the road, testified that he saw Olsen stop

his truck on the median and deliberately aim back at Ward’s car, shooting Ward. Not only this,

but no other witness at Olsen’s trial corroborated his claim that Ward pointed a firearm at Olsen


                                                 27
Consol. Nos. 48294-1-II / 49554-6-II


first; rather, both of Ward’s passengers testified that Olsen immediately began shooting when

Ward fled.

          We hold that any error in this regard was harmless under the constitutional harmless error

test.

3.        UNRELATED FEDERAL STATUTE

          In a single sentence, Olsen also argues that the pen register orders fail to meet the necessity

requirement of 18 U.S.C. § 2518. But Olsen fails to argue or provide authority that 18 U.S.C. §

2518, a statute governing the federal procedure for interception of electronic communications,

applies here. Accordingly, we reject Olsen’s argument.16

                             B. SUFFICIENCY OF THE EVIDENCE (COUNT I)

          Olsen asserts in a single sentence that the evidence was generally insufficient to convict

him of count I, first degree premeditated murder. This argument fails.

          As charged here, Olsen was guilty of first degree murder if “[w]ith a premeditated intent

to cause the death of another person, he . . . cause[d] the death of such person or of a third person.”

RCW 9A.32.030(1)(a). Premeditation is the “‘deliberate formation of and reflection upon the

intent to take a human life’” and may be proven by circumstantial evidence. State v. Gentry, 125

Wn.2d 570, 597, 888 P.2d 1105 (1995) (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284

(1982)).

          Viewed in the light most favorable to the State, the evidence showed the following: after

Olsen learned from Lind that Stevenson knew Ward, Olsen told Lind that Ward had stolen from




16
     The remainder of Olsen’s SAG issues related to the suppression motion are too vague to address.

                                                    28
Consol. Nos. 48294-1-II / 49554-6-II


Olsen and he wanted to know if Lind, Stevenson, and Kaplin could “get [Ward] to meet [them]

somewhere.” VRP (Sept. 16, 2015) at 719. Olsen brought a firearm with him, pulled up behind

Ward’s car, and chased after Ward when he fled. When Ward panicked and drove into oncoming

traffic, Olsen stopped his truck on the median, turned back toward Ward, aimed, and shot Ward in

the head, killing him. It is a reasonable inference from this evidence that Olsen deliberately formed

the intent to take Ward’s life. Accordingly, sufficient evidence supports Olsen’s conviction for

premeditated murder, count I.

                                C. ALLEGED EVIDENTIARY ERRORS

1.     LEGAL PRINCIPLES

       We review a trial court’s evidentiary rulings for an abuse of discretion. State v. Finch, 137

Wn.2d 792, 810, 975 P.2d 967 (1999). Generally “[a] party may assign evidentiary error on appeal

only on a specific ground made at trial.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125

(2007). Otherwise, we do not address issues first raised on appeal. Kirkman, 159 Wn.2d at 926.

And even if the trial court erred, we reverse for evidentiary error only if there is a reasonable

probability that the error materially affected the outcome of the trial. State v. Stenson, 132 Wn.2d

668, 709, 940 P.2d 1239 (1997).

       Under ER 403, relevant evidence may be excluded “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

2.     IN-LIFE PHOTOGRAPH

       Olsen argues that the trial court abused its discretion when it admitted one in-life

photograph of Ward because the State failed to authenticate the photograph and the photograph


                                                 29
Consol. Nos. 48294-1-II / 49554-6-II


was overly prejudicial. We hold that Olsen waived his failure-to-authenticate argument and that

any error under ER 403 was harmless.

       First, Olsen claims that the State failed to properly authenticate the photograph, which

showed Ward when he was about 21 years old with his family. But at trial, Olsen did not object

on the basis of the State’s failure to authenticate, and accordingly this argument is waived on

appeal. See Kirkman, 159 Wn.2d at 926.

       Second, Olsen claims that the trial court erred because the photograph, which showed Ward

with his family, was overly prejudicial. An in-life photograph of the victim is not inherently

prejudicial, particularly where, as here, the jury was shown autopsy photographs of the victim.

State v. Furman, 122 Wn.2d 440, 452, 858 P.2d 1092 (1993). In-life photographs are relevant to

show identification. Finch, 137 Wn.2d at 811.

       Here, the photograph of the victim was relevant to show identification. See Finch, 137

Wn.2d at 811. The presence of the victim’s family was unnecessary. However, in light of the fact

that there was only one in-life photograph, that the jury was also shown autopsy photographs of

the victim, and that this photograph was only one of many exhibits, including photographs shown

to the jury, we hold that the trial court did not abuse its discretion when it allowed the photograph.

See Finch, 137 Wn.2d at 811.

3.     PHOTOGRAPH OF WARD’S CELL PHONE

       Olsen argues that the trial court abused its discretion when it allowed a photograph of

Ward’s cell phone that showed Stevenson’s number as the last call received. We disagree.

       Over Olsen’s ER 403 objection, the State introduced a photograph of Ward’s cell phone to

verify the condition of the cell phone when it was recovered and to corroborate police testimony


                                                 30
Consol. Nos. 48294-1-II / 49554-6-II


about Stevenson’s call history on February 16. The photograph of Ward’s cell phone showed that

the most recent call was from Stevenson’s number and also showed previous communication

between Stevenson and Ward. The photograph further showed red markings that appeared to be

blood.

         Detective Salmon, who took the photograph, testified that he did so to document the cell

phone’s condition when he received it. Detective Salmon had never obtained Ward’s cell phone

records. Rather, it was his manual examination of Ward’s cell phone, showing that Stevenson had

called Ward around the time of the shooting that led Detective Salmon to suspect Stevenson’s

involvement. The State also introduced evidence from Stevenson’s phone records that showed

communications between Stevenson and Ward on February 16, thus corroborating Stevenson’s

testimony that he had been in communication with Ward that day.

         The photograph of Ward’s cell phone was minimally prejudicial because it had red

markings that appeared to be blood. However, the trial court was within its discretion to conclude

that the probative value of the photograph of the cell phone—which corroborated testimony about

the course of the investigation and Stevenson’s involvement in setting up Ward—was not

substantially outweighed by the danger of unfair prejudice. See ER 403. Accordingly, the trial

court did not abuse its discretion.

4.       BOUTELIER’S CELL PHONE

         Olsen argues that evidence taken from Boutelier’s cell phone, which was found when Olsen

was arrested, should not have been admitted because there was no showing that Olsen possessed

the cell phone. He argues both that the State never proved that he used the phone and that his right

to confront Boutelier, whom he claims was the witness against him, was violated. We disagree.


                                                31
Consol. Nos. 48294-1-II / 49554-6-II


        Under ER 104(b), when “the relevancy of evidence depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient

to support a finding of the fulfillment of the condition.” The confrontation clause bars the

admission of testimonial statements of a witness who does not appear at trial unless the defendant

had a prior opportunity for cross-examination and the witness is unavailable to testify. Crawford

v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

        Over Olsen’s objection on relevance grounds, the State introduced the contents of

Boutelier’s cell phone, including internet searches for news articles discussing the shooting. The

trial court admitted the evidence under ER 104(b) on the condition that the State’s witness would

explain that the cell phone was found when Olsen was arrested but was not on Olsen’s person.

And a detective subsequently explained this to the jury. Thus, the jury heard evidence that the cell

phone was in Olsen’s possession when he was arrested but no evidence about whether it was on

his person.

        The trial court was within its discretion to admit evidence taken from Boutelier’s cell phone

because the State introduced evidence sufficient to support a finding of the needed fact—that Olsen

had access to Boutelier’s cell phone because he possessed it when he was arrested. Further,

because the evidence was admitted on the condition that the State would show that Olsen

conducted the searches, whether Boutelier conducted the searches went to the evidence’s weight.

If the jury believed that Boutelier conducted the searches, the cell phone evidence would simply

be irrelevant to Olsen’s guilt. Accordingly, Olsen fails to show that the trial court abused its

discretion.




                                                  32
Consol. Nos. 48294-1-II / 49554-6-II


       As for Olsen’s confrontation clause argument, the State introduced the cell phone on the

theory that Olsen conducted the internet searches. Olsen’s confrontation clause rights were not

violated because under the State’s theory, the witness against him was himself.17 See Crawford,

541 U.S. at 53-54. Accordingly, Olsen’s confrontation clause argument fails.

5.     RECORDINGS FROM OLSEN’S CELL PHONE

       Olsen argues that the trial court abused its discretion when it allowed recordings from his

cell phone to be used as evidence without first requiring authentication of the recordings. We hold

that this issue was waived.

       When the State introduced the recordings from Olsen’s cell phone, Olsen objected on the

basis that the recordings were irrelevant and cumulative. He did not argue that the recordings were

not authenticated. Accordingly, Olsen waived his argument that the recordings were not properly

authenticated. See Kirkman, 159 Wn.2d at 926.

6.     CALL AND TEXT MESSAGE RECORDS SUMMARY

       Olsen argues that it was an abuse of discretion for the trial court to admit a summary of

witnesses’ February 15 and 16 call and text message records. He asserts that by putting names

with numbers, the State created new trial evidence. We reject this argument.

       At trial, Olsen objected to this exhibit on the same grounds. In response and after the trial

court expressed concern about pairing witnesses’ names with telephone numbers, the State




17
    For this reason, United States v. Adamson, 291 F.3d 606, 612 (9th Cir. 2002), is
distinguishable—that case involved limitations on the defendant’s ability to cross-examine his
brother, a witness against him.

                                                33
Consol. Nos. 48294-1-II / 49554-6-II


redacted the names from the summary. Thus, Olsen’s argument fails because the names were

redacted from the State’s summary.

7.     IN CAMERA REVIEW OF STINGRAY INFORMATION

       Olsen argues that the trial court erred because it allegedly granted a motion for in camera

review “of documents and information related to the . . . ‘Stingray’” but failed to actually conduct

an in camera review. Suppl. SAG at 1. We disagree.

       Olsen cites to a portion of the record in which the trial court granted Olsen’s discovery

request related to documents showing that the prosecutor’s office was aware that police were using

“wireless collection equipment/technology to conduct electronic surveillance in the State of

Washington.” VRP (Aug. 19, 2015) at 19. The prosecutor said that if any documents contained

information about ongoing investigations, “the State will provide that, but we may very well be

asking the Court to review that in camera prior to disclosure.” VRP (Aug. 19, 2015) at 23. But

the prosecutor did not ask the trial court to conduct in camera review, and Olsen mischaracterizes

the record when he states that the trial court actually granted a motion for in camera review.

Accordingly, we reject Olsen’s argument.

                                D. PROSECUTORIAL MISCONDUCT

       Olsen alleges a number of instances of prosecutorial misconduct. We hold that most of the

prosecutor’s comments were proper except for the prosecutor’s argument about attempted assault

and comments that Olsen’s expression was “evil.” However, the attempted assault argument was

not prejudicial. And the “evil” comments were not so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice.




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Consol. Nos. 48294-1-II / 49554-6-II


       To show prosecutorial misconduct, the defendant must show that the prosecutor’s conduct

was both improper and prejudicial in the context of the record and all the circumstances of trial.

In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). Where the defendant

objected, he must show that the prosecutor’s misconduct was substantially likely to affect the

verdict. State v. Allen, 182 Wn.2d 364, 375, 341 P.3d 268 (2015). Where the defendant did not

object, he must show that the misconduct was so flagrant and ill intentioned that an instruction

would not have cured the resulting prejudice. Glasmann, 175 Wn.2d at 704.

       Although a prosecutor may not express an independent, personal opinion that the defendant

is guilty, the prosecutor may argue that the testimony supports the defendant’s guilt. State v.

McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006). “‘[I]f the evidence indicates that the defendant

is a murderer or killer, it is not prejudicial to so designate him.’” McKenzie, 157 Wn.2d at 57

(quoting State v. Buttry, 199 Wash. 228, 250, 90 P.2d 1026 (1939)). The prosecutor is also entitled

to make a fair response to defense counsel’s arguments. State v. Brown, 132 Wn.2d 529, 566, 940

P.2d 546 (1997). However, closing argument that relies upon facts not in evidence is improper.

State v. Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008).

1.     ALLEGED INDEPENDENT EXPRESSIONS OF OLSEN’S GUILT

       Olsen points to a number of portions of the prosecutor’s closing argument that Olsen argues

constituted an impermissible independent opinion as to Olsen’s guilt. Olsen fails to show that the

prosecutor’s arguments were improper, as set forth below.

       a.      PROSECUTION’S THEORY OF THE CASE

       Olsen objects to several comments that constituted the prosecutor’s argument that Olsen

orchestrated a setup of Ward and then pursued the fleeing Ward to shoot him:


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Consol. Nos. 48294-1-II / 49554-6-II


       Ladies and gentlemen, the case you’ve heard about, the case about an ambush on
       February 16th, 2014, where Christopher Olsen lured and baited Robert Ward to the
       location at 176th and Canyon, and he put a bullet in his head, a bullet that went
       through both sides of his brain, bounced off his skull on the other side and killed
       him.
               There’s essentially two questions for you in this case. Question number one
       is on February 16th, 2014, did Christopher Olsen hunt and kill Robert Ward? The
       answer to that question is absolutely.

VRP (Oct. 2, 2015) at 2231; VRP (Oct. 2, 2015) at 2293 (“[I]t’s a case about an ambush.”). These

arguments were based on the State’s evidence that Olsen went to the Canyon Road shopping center

with the intent to murder Ward. Thus, the State’s arguments are not an improper, independent

opinion of Olsen’s guilt. See McKenzie, 157 Wn.2d at 53, 57.

       Olsen also argues that it was improper for the prosecutor to undermine Olsen’s claim that

it was unlikely he could purposely shoot Ward in the head:

                [After summarizing the defense’s theory that it was unlikely that Olsen was
       able to aim his gun so well that he shot Ward in the temple,] it’s a heck of a lot
       more astronomical that it happened that someone was just trying to, oh, I’m going
       to -- I’m going to fire some shots because I see a glimmer of a hint of a gun.

VRP (Oct. 2, 2015) at 2296. The prosecutor was entitled to argue that the evidence better

supported the prosecutor’s theory of the case than Olsen’s theory of the case, which included that

Olsen had been firing over his shoulder when his bullet struck Ward.

       Olsen alleges that it was improper for the prosecutor to rely on inferences from Olsen’s

actions after the shooting:

       What does he do after he ditches the gun? . . . [H]e takes off. Gets out of town. He
       goes to eastern Washington. His testimony was to go visit his mom. Something to
       do after you’ve killed somebody.
               ....
               . . . He’s covering his tracks because he murdered someone. Well, is that
       it? Well, does he do anything in Idaho? Yeah, he does. He Googles himself, his
       name, in connection with a shooting at 176th and Canyon. Detective Salmon


                                               36
Consol. Nos. 48294-1-II / 49554-6-II


         testified to that. He’s also . . . asking if the crows are coming for him, if anyone’s
         looking for him.

VRP (Oct. 2, 2015) at 2299. At trial, there was evidence of Olsen’s consciousness of guilt,

including his flight from the state, destruction of the truck’s ignition lock and license plate, and

throwing away his handgun and changing his phone number. The prosecutor properly argued that

the inferences from this evidence supported that Olsen murdered Ward. See McKenzie, 157 Wn.2d

at 53.

         Finally, Olsen argues that the prosecutor could not argue that Olsen “murder[ed]” Ward:

         Christopher Olsen committed murder. He committed it in a nefarious -- well, he
         committed it in one way, and it fits with three charges against him, including the
         lesser included.
                 . . . The first aggressor instruction tells you you don’t even get -- Christopher
         Olsen doesn’t even have that defense available to him of self-defense.

VRP (Oct. 2, 2015) at 2309. This argument included both the prosecutor’s theory of the case that

Olsen murdered Ward and that Olsen could not claim self-defense because he was the first

aggressor. It was not improper.

         b.      ALLEGED APPEAL TO PASSION

         Olsen appears to argue that it was improper for the prosecutor to argue,

                 During voir dire, my colleague, [the other prosecutor], asked about whether
         or not a prostitute could be raped. . . . And one of the jurors, potential jurors talked
         about how the issue would be consent.
                 Robert Ward never consented to having a bullet in his head. By using drugs,
         Robert Ward did not concede to being hunted down and having a bullet put through
         his brain. And that’s exactly what Christopher Olsen did to him.

VRP (Oct. 2, 2015) at 2307-08. Here, there was evidence that the victim was a drug dealer and

perhaps even a murderer. The prosecutor could remind the jury that the fact that the victim was




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Consol. Nos. 48294-1-II / 49554-6-II


unsympathetic did not bear on his killer’s guilt. In doing so, the prosecutor did not improperly

appeal to passion or prejudice. Accordingly, we hold that this argument was not improper.

       c.      RESPONSE TO OLSEN’S CLOSING ARGUMENT

       Olsen also argues that the prosecutor erred by responding to some of Olsen’s closing

arguments. From rebuttal closing argument, Olsen points to the following allegedly improper

argument:

       Now, the defense has some interesting theories here. They kind of have two. They
       contradict one another. I want you to think about that.
               ....
               . . . Because what the defense just argued in their closing argument is, well,
       Mr. Pederson is telling [Ward] to go left, and he goes through the -- through the
       intersection, so Christopher Olsen is going to take a right because now I’m just
       done. . . . I’m going to go on my way.
               But then at the same time they want to argue that now he’s trying to follow
       him so that he can now call police and see where he goes. You can’t follow
       somebody and leave that person at the same time. Those arguments fly in each
       other’s face, and the defense is proposing both of them. It’s absurd.

VRP (Oct. 2, 2015) at 2293-94. The prosecutor was allowed to point out logical inconsistencies

in response to Olsen’s closing argument. See Brown, 132 Wn.2d at 566. This argument was a

proper response to Olsen’s claim in his own closing that Olsen was both attempting to flee from

Ward and following Ward to learn where Ward lived.

       Olsen also relies upon the prosecutor’s response to Olsen’s theory that he was retreating:

               The defense counsel brought up the jury instruction that refers to the fact
       that you don’t have a duty to retreat, and that’s true. . . . But Mr. Olsen didn’t retreat.
       As soon as he killed somebody he got out of there and he got out of there as fast as
       he could. . . . Why do you retreat if it’s self defense?

VRP (Oct. 2, 2015) at 2297-98. This argument was a response to Olsen’s argument that he had a

right to be driving on the same streets as Ward and that the law imposed no duty of retreat. Again,



                                                   38
Consol. Nos. 48294-1-II / 49554-6-II


it was a proper response to Olsen’s closing argument and hence is not prosecutorial misconduct.

See Brown, 132 Wn.2d at 566.

2.     ALLEGED MISCHARACTERIZATIONS OF THE EVIDENCE

       Olsen also claims that the prosecutor argued facts not in evidence on a number of occasions

during closing argument.

       First, Olsen claims that the prosecutor supplemented the evidence when he stated that

“Christopher Olsen in that . . . truck pulls up right behind Robert Ward. Now, Robert Ward’s

reaction goes from confused to terrified.” VRP (Oct. 2, 2015) at 2239. But this closing argument

was proper because at trial, Pederson testified that Ward was unfamiliar with Lind, who

approached Ward’s car, and that Ward fled when Olsen began shooting at Ward’s car but then

“panicked” and drove into oncoming traffic. VRP (Sept. 21, 2015) at 1158. Pederson’s description

of events supports the prosecutor’s characterization of Ward’s reaction as confused, then terrified.

       Second, Olsen claims that it was improper for the prosecutor to characterize Olsen as

“livid” when he went to Nelson’s home and “rant[ed] about getting [car]jacked.” VRP (Oct. 2,

2015) at 2233. But again, this argument was properly based upon trial evidence—Nelson’s

testimony that Olsen was “pissed off” and described the details of how Ward had stolen his truck

on February 15. VRP (Sept. 16, 2015) at 686-87.

       Third, Olsen points to two occasions on which the prosecutor argued that Gamm, one of

the other drivers on Canyon Road, had described Olsen’s eyes “as cold, . . . as intentional.”18 VRP




18
  The prosecutor also twice argued that Gamm described Olsen’s eyes as “evil.” VRP (Oct. 2,
2015) at 2250, 2255. These comments mischaracterized Gamm’s testimony and are analyzed in
the next section.

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Consol. Nos. 48294-1-II / 49554-6-II


(Oct. 2, 2015) at 2250. The prosecutor also argued that Olsen’s “own intent was to commit death

[sic]” and that Olsen “didn’t care” that other drivers were endangered. VRP (Oct. 2, 2015) at 2255.

This argument was proper because it derived from Gamm’s description of Olsen’s eyes as “cold,

intentional, wanting to hurt something” and Gamm’s own fear that he would be struck by the

bullets. VRP (Sept. 22, 2015) at 1233.

       Fourth, Olsen claims that the prosecutor went beyond the trial evidence when he argued

that Olsen “didn’t care” that he was firing into a car with three occupants. VRP (Oct. 2, 2015) at

2254. But the prosecutor’s argument was proper because it was based on evidence that Pederson

and Bryant were in the car with Ward.

       Olsen fails to show that the prosecutor mischaracterized the evidence. Accordingly, the

prosecutor’s arguments set forth above were proper.

3.     NOT ERROR

       During closing arguments, the prosecutor stated twice that even an attempted assault could

suffice to establish felony murder. This argument was improper because the jury was not

instructed about attempted assault. When Olsen objected, the trial court instructed the jury that

“the prosecution argued you could consider an attempted assault” but “[y]ou are to disregard this

argument on attempted assault.” VRP (Oct. 2, 2015) at 2263. The trial court directed the jury to

the to-convict instruction for felony murder, count III.

       When these misstatements were brought to the trial court’s attention, it quickly gave a

curative instruction that not only instructed the jury to disregard that statement but focused the jury




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Consol. Nos. 48294-1-II / 49554-6-II


on the to-convict instruction given. We hold that the two misstatements about attempted assault

were not prejudicial because there was simply no error that occurred.19

4.     NOT PREJUDICIAL

       We agree with Olsen that two of the prosecutor’s comments were improper; however, as

discussed below, these instances were not prejudicial.

       Twice during closing, the prosecutor mischaracterized Gamm’s testimony and said that

Olsen’s eyes looked “evil” when Olsen shot Ward. VRP (Oct. 2, 2015) at 2250, 2255. This went

beyond Gamm’s testimony, which was that Olsen looked “cold, intentional, wanting to hurt

something.” VRP (Sept. 22, 2015) at 1233.

       Because Olsen did not object, the “evil” comments had to be so flagrant and ill intentioned

that no instruction could cure any prejudice. See Glasmann, 175 Wn.2d at 704. In other cases, we

have reversed and held that conduct was flagrant and ill intentioned where the prosecutor’s

comments permeated closing argument and repeatedly misstated the law or were inflammatory

and deliberately designed to persuade the jury to convict the defendant based on fabrication. See

State v. Venegas, 155 Wn. App. 507, 524-25, 228 P.3d 813 (2010); State v. Belgarde, 110 Wn.2d

504, 507-08, 755 P.2d 174 (1988); State v. Pierce, 169 Wn. App. 533, 556, 280 P.3d 1158 (2012).

Here, however, the improper argument consisted of two misstatements during a lengthy, otherwise

proper closing argument. Evaluated in context, the arguments were not so flagrant and ill

intentioned that an instruction could not have cured any resulting prejudice.



19
   Olsen relies on State v. Fisher in which our Supreme Court reversed for prosecutorial
misconduct because there was a substantial likelihood that the misconduct, to which the defendant
objected, affected the jury. 165 Wn.2d 727, 748-49, 202 P.3d 937 (2009). Here, in contrast, there
was simply no likelihood that the misconduct to which Olsen objected affected the jury.

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Consol. Nos. 48294-1-II / 49554-6-II


                            E. INEFFECTIVE ASSISTANCE OF COUNSEL

1.     LEGAL PRINCIPLES

       We review de novo claims of ineffective assistance of counsel, which present mixed

questions of law and fact. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail,

the defendant must show that his attorney’s performance was deficient and that the deficiency

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). If either prong of the test is not met, the defendant’s ineffective assistance of

counsel claim fails and the inquiry ends. Strickland, 466 U.S. at 697.

       Deficient performance is that which falls below an objective standard of reasonableness.

Strickland, 466 U.S. at 688. Conduct that can be characterized as a legitimate trial strategy or

tactic is not deficient. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).

2.     LESSER-INCLUDED OFFENSES

       Olsen asserts that his counsel rendered ineffective assistance when he failed to request a

first or second degree manslaughter instruction. We disagree.

       a.      STATE V. WORKMAN TEST

       First, applying the test from State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382

(1978), we hold that had he requested it, Olsen was entitled to an instruction on first degree, but

not second degree manslaughter.

       Whether a defendant is entitled to a lesser-included offense instruction is determined by

the two-pronged Workman test. Under the first prong, the elements of first and second degree




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Consol. Nos. 48294-1-II / 49554-6-II


manslaughter are necessary elements of premeditated murder.20 State v. Guilliot, 106 Wn. App.

355, 367, 22 P.3d 1266 (2001). Under the second prong, the evidence must support an inference

that the lesser crime was committed rather than the greater crime. State v. Henderson, 182 Wn.2d

734, 742, 344 P.3d 1207 (2015).

       Premeditated murder occurs when one “[w]ith a premeditated intent to cause the death of

another person . . . causes the death of such person or of a third person.” RCW 9A.32.030(1)(a).

First degree manslaughter occurs when one “recklessly causes the death of another person.” RCW

9A.32.060(1)(a). A person acts recklessly if he “knows of and disregards a substantial risk that a

wrongful act may occur” and that disregard “is a gross deviation from conduct that a reasonable

person would exercise in the same situation.” RCW 9A.08.010(1)(c).

       Second degree manslaughter occurs when one “with criminal negligence . . . causes the

death of another person.” RCW 9A.32.070(1).

       A person is criminally negligent or acts with criminal negligence when [he] fails to
       be aware of a substantial risk that a wrongful act may occur and [his] failure to be
       aware of such substantial risk constitutes a gross deviation from the standard of
       care that a reasonable person would exercise in the same situation.

RCW 9A.08.010(1)(d).

       The evidence in this case supports giving the lesser-included offense instruction of first

degree manslaughter. Olsen testified that he fired backward, over his shoulder, when he was

fleeing from Ward. If believed, this testimony would support that Olsen acted recklessly rather

than with a premeditated intent because Olsen knew of and disregarded a substantial risk that he



20
   The lesser-included offense needs to be a necessary element of at least one of the charged
offenses, but it does not need to be a lesser-included offense of all three charged offenses. Condon,
182 Wn.2d at 318-19.

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Consol. Nos. 48294-1-II / 49554-6-II


would kill Ward and in doing so grossly deviated from the conduct of a reasonable person in that

situation. See RCW 9A.08.010(1)(c).

       However, there was no evidence to support that Olsen acted negligently when he shot

Ward. Olsen’s version of events was based on self-defense and not that he was unaware of the

risk that he would kill Ward. See RCW 9A.08.010(1)(d).

       Thus, under Workman, Olsen was entitled to request a first degree manslaughter instruction

but not to a second degree manslaughter instruction. Because Olsen was not entitled to a second

degree manslaughter instruction, it was objectively reasonable to decide against requesting such

an instruction.     His ineffective assistance of counsel argument related to a second degree

manslaughter instruction accordingly fails. Next, we determine whether or not declining to request

the first degree manslaughter instruction was a legitimate trial strategy.

       b.         ALL OR NOTHING APPROACH

       Failure to request a lesser-included offense instruction is not deficient performance if the

decision is part of an “all or nothing approach.” Grier, 171 Wn.2d at 39. In Grier, the defendant

charged with second degree murder argued justifiable homicide as a defense. 171 Wn.2d at 28.

On appeal, the defendant claimed that it was ineffective assistance of counsel to not request

instructions on first and second degree manslaughter. Grier, 171 Wn.2d at 26-27, 29. Regarding

the legitimacy of an all or nothing approach, the Grier court explained,

       A defendant who opts to forgo instructions on lesser included offenses certainly has
       more to lose if the all or nothing strategy backfires, but she also has more to gain if
       the strategy results in acquittal. Even where the risk is enormous and the chance of
       acquittal is minimal, it is the defendant’s prerogative to take this gamble, provided
       her attorney believes there is support for the decision. . . . [A] criminal defendant
       who genuinely believes she is innocent may prefer to avoid a compromise verdict,
       even when the odds are stacked against her. Thus, assuming that defense counsel
       has consulted with the client in pursuing an all or nothing approach, a court should

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Consol. Nos. 48294-1-II / 49554-6-II


       not second-guess that course of action, even where, by the court’s analysis, the level
       of risk is excessive and a more conservative approach would be more prudent.

171 Wn.2d at 39. Grier held that the defendant had not received ineffective assistance of counsel

because she could not meet her burden to show deficient performance. 171 Wn.2d at 43.

       At the outset, there is nothing in the record to show that Olsen wanted his attorney to

request a manslaughter instruction. Thus, “we must proceed on the basis that defense counsel

consulted with” Olsen about the decision not to request a first degree manslaughter instruction and

that he agreed. Grier, 171 Wn.2d at 30.

       Olsen fails to meet his burden to show that he received ineffective assistance of counsel.

Not requesting the manslaughter instruction was conceivably part of a legitimate all or nothing

strategy to obtain an acquittal. As in Grier, here Olsen’s trial strategy was to argue self-defense,

which was a defense to all charged crimes. Olsen knew that Ward had a violent, deadly reputation

and was likely armed. Olsen said that he went to the Canyon Road shopping center to talk to Ward

and to get the stolen truck back. And Olsen claimed that he saw Ward raise a gun and thought that

Ward was chasing him when Olsen shot at Ward. Thus, as in Grier, “acquittal was a real

possibility, albeit a remote one.” 171 Wn.2d at 43.

       Olsen fails to show that not requesting a first degree manslaughter instruction was

objectively unreasonable. Rather, the decision was conceivably part of a legitimate trial strategy

to obtain an acquittal. Accordingly, we reject Olsen’s ineffective assistance of counsel claim.

3.     VOIR DIRE

       Olsen alleges that during voir dire, it was ineffective assistance of counsel not to excuse

potential juror number 25 for bias or to seek a new jury panel (1) because jurors discussed a “gut



                                                45
Consol. Nos. 48294-1-II / 49554-6-II


feeling” about his guilt and (2) because of the venire’s age and economic status. VRP (Sept. 14,

2015) at 319. We disagree with both arguments.

        A juror must do more than give equivocal answers to be removed when challenged for

cause; the juror must be unable to set aside preconceived ideas. State v. Noltie, 116 Wn.2d 831,

839, 809 P.2d 190 (1991).

        First, during the prosecutor’s questioning of the venire, the prosecutor stated the following:

                Is there anyone who has such -- and juror number 59, and I’m going to steal
        from what you said earlier today during individual questioning, had such a gut
        reaction, had such a just kind of feeling in their stomach, that as they sit here right
        now they’re thinking . . . Olsen is presumed innocent, but . . . I can’t really give that
        any meaning.

VRP (Sept. 14, 2015) at 397. Olsen argues that the “gut feeling” statement during individual

questioning thus tainted the entire venire and that his attorney should have sought a new panel of

jurors. To the contrary, rather than using it to taint the venire, the prosecutor used the “gut feeling”

statement to examine potential jurors who may have formed a preconceived notion that Olsen was

guilty. Olsen’s attorney’s failure to request a new panel was thus objectively reasonable and not

deficient performance.

        Second, during Olsen’s questioning, a potential juror discussed the definition of a “peer”

and stated, “If you look around here, you’ve got a young man being accused and you’ve got a lot

of older people. . . . I only worry about when it comes to peers. Like you’re saying, the only people

here are people who can afford to be here.” VRP (Sept. 14, 2015) at 407-09. Olsen’s counsel used

the juror’s concerns to catalyze a discussion about the right to a jury of one’s peers, in which other

jurors explained that they thought it was good to have a “mixture of different kinds of people . . .

because everybody has opinions” and that there were “other ways that [they] can relate to the


                                                   46
Consol. Nos. 48294-1-II / 49554-6-II


people in the room” than age. VRP (Sept. 14, 2015) at 409. Olsen argues that it was ineffective

assistance of counsel not to request a new panel because the juror’s concerns tainted the venire.

To the contrary, the discussion’s context reveals no prejudice to Olsen. Accordingly, it was

objectively reasonable to not request a new panel of jurors. Olsen fails to show deficient

performance in this regard.

       Third, at another point in Olsen’s questioning, juror number 25, who became the presiding

juror, expressed frustration about her previous experience on a jury because the defendant had

“walked” when the jury could not agree on a verdict. VRP (Sept. 14, 2015) at 400. When Olsen

questioned this juror, she showed that she did not have preconceived ideas. She clarified that she

understood there “needs to be a consensus” and that “if there’s not a consensus . . . you move on.”

VRP (Sept. 14, 2015) at 417. Because juror number 25 did not evince preconceived ideas that she

could not set aside, it was objectively reasonable for Olsen not to attempt to have juror number 25

excused.

       Olsen’s arguments about ineffective assistance during voir dire all fail because he does not

establish that his counsel’s performance was deficient.

4.     FAILURE TO MOVE FOR MISTRIAL

       Olsen argues that his counsel should have moved for a mistrial when a member of the

audience “yelled out the answer[] to a testifying witness.” SAG at 29. We hold that it was

objectively reasonable for counsel not to move for a mistrial.

       A mistrial motion should be granted only if the defendant has been so prejudiced that

nothing short of a new trial can insure the defendant receives a fair trial. State v. Rodriguez, 146

Wn.2d 260, 270, 45 P.3d 541 (2002).


                                                47
Consol. Nos. 48294-1-II / 49554-6-II


       Olsen’s argument refers to an instance during Ward’s aunt’s testimony when the aunt,

describing Ward’s relatives in the in-life photograph of Ward, could not recall Ward’s stepsister’s

last name. An audience member “yelled out” the name. VRP (Sept. 15, 2015) at 583.

       There is no conceivable prejudice to Olsen resulting from the audience member answering

the question about Ward’s stepsister’s last name. Accordingly, there was no likelihood that the

trial court would have granted a mistrial motion on this basis. See Rodriguez, 146 Wn.2d at 270.

It was not deficient performance for Olsen’s attorney to fail to move for a mistrial when the motion

would not have been granted, and thus Olsen’s claim of ineffective assistance fails.

5.     ACCOMPLICE TESTIMONY LIMITING JURY INSTRUCTION

       Olsen argues that his counsel should have requested WPIC 6.05, the accomplice testimony

limiting instruction. We hold that Olsen fails to show that his counsel’s performance was deficient.

               Testimony of an accomplice, given on behalf of the [State] should be
       subjected to careful examination in the light of other evidence in the case, and
       should be acted upon with great caution. You should not find the defendant guilty
       upon such testimony alone unless, after carefully considering the testimony, you
       are satisfied beyond a reasonable doubt of its truth.

WPIC 6.05.21 Failure to request the instruction is not ineffective assistance of counsel if other trial

evidence substantially corroborates the accomplice testimony. State v. Sherwood, 71 Wn. App.

481, 485, 860 P.2d 407 (1993).

       Olsen does not specify which accomplice’s testimony would have supported a limiting

instruction. At his trial, Kaplin, Stevenson, and Lind all testified for the State. They described the

events leading up to the shooting, including Olsen’s request that they arrange for Ward to wait at



21
  A comment to this instruction states that it is “not limited to those cases in which a witness is
charged as an accomplice.” WPIC 6.05, cmt. at 197.

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Consol. Nos. 48294-1-II / 49554-6-II


the Canyon Road shopping center. For his part, Olsen testified that Lind “told [him]” to go to the

Canyon Road shopping center and said that he could meet Ward there to recover his truck. VRP

(Oct. 1, 2015) at 2078. In closing, the prosecutor referenced Kaplin’s, Stevenson’s, and Lind’s

testimony as evidence of Olsen’s premeditated intent to kill Ward.

       But Stevenson’s, Kaplin’s, and Lind’s accounts of February 16 were substantially

corroborated. The State provided testimony of extensive communication between Stevenson and

Kaplin, Lind, Olsen, and Ward on February 16, and an exhibit summarizing the phone records of

Stevenson and Kaplin, Lind, Olsen, and Ward on that day. By showing extensive communication

between Stevenson and Kaplin, Lind, Olsen, and Ward on February 16, the State substantially

corroborated the testimony of Stevenson, Kaplin, and Lind about events leading up to the shooting,

including their part in orchestrating the scheme. Further, Pederson, one of the passengers in

Ward’s car, corroborated Stevenson’s and Kaplin’s testimony that they met with Ward on February

16 and directed him to wait at the Canyon Road shopping center.

       Because there was substantial corroboration of Stevenson’s, Kaplin’s, and Lind’s

testimony, counsel’s failure to request WPIC 6.05 was not ineffective assistance. See Sherwood,

71 Wn. App. at 485.

6.     FAILURE TO CALL INVESTIGATOR

       Olsen asserts that counsel was ineffective because he forgot to have Olsen’s investigator

testify that Pederson had previously stated that Ward carried a gun and had used it to rob people.

We disagree.

       At trial, when Olsen cross-examined Pederson, Pederson claimed that he could not

remember saying that Ward had committed armed robbery in the past and carried a firearm.


                                               49
Consol. Nos. 48294-1-II / 49554-6-II


Olsen’s attorney then said, “[A]t some point later on I’ll have to put on an investigator just to create

a record concerning his interview with him.” VRP (Sept. 22, 2015) at 1192. But Olsen’s attorney

never called the investigator as a witness. Instead, Olsen’s attorney called another witness who

testified about Ward’s reputation for violence and habit of carrying a firearm. Olsen himself also

testified that he knew Ward had killed someone, sold drugs, and was generally dangerous.

        Because there were other sources that subsequently testified about Ward’s dangerousness,

commissions of armed robbery, and habit of carrying a gun, it was a legitimate trial tactic not to

call Olsen’s investigator to testify about Pederson’s prior statements. Accordingly, Olsen’s

ineffective assistance of counsel claim fails.

7.      FAILURE TO QUESTION OR EXCUSE JUROR

        Olsen argues that his counsel was ineffective because he should have questioned or sought

to have excused a juror 22 who observed Olsen in shackles. We disagree.

        “It is well settled that a defendant in a criminal case is entitled to appear at trial free from

all bonds or shackles except in extraordinary circumstances.” Finch, 137 Wn.2d at 842. Shackling

a defendant tends to prejudice the jury against the accused. Finch, 137 Wn.2d at 845. However,

a jury’s “brief or inadvertent glimpse of a defendant in restraints inside or outside the courtroom

does not necessarily constitute reversible error” and does not “rise to the level of a due process

violation absent a showing of actual prejudice.” In re Pers. Restraint of Davis, 152 Wn.2d 647,

697-98, 101 P.3d 1 (2004).



22
   Olsen argues that juror 4 saw him in shackles and, therefore, should have been excused. But the
record does not support that juror 4 observed Olsen in shackles—the prosecutor and Olsen’s
attorney both agreed that the juror was looking at his cell phone. Accordingly, we reject this
argument.

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Consol. Nos. 48294-1-II / 49554-6-II


        At one point during Olsen’s trial, juror 10 “forgot to stay in the jury room” and was sitting

on benches outside when Olsen was transported during a recess. VRP (Sept. 17, 2015) at 891-92.

Olsen’s attorney thought that the juror observed Olsen in shackles. The trial court kept juror 10

separate from the other jurors immediately after and asked Olsen’s attorney if he wanted to

question her, but Olsen’s attorney declined.

        Here, one juror potentially saw Olsen in shackles outside the courtroom while Olsen was

being transported. Olsen provides no evidence or argument as to any possible prejudice from this

potential glimpse of him in shackles. Indeed, although Olsen argues that his counsel should have

“questioned” the juror, questioning the juror would have merely served to draw attention to the

incident and that Olsen was shackled while being transported. Without any evidence of possible

prejudice and in light of the rule that a brief glimpse of a defendant in shackles is not necessarily

reversible error, Olsen fails to show that his counsel’s decision not to question or excuse the juror

was deficient performance.

8.      FAILURE TO CROSS-EXAMINE LIND, KAPLIN, AND STEVENSON ABOUT PLEA AGREEMENT

        Olsen argues that his counsel was ineffective because he should have cross-examined Lind,

Kaplin, and Stevenson to bring out that they had received plea deals for their testimony. We hold

that counsel’s performance was not deficient.

        Before trial, Olsen’s attorney filed a motion in limine to bar testimony by the State about

the plea deals. He referenced the plea agreements’ requirement that the witnesses testify truthfully

and claimed that discussion of the plea deals would bolster these witnesses’ credibility and

constitute improper vouching. This was a reasonable trial tactic and thus, his claim of ineffective

assistance fails on this basis.


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Consol. Nos. 48294-1-II / 49554-6-II


9.      FAILURE TO CROSS-EXAMINE LIND ABOUT CRIMINAL HISTORY

        Olsen argues that his counsel was ineffective because he should have cross-examined Lind

about her criminal history. We disagree.

        In general, prior convictions may be used to attack a witness’s credibility only if the witness

has been convicted of a crime punishable by more than one year in prison or involving dishonesty

or false statement. ER 609(a).

        Lind apparently had a domestic violence related fourth degree assault conviction and third

degree malicious mischief conviction from 2006. Fourth degree assault and third degree malicious

mischief are both misdemeanors and neither is a crime of dishonesty or false statement. See former

RCW 9A.36.041 (1987); RCW 9A.48.090. Accordingly, these convictions were not admissible

under ER 609(a) to impeach Lind’s credibility. Because the trial court would not have allowed

inquiry into Lind’s prior convictions, Olsen fails to show that his counsel performed deficiently in

this regard.

                                       F. JURY INSTRUCTIONS

        Olsen argues that the trial court erred when, over his objection, it (1) added additional

language to clarify WPICs 2.04 and 2.04.01, (2) declined to give WPIC 17.02 regarding lawful

force, and (3) did not give a multiple assailant instruction. His arguments related to WPICs 2.04

and 2.04.01 and the multiple assailant instruction fail, and we do not reach the issue related to

WPIC 17.02.

1.      WPICS 2.04 AND 2.04.01

        Olsen argues that the trial court erred when it added language to WPICs 2.04.01 and 2.04

over Olsen’s objection. We disagree.


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Consol. Nos. 48294-1-II / 49554-6-II


       Absent a legal error, we review a trial court’s decision regarding an instruction’s wording

for an abuse of discretion. In re Det. of Taylor-Rose, 199 Wn. App. 866, 880, 401 P.3d 357 (2017),

review denied, 189 Wn.2d 1039 (2018).

       WPIC 2.04.01 defines “great personal injury” for the purpose of justifiable homicide:

“Great personal injury means an injury that the slayer reasonably believed, in light of all the facts

and circumstances known at the time, would produce severe pain and suffering if it were inflicted

upon either the slayer or another person.” WPIC 2.04 defines “great bodily harm” for the purpose

of assault: “Great bodily harm means bodily injury that creates a probability of death, or that

causes significant serious permanent disfigurement, or that causes a significant permanent loss or

impairment of the function of any bodily part or organ.”

       Here, the jury was given both the justifiable homicide instruction, which referred to the

defendant’s belief that the person slain intended to inflict death or “great personal injury,” and the

first degree assault instruction, which referred to the defendant’s intent to inflict “great bodily

harm.” CP at 519, 527. Fearing that the jury would be confused by instructions defining both

“great personal injury” and “great bodily harm,” the trial court added some language to WPIC

2.04.01 and WPIC 2.04. VRP (Sept. 30, 2015) at 2033. To WPIC 2.04.01, the trial court added

that great personal injury applied “[w]hen considering self-defense.” CP at 527. And to WPIC

2.04, the trial court added that great bodily harm applied “[w]hen considering the crime of assault

in the first degree.” CP at 520.

       The trial court’s modifications properly tied the definitions of “great personal injury” and

“great bodily harm” to justifiable homicide and first degree assault. CP at 520, 527. In making

these modifications, the trial court did not abuse its discretion.


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Consol. Nos. 48294-1-II / 49554-6-II


2.     WPIC 17.02

       Olsen next argues that the trial court erred when it declined to give his requested WPIC

17.02 in addition to the court giving WPIC 16.02. We decline to reach this argument.

       WPIC 16.02 defines justifiable homicide, a defense to murder. Homicide is justifiable if

“the slayer reasonably believed that the person slain . . . intended” to commit a felony or inflict

death or great personal injury. WPIC 16.02. WPIC 17.02, in contrast, describes lawful force for

charges other than homicide. Force is lawful if the defendant reasonably believed he was “about

to be injured” in preventing or attempting to prevent an offense against the person. WPIC 17.02.

       Olsen argues that the trial court erred because it should have given WPIC 17.02 in addition

to WPIC 16.02. The trial court declined to do so and instructed the jury only under WPIC 16.02.

Any error in this decision would have affected Olsen’s conviction only for felony murder, count

III, which was vacated. Accordingly, we do not reach this issue.

3.     MULTIPLE ASSAILANTS INSTRUCTION

       Olsen argues that the trial court erred because it did not instruct the jury that Olsen faced

multiple assailants; he relies upon State v. Irons, 101 Wn. App. 544, 4 P.3d 174 (2000). We

disagree.

       We review a trial court’s decision whether to give a jury instruction for an abuse of

discretion if the decision was based on a factual determination. Condon, 182 Wn.2d at 315-16. In

Irons, the self-defense instructions given did not make clear to the jury that it could consider the

fact that the defendant was faced with multiple assailants. 101 Wn. App. at 552.

       During the jury instruction conference, Olsen unsuccessfully argued that the instructions

should include language that Olsen could have reasonably feared Ward’s passengers. The trial


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Consol. Nos. 48294-1-II / 49554-6-II


court was within its discretion not to include language about perceived danger from others because,

at Olsen’s trial, there was no evidence that he felt threatened by Pederson or Ward. Olsen’s

testimony was that it was Ward who he knew to be dangerous, saw with a weapon, thought would

start shooting, and was driving the car.

       Irons is not to the contrary because in that case, there was evidence that the defendant

actually felt threatened by multiple assailants. Accordingly, we reject Olsen’s claim.

4.     LIMITING INSTRUCTION

       Olsen appears to assert that the trial court erred because it did not give a limiting instruction

about Kaplin’s testimony. We disagree.

       It is well settled that the trial court is not required to sua sponte give a limiting instruction.

State v. Russell, 171 Wn.2d 118, 123, 249 P.3d 604 (2011).

       Kaplin, one of the State’s witnesses who participated in the “set up” of Ward, claimed not

to know that Olsen would shoot Ward on February 16. The prosecutor then asked Kaplin about

his statements to investigators before trial, implying that Kaplin was not credible. In response to

the prosecutor’s questions, Kaplin admitted that he had not initially been truthful when he spoke

to law enforcement.

       Olsen then objected that it was irrelevant whether or not Kaplin had lied to law enforcement

about his knowledge of events in the case. The trial court overruled the objection, although it

stated that “[a]pparently at some point I have to provide the jury with a limiting instruction

specifying the purpose of the evidence that is going to be allowed.” VRP (Sept. 16, 2015) at 785.

Kaplin subsequently explained that he was initially not truthful because he was “nervous and

scared” when he heard that Ward had been killed. VRP (Sept. 16, 2015) at 786. But Kaplin never


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Consol. Nos. 48294-1-II / 49554-6-II


testified that he had previously told investigators that he knew Olsen was going to shoot Ward.

No party requested a limiting instruction nor was one provided to the jury.

          Because no party requested the limiting instruction and because a trial court is not required

to give a limiting instruction sua sponte, we hold that there was no error. See Russell, 171 Wn.2d

at 123.

                                    G. MISMARKED VERDICT FORM

          Olsen argues that the jury failed to find an element of the offense because it wrote his name

in the blank for “[g]uilty” or “[n]ot [g]uilty” on the verdict, then crossed his name out and wrote

“[g]uilty.” CP at 536, 540, 542. We disagree.

          Although the State had the burden to prove that Olsen was the defendant, the verdict form

does not contain the elements of the offense. Olsen was the only defendant in his case, and the

“[t]o-convict” instructions listed as an element for the State to prove that “the defendant”

committed the crime. E.g., CP at 508. It is clear that the jury found Olsen guilty, even if they

were confused over whether to write his name or the word “guilty” on the verdict form.

                                    H. LOCATION OF THE OFFENSE

          Olsen argues that the State failed to prove that the crime occurred in Washington because

Stevenson did not state as much in his testimony. We disagree.

          The State provided ample evidence to establish that all events except part of Olsen’s

subsequent flight occurred in Washington—multiple witnesses testified to this fact. Olsen’s

argument lacks merit.




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Consol. Nos. 48294-1-II / 49554-6-II


                                 I. CROSS-EXAMINATION OF OLSEN

       Olsen asserts that the trial court erred because it allowed the State to cross-examine him

concerning his subsequent flight to Idaho, which was beyond the scope of his direct testimony.23

We hold that the trial court did not err.

       We review de novo whether a defendant waived his right against self-incrimination by

taking the stand; otherwise, we review a ruling on the scope of cross-examination for an abuse of

discretion. State v. Hart, 180 Wn. App. 297, 303-04, 320 P.3d 1109 (2014). When an accused

takes the stand voluntarily, he waives the right against self-incrimination as to matters concerning

which cross-examination is otherwise proper. Hart, 180 Wn. App. at 304. But inquiry into

attenuated matters that subject the defendant to criminal liability is not allowed. Hart, 180 Wn.

App. at 304.

       Olsen limited his direct testimony to events up to when the shooting occurred and did not

testify about his subsequent flight to Idaho. Over Olsen’s objection, the trial court allowed the

State to inquire into subjects bearing on Olsen’s consciousness of guilt, namely the condition of

the second rental truck, his throwing away his handgun and changing his phone number, his flight

to Idaho, and his statements to Clark that he did what he had to do to keep his family safe. Olsen

claimed that it violated his right against self-incrimination to ask him about events after the

shooting because “in theory” the events “could be separate charges.” VRP (Oct. 1, 2015) at 2052.




23
   Olsen also appears to argue that the trial court’s decision improperly shifted the burden to him
to disprove that he acted in self-defense. It is unclear how allowing the State to inquire into events
that occurred after the shooting shifted to Olsen the burden to disprove self-defense.

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Consol. Nos. 48294-1-II / 49554-6-II


        Evidence of his flight and destruction of evidence was relevant as evidence of

consciousness of guilt. Thus, the trial court was within its discretion to allow the State to inquire

about these topics. See Hart, 180 Wn. App. at 304. Further, there is nothing in our record to

support that Olsen’s testimony subjected him to potential criminal liability for charges other than

homicide. Accordingly, Olsen fails to show that his right against self-incrimination was violated.

                                           J. JURY POLLING

        Olsen argues that the trial court erred when it denied his request to individually poll the

jurors. We disagree.

        “When a verdict or special finding is returned and before it is recorded, the jury shall be

polled at the request of any party or upon the court’s own motion. If at the conclusion of the poll,

all of the jurors do not concur, the jury may be directed to retire for further deliberations or may

be discharged by the court.” CrR 6.16(a)(3).

        At Olsen’s trial, when he requested to individually poll jurors, the trial court asked the

jurors as a group whether they agreed with the verdict and asked each individual juror to raise his

or her hand. CrR 6.16(a)(3) does not specify how the jurors must be polled. Here, the record

shows that all parties and the trial court agreed that each juror raised his or her hand for all verdicts.

Olsen fails to show that the trial court failed to comply with the court rule or that polling the jury

in this way prejudiced him in any manner, given that each juror responded individually to the

court’s polling.

                                       K. CUMULATIVE ERROR

        Olsen argues that the cumulative effect of the errors in his case merits reversal. We

disagree.


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Consol. Nos. 48294-1-II / 49554-6-II


       Cumulative error may apply where each error, standing alone, is harmless. State v. Weber,

159 Wn.2d 252, 279, 149 P.3d 646 (2006). It does not apply where the errors are few and have

little impact on the trial’s outcome. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).

       We hold that it was prosecutorial misconduct to state that an attempted assault could suffice

to establish felony murder and to mischaracterize Gamm’s testimony as saying that Olsen looked

“evil.” Further, we assume without deciding that it was error to admit evidence that Olsen was

arrested in Idaho and evidence from Boutelier’s cell phone. However, even taken cumulatively,

these errors were few and had little impact on the trial’s outcome. We reject Olsen’s cumulative

error claim.

                                 L. MATTERS OUTSIDE THE RECORD

       Several of Olsen’s additional arguments depend on matters outside the record. Where

allegations rest upon evidence outside the record on review, we cannot address the allegations on

direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

       First, Olsen argues that prejudicial error occurred, in violation of the confrontation clause

and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), or constituting juror

tampering, when a juror found information on a court-provided note pad. The record contains only

the trial court’s mention that a juror found “a little bit of information from an old case” in his trial

court-provided notepad and that neither party was “concerned about it.” VRP (Sept. 17, 2015) at

891. Without knowing what information the juror found in the notepad, we cannot determine the

merits of this claim because it relies upon matters outside the record.

       Second, Olsen asserts that failure to disclose a plea agreement between Bryant and the

State violated Brady. The record contains no reference to a plea agreement between Bryant and


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Consol. Nos. 48294-1-II / 49554-6-II


the State before September 21, 2015. On September 21, during trial, the State moved for an order

granting Bryant immunity for his testimony. Until that point, according to Olsen’s attorney, Bryant

had asserted that he would not be testifying in the matter. Because we cannot discern whether the

State withheld evidence about whether Bryant having a plea agreement before September 21, this

matter relies upon alleged evidence outside the record.

       Third, Olsen asserts that failure to disclose a plea agreement between Pederson and the

State violated Brady. There is nothing in the record to show whether Pederson had a plea

agreement with the State or if he did, that the State failed to disclose this information. This, again,

relies upon matters outside the record.

       Fourth, Olsen argues that he had a right to be present when the trial court addressed the

jury, including when they were sent to deliberate and when instructions were read, that was

violated. But it is unclear from the record whether Olsen was, in fact, present when jury

instructions were read or when the jury was sent to deliberate. This relies upon matters outside

the record.

       Fifth, Olsen argues that his attorney should have brought out Kaplin’s and Stevenson’s

criminal histories and probation status. Olsen does not explain what crimes Kaplin or Stevenson

had committed that his counsel should have argued were admissible. And after a diligent search

of the record, these facts appear to be outside the record.

                                   M. TOO VAGUE TO ADDRESS

       Olsen argues that the trial court erred when it did not instruct the jury and explain “about

eyewitness testimony.” SAG at 33. We decline to address this issue because it is too vague to

address.


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Consol. Nos. 48294-1-II / 49554-6-II


                      N. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

       Lastly, Olsen asserts in his SAG that his appellate counsel rendered ineffective assistance.

He reasons that his SAG raises meritorious issues that his appellate counsel overlooked. But even

if Olsen’s SAG raised meritorious issues, we would grant relief, and accordingly his direct appeal

would succeed. Olsen can show no possible prejudice from failure to raise SAG issues in the

appellant’s brief, and we reject his claim of ineffective assistance of appellate counsel.

                      PART TWO – PERSONAL RESTRAINT PETITION

       In his PRP, Olsen provided evidence that the State’s witness Bryant recanted his trial

testimony. Olsen argued that the recantation merits a new trial under RAP 16.4(c)(3). Based on

our initial review, we remanded for a reference hearing, primarily for the trial court to rule on the

credibility and reliability of Bryant’s recantation testimony. But Bryant did not testify and instead

he claimed the protection of the Fifth Amendment. Therefore, the trial court was unable to make

any determination regarding the credibility and reliability of Bryant’s testimony. Thus, Olsen has

failed to show he is entitled to a new trial based on new admissible evidence.

       In his post-reference hearing briefing, Olsen argues that (1) the superior court’s findings of

fact are not supported by substantial evidence, (2) the superior court erred by sustaining Bryant’s

invocation of the Fifth Amendment, (3) Olsen is entitled to a new trial based on the recantation

letter, (4) the prosecutor’s office committed a Brady violation by delaying reaching a final plea

agreement with Bryant, and (5) the State’s use of an on-site simulator device violated the Fourth

Amendment.

       We hold that (1) the superior court’s findings of fact regarding the recantation letter are

superfluous, (2) the superior court did not err by sustaining Bryant’s Fifth Amendment invocation,


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(3) Olsen failed to establish that he has new admissible, reliable, and credible evidence, and (4)

Olsen’s Brady violation claim is outside the scope of the reference hearing and therefore is not

considered.24 Accordingly, we hold that Olsen is not entitled to a new trial.

                                      I. RECANTATION FACTS

        In support of his PRP, Olsen provided a letter and statement from Bryant, written in

November 2015, within a month after Olsen’s sentencing. Bryant wrote Olsen’s mother to say

that after he learned about Olsen’s lengthy sentence, “I felt respons[i]ble for a false testimony [sic]

so I took the liberty to write a truthful statement.” PRP at 11. Olsen’s mother sent Bryant’s letter

to Olsen’s trial attorney.

        In his statement, Bryant recants his trial testimony and states that he does so “under penalty

of perjury.” PRP at 14. He states that he and Pederson “lied to police,” and Bryant “lied at Mr.

Olsen’s trial” because Bryant feared that unless he testified favorably for the State, he “would not

receive a favorable plea bargain on . . . unrelated robbery charges.” PRP at 12.

        Contrary to Bryant’s trial testimony, his statement sets forth that when Olsen followed

Ward, Ward “pull[ed] a gun out and point[ed] [it] back between the seats at the truck behind”

them. PRP at 13. Bryant then heard gunshots. At the intersection,

        [Ward] continued driving and drove through a red light and [Pederson] & I told
        [Ward] to go left. [Ward] started to go left until he saw the guy in the truck [Olsen]
        go right.
        [Ward] then swerved right to go after the guy in the truck and we ended up in
        oncoming traffic. At that point I was so [afraid] we were going to crash that I
        looked up and the last thing I saw was [Ward] pointing his gun at the truck, like as
        to shoot through the windshield. At that moment is when I heard the truck fir[ing]
        more shots. That’s when I believe [Ward] to be shot.


24
  We addressed Olsen’s argument regarding Carpenter in the direct appeal portion of our decision,
supra.

                                                  62
Consol. Nos. 48294-1-II / 49554-6-II


       ....
       The truth of the matter is that all Mr. Olsen did was follow us out of the parking lot
       and he never fired his gun until Robert Ward pointed his gun at him and was trying
       to get it to fire.
       Olsen ended up being the one who was fleeing with [Ward] chasing him. Not the
       other way around. If Mr. Olsen didn’t defend himself it would [have] been bad for
       him.

PRP at 13-14.

       Olsen also provided his trial attorney’s letter to his appellate counsel regarding Bryant’s

recantation. Olsen’s trial attorney said that in April 2016, he interviewed Bryant, who admitted

that he lied at Olsen’s trial and claimed to have written the recantation statement of his own free

will. Olsen’s trial attorney then provided Olsen’s appellate attorney with the statement.

       Olsen filed a motion for relief from judgment under CrR 7.8(b)(2). The trial court

transferred Olsen’s motion to this court as a PRP, and we consolidated it with Olsen’s direct appeal.

After review, we concluded that “Olsen has met his threshold burden of providing competent and

admissible evidence that creates a factual basis for his allegations,” but we could not determine

Bryant’s credibility from the record. Order Transferring Pet. to Superior Ct. for a Reference Hr’g,

State v. Olsen, Consol. Nos. 48294-1-II, 49554-6-II, at 7 (Wash. Ct. App. Feb. 7, 2018).

       On February 7, 2018, we issued an “Order Transferring Petition to Superior Court for a

Reference Hearing” stating,

       The superior court shall enter findings of fact regarding whether Bryant testifies
       consistently with his statement submitted in support of Olsen’s PRP and whether
       Bryant’s recantation is credible and reliable. In doing so, the superior court shall
       focus upon the circumstances affecting reliability and credibility set forth in [In re
       Personal Restraint of Clements, 125 Wn. App. 634, 644 n.3, 106 P.3d 244 (2005)],
       and In re Personal Restraint of Spencer, 152 Wn. App. 698, 715, 218 P.3d 924
       (2009), and any other circumstances relevant to the inquiry.




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Consol. Nos. 48294-1-II / 49554-6-II


Order Transferring Pet. to Superior Ct. for a Reference Hr’g, State v. Olsen, Consol. Nos. 48294-

1-II, 49554-6-II, at 8 (Wash. Ct. App. Feb. 7, 2018).

       On March 21, the parties appeared for the reference hearing. Bryant had an attorney who

said that Bryant would assert his Fifth Amendment rights to protect himself from perjury.

       Olsen called Bryant as a witness. The trial court did not allow Bryant to assert a blanket

Fifth Amendment privilege, but rather allowed him to assert the Fifth Amendment on a question-

by-question basis. Bryant stated that he was currently serving a 108-month sentence for first

degree robbery. Bryant acknowledged that he received a mitigated exceptional sentence for the

robbery case by agreement with the State. When asked if he received an exceptional sentence

down because of his testimony against Olsen, Bryant responded, “I don’t know.” 1 VRP (May 21,

2018) at 51. The superior court entered copies of the plea documents as exhibits.

       According to exhibits 2 and 3, Bryant received the mitigated exceptional sentence on

October 27, 2015. Olsen was sentenced a few days earlier on October 23. For the robbery charge,

Bryant had an offender score of 9 plus and he received an exceptional sentence of 108 months

“which is 21 months less than the low end of the guideline range of 21 months.” Ex. 3 at 2. The

prosecutor stated,

       [Bryant] has testified in a murder case during which he had been a passenger in a
       car being driven by the victim and hence witnessed the murder. There was no
       agreement or arrangement requested by [Bryant] nor granted by the State in relation
       to this testimony. However the murder trial has now taken place and I have inquired
       from       the    [deputy    prosecuting     attorney]    who      handled      the




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Consol. Nos. 48294-1-II / 49554-6-II


       murder case to find out what the case was about, to what extent did the Defendant
       testify, and to what extent did the Defendant place himself at risk by doing so.[25]

Ex. 3 at 2. Also included in exhibit 2 was an order to seal the (1) prosecutor’s statement regarding

amended information and the (2) findings of fact and conclusions of law for the exceptional

sentence.

       Bryant asserted his Fifth Amendment privilege when asked about the recantation letter and

his interview with the attorney regarding the letter. Bryant denied ever meeting Olsen.

       Olsen then called the private investigator who was present during the phone interview with

Bryant regarding the recantation letter. The private investigator said that during the phone

interview the person identified himself as Bryant and he ratified what was said in the letter.

According to the private investigator, Bryant said, “[N]o one had threatened him or had asked him

to change his story and that he wrote the letter of his own freewill.” 1 VRP (May 21, 2018) at 67.

The recantation letter was admitted as exhibit 1.

       Olsen’s attorney requested that the superior court grant Bryant immunity, but the superior

court denied the request. The State moved to admit exhibit 18 for the purposes of the hearing,

which is a transcribed interview of Bryant taken by detectives a few days after the shooting.

       The day after the conclusion of the hearing, the superior court filed its ruling in a letter that

contained findings. It found that Bryant’s recantation account was not plausible, reliable, or




25
   The findings of fact and conclusions of law in support of the sentence also provide, “[Bryant]
has cooperated with law enforcement by providing information about what he witnessed. Without
requesting anything in return [Bryant] testified recently during the murder case. [Bryant’s]
testimony was directly relevant and contradictory to the claims made by the murderer in that case.”
Ex. 3 at 4.

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Consol. Nos. 48294-1-II / 49554-6-II


credible. Later, the superior court entered findings of fact that included almost the same findings

as the letter. The findings of fact stated in part,

        3.      At the reference hearing, Bryant Ward was called as a witness by petitioner
                Christopher Olsen.
        4.      Bryant Ward invoked his right to not testify in response to most questions
                posed to him by petitioner’s attorney.
        5.      Because of this, Bryant Ward did not provide an explanation in court of the
                circumstances under which he came to author a recantation of his trial
                testimony or even acknowledge that he did so.
        6.      There is credible evidence from witness Michael Dahlstrom that Bryant
                Ward had previously acknowledged writing the recantation letter during a
                telephone call in April, 2016.
        7.      However, the only evidence of reliability of the recantation is the letter
                Bryant Ward wrote in November, 2015, while an inmate at the Washington
                Corrections Center in Shelton, Washington (Ex. 1).
        8.      The substance of Bryant’s [sic] Ward’s recantation letter is much different
                from his trial testimony, as well as his statements to police two days after
                the murder. Bryant Ward’s trial testimony and statements to police are
                consistent with one another.
        9.      In his recantation letter, Bryant Ward states that his motivation for
                previously providing false information regarding the shooting in this case
                stemmed from hope that he might receive leniency from the State for the
                robbery charges pending against him at that time.
        10.     But at the time Bryant Ward provided his recorded statement to police, two
                days after the shooting, he had yet to commit any of the robberies he would
                later be charged with.
        11.     His claimed motivation for lying at trial is not credible.
        12.     Bryant Ward’s recantation account is not plausible.
        13.     The evidence is overwhelming that petitioner created the confrontation with
                the victim, and Bryant Ward’s recantation letter does nothing to change that.
        14.     It is undisputed that Robert Ward never discharged a firearm during this
                incident, and attempted to rapidly flee the scene of the confrontation.
        15.     The point in the car chase at which the two vehicles, one driven by the
                victim and the other by petitioner, turned onto Canyon Road East is
                important.
        16.     Bryant Ward’s recantation letter description of the turn onto Canyon Road
                East by the victim’s vehicle is not plausible.
        17.     The timing, distances involved, relative location and speed of the two
                vehicles are such that the description of these turns provided in the
                recantation letter are unlikely to be true.



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        18.     Further, the account of this turn onto Canyon Road East and the order of the
                two vehicles as described in Bryant Ward’s letter is contradicted by the trial
                testimony of Caroline E. Bennett Benum and Robert Benum.
        19.     Petitioner asserts that the account of the vehicle chase provided in Bryant
                Ward’s recantation letter is supported by the trial testimony of the Pierce
                County Medical Examiner, Thomas Clark. The Court does not find this
                assertion credible based upon the variables involved regarding the pathway
                of the bullet in the victim’s head, as well as the other evidence presented at
                trial regarding the pathway of the bullet.
        20.     Petitioner bears the burden of proving that Bryant Ward’s recantation is
                reliable and credible.
        21.     Bryant Ward’s invocation of his right to remain silent is a practical barrier
                to the petitioner’s claim of newly discovered evidence. Bryant Ward’s
                letter, though authentic, is inadmissible hearsay. Without Bryant Ward’s
                testimony in conformity with the letter, there is no new evidence.
        22.     The Courts [sic] finds, upon the evidence presented at the reference hearing
                held May 21 and 22, 2018, that Bryant Ward’s recantation is neither reliable
                nor credible.

CP at 1896-98.

                                        II. LEGAL PRINCIPLES

        We have three options when reviewing a PRP: “(1) [deny] the petition, (2) transfer the

petition to a superior court for a full determination on the merits or a reference hearing, or (3) grant

the petition.” In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013). A reference

hearing is appropriate where the merits of the petitioner’s contentions cannot be determined solely

on the record because there are disputed material issues of fact. RAP 16.11(b); In re Pers.

Restraint of Reise, 146 Wn. App. 772, 780, 192 P.3d 949 (2008).

        We may grant a PRP if “[m]aterial facts exist which have not been previously presented

and heard, which in the interest of justice require vacation of the conviction.” RAP 16.4(c)(3).

The RAP 16.4(c)(3) standard is the same as that applied to a motion for a new trial based upon

newly discovered evidence. In re Pers. Restraint of Brown, 143 Wn.2d 431, 453, 21 P.3d 687

(2001). The petitioner must satisfy a five-factor test

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Consol. Nos. 48294-1-II / 49554-6-II


          “that the evidence (1) will probably change the result of the trial; (2) was discovered
          since the trial; (3) could not have been discovered before trial by the exercise of
          due diligence; (4) is material; and (5) is not merely cumulative or impeaching.”

Reise, 146 Wn. App. at 781 (quoting State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)).

A testimonial recantation must be reliable. State v. Macon, 128 Wn.2d 784, 804, 911 P.2d 1004

(1996).

          A petitioner must provide competent and admissible evidence that provides a factual basis

for his allegations. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Bald

assertions and conclusory allegations do not suffice. Rice, 118 Wn.2d at 886. And if the evidence

is based on others’ knowledge, the petitioner must present their affidavits or other corroborative

evidence, rather than relying on what he thinks those others would say. Rice, 118 Wn.2d at 886.

                                              ANALYSIS

                     I. THE TRIAL COURT’S FINDINGS OF FACT ARE SUPERFLUOUS

          In our order for a reference hearing, we specifically instructed,

          The superior court shall conduct a hearing to allow Olsen to present the testimony
          of recanting witness Bryant, subject to cross-examination. The superior court shall
          enter findings of fact regarding whether Bryant testifies consistently with his
          statement submitted in support of Olsen’s PRP and whether Bryant’s recantation
          is credible and reliable. In doing so, the superior court shall focus upon the
          circumstances affecting reliability and credibility set forth in Clements, 125 Wn.
          App. at 644 n.3, and [Spencer, 152 Wn. App. at 715].

Order Transferring Pet. to Superior Ct. for a Reference Hr’g, State v. Olsen, Consol. Nos. 48294-

1-II, 49554-6-II, at 7-8 (Wash. Ct. App. Feb. 7, 2018) (emphasis added). But Bryant asserted his

Fifth Amendment privilege when asked about the recantation letter. Therefore, the superior court

could not enter findings of fact “regarding whether Bryant testif[ied] consistently with his

statement submitted in support of Olsen’s PRP and whether Bryant’s recantation is credible and


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Consol. Nos. 48294-1-II / 49554-6-II


reliable.” Order Transferring Pet. to Superior Ct. for a Reference Hr’g, State v. Olsen, Consol.

Nos. 48294-1-II, 49554-6-II, at 8 (Wash. Ct. App. Feb. 7, 2018). Instead, the superior court issued

findings of fact as to whether Bryant’s recantation letter was credible and reliable based on the

record. These findings regarding Bryant’s letter are immaterial and superfluous.

       We hold that the superior court’s findings of fact regarding Bryant’s written recantation

letter exceed the scope of the order because the order was directed at Bryant’s reference hearing

testimony and we treat them, accordingly, as superfluous.

                                     II. FIFTH AMENDMENT

       Olsen argues that the superior court erred by sustaining Bryant’s invocation of the Fifth

Amendment as to the facts contained in the recantation letter. We disagree.

                                     A. PRINCIPLES OF LAW

       Both the Sixth Amendment to the United States Constitution and the Washington

Constitution protect a defendant’s right to compel a witness’s testimony. State v. Levy, 156 Wn.2d

709, 731, 132 P.3d 1076 (2006). However, the Fifth Amendment prohibits a person from being

compelled to be a witness against himself. Levy, 156 Wn.2d at 731. The Fifth Amendment applies

when the defendant has “‘reasonable cause to apprehend danger from a direct answer.’” Levy, 156

Wn.2d at 731-32 (internal quotation marks omitted) (quoting United States v. Goodwin, 625 F.2d

693, 700 (5th Cir. 1980)).

       “The danger of incrimination must be substantial and real, not merely speculative.” State

v. Hobble, 126 Wn.2d 283, 290, 892 P.2d 85 (1995). “The answer need only ‘furnish a link in the

chain of evidence needed to prosecute the witness for a crime.’” Hobble, 126 Wn.2d at 290

(quoting Seventh Elect Church v. Rogers, 34 Wn. App. 96, 100, 660 P.2d 294 (1983)). The


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determination of whether a Fifth Amendment privilege applies to a witness is left to the trial court’s

discretion. Hobble, 126 Wn.2d at 291. This determination is reviewed for an abuse of discretion.

State v. Parker, 79 Wn.2d 326, 333, 485 P.2d 60 (1971).

       A witness cannot make a “‘blanket declaration . . . that he cannot testify for fear of self-

incrimination.’” Levy, 156 Wn.2d at 732 (alteration in original) (quoting United States v. Gomez-

Rojas, 507 F.2d 1213, 1219 (5th Cir. 1975)). The superior court must inquire into the assertion’s

legitimacy and the scope may not extend to all relevant questions. Levy, 156 Wn.2d at 732. But

“[i]f the judge has ‘specialized knowledge’ of the likely testimony and can determine whether the

privilege is properly asserted for that witness, the judge may allow the witness to refuse to answer

all questions.” Levy, 156 Wn.2d at 732.

       Perjury consists of a person making inconsistent material statements under oath, knowing

one to be false. See RCW 9A.72.050.

                 B. NOT ERROR TO SUSTAIN THE FIFTH AMENDMENT PRIVILEGE

       Olsen relies on the Ninth Circuit case United States v. Vavages, 151 F.3d 1185, 1192 (9th

Cir. 1998), to argue that the trial court erred in sustaining Bryant’s Fifth Amendment privilege. In

Vavages, the defendant indicated prior to trial that his common law wife, Manuel, was going to

testify. 151 F.3d at 1187. Manuel invoked her Fifth Amendment privilege to avoid perjury charges

because it “was her belief that her alibi testimony, even if truthful, would subject her to a perjury

prosecution.” Vavages, 151 F.3d at 1192. The trial court permitted a blanket privilege. Vavages,

151 F.3d at 1187, 1192. The Ninth Circuit found that the trial court erred, stating,

       “A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that
       he will be prosecuted for perjury for what he is about to say. The shield against
       self-incrimination in such a situation is to testify truthfully, not to refuse to testify
       on the basis that the witness may be prosecuted for a lie not yet told.”

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Consol. Nos. 48294-1-II / 49554-6-II



Vavages, 151 F.3d at 1192 (alterations in original) (quoting United States v. Whittington, 783 F.2d

1210, 1218 (5th Cir. 1986) (noting that “[a] witness may, however, claim the privilege if his

testimony may suggest that he has already committed a crime, for example, perjury in a prior

proceeding”)).

       The State responds that this case differs from Vavages because in this case (1) Bryant was

not allowed to assert a blanket Fifth Amendment privilege, and (2) Bryant was not at risk for “‘a

lie not yet told.’” State’s Suppl. Br. to PRP at 11 (quoting Vavages, 151 F.3d at 1192). We agree

with the State on both of these arguments. The trial court did not allow Bryant to assert a blanket

Fifth Amendment claim and if he had testified consistently with the contents of the letter at the

reference hearing, his testimony might have suggested that he already committed perjury in his

trial testimony.

       Olsen further argues, without citing any additional authority, that Bryant was under no

realistic threat of a perjury prosecution for clarifying two points of his trial testimony, and the

superior court should not have sustained Bryant’s assertion. Olsen acknowledges that Bryant’s

trial testimony differed in two material ways from his “clarification” letter: (1) he testified he did

not see Ward with a gun, but later wrote that he saw Ward point a gun at Olsen, and (2) he testified

that he believed Olsen was still pursuing them on Canyon Road and later wrote that Olsen ended

up fleeing with Ward pursuing him. However, Olsen argues that in light of the rest of the

testimony, Bryant’s trial testimony was consistent with Olsen’s, Pederson’s, and the other

witnesses’ testimony. Additionally, Olsen contends that to the extent Bryant’s testimony differed

from his letter, it must be read in light of the fact that he was feeling pressure to assist the



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prosecution. Olsen also notes that Bryant received immunity for his testimony related to his drug

activity.

        The State argues that Bryant had already given two inconsistent statements. He testified

under oath at trial that he never saw a gun in Ward’s vehicle. His recantation letter states “under

penalty of perjury” that Ward pointed his gun at Olsen. Ex. 1 at 5. The State claims that if Bryant

affirmed one statement that would mean he either committed perjury at the trial or in the

recantation letter. The State does not cite to any authority to support this argument.

        Perjury consists of a person making inconsistent material statements under oath, knowing

one to be false. See RCW 9A.72.050. It appears the State is correct that Bryant’s testimony could

have compelled him to incriminate himself on perjury charges. Thus, Bryant was entitled to rely

on the Fifth Amendment, and the trial court did not err in allowing him to do so. We hold that the

trial court did not abuse its discretion and thus did not err by sustaining the witness’s invocation

of his Fifth Amendment privilege.

                                           III. NEW TRIAL

        Olsen argues that he is entitled to a new trial based on the recantation letter. We disagree.

                                       A. PRINCIPLES OF LAW

        We may grant a PRP if “[m]aterial facts exist which have not been previously presented

and heard, which in the interest of justice require vacation of the conviction.” RAP 16.4(c)(3). A

petitioner must provide competent and admissible evidence that provides a factual basis for his

allegations. Rice, 118 Wn.2d at 886. The petitioner must satisfy a five-factor test

        “that the evidence (1) will probably change the result of the trial; (2) was discovered
        since the trial; (3) could not have been discovered before trial by the exercise of
        due diligence; (4) is material; and (5) is not merely cumulative or impeaching.”


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Consol. Nos. 48294-1-II / 49554-6-II


Reise, 146 Wn. App. at 781 (quoting Williams, 96 Wn.2d at 223). A testimonial recantation can

be newly discovered evidence meriting a new trial. See Macon, 128 Wn.2d at 804. When

evaluating whether a recantation would probably change the result of a trial, it must be determined

“whether the recantation is reliable.” Macon, 128 Wn.2d at 804.

       “Whether there is independent corroborating evidence to support the recanting witness’

original testimony is not a controlling factor” in this inquiry.      Macon, 128 Wn.2d at 804.

“Reliability is the overriding concern and encompasses all relevant circumstances surrounding the

recantation, including possible undue influence, coercion, and any other improper motive or

influence.” Clements, 125 Wn. App. at 644 n.3.

       As a component of reliability, a trial court must assess credibility. Clements, 125 Wn. App.

at 644 n.3. The trial court must make “its own determination of the credibility of a recanting

withness, whether or not there is corroborating evidence and without regard to whether a jury

might find the witness credible.” State v. Ieng, 87 Wn. App. 873, 880, 942 P.2d 1091 (1997).

“Credibility amounts to a threshold determination of plausibility that involves more than the

demeanor of witnesses. A credibility determination includes an assessment of evidence in light of

its rationality, internal consistency, consistency with other evidence, and common experience.”

Clements, 125 Wn. App. at 644 n.3.

                                     B. ADMISSIBLE EVIDENCE

       Olsen argues that because Bryant invoked his right to remain silent and because the trial

court erroneously sustained that invocation that this court is in the same position it was in before.

Olsen says that he was convicted on “questionable testimony” and therefore appears to argue that

he is entitled to a new trial. Suppl. Br. of Appellant at 25.


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Consol. Nos. 48294-1-II / 49554-6-II


           The State argues that this court ordered a reference hearing because the letter was not

sufficient to entitle him to relief and after the reference hearing little has changed. Olsen admits,

“[B]ecause of Bryant Ward’s decision to invoke his right to remain silent and the trial court’s

erroneous sustaining of that invocation, this Court is largely in the same place it was prior to

ordering the reference hearing.” Suppl. Br. of Appellant at 24-25. We agree that little has changed.

           Olsen notes that the trial court expressed concern that the letter and statement to his

attorney and the private investigator were hearsay and were not admissible. Olsen argues that this

concern is premature because it is unknown if Olsen would call Bryant at a new trial and it is

unknown if Bryant would invoke the Fifth Amendment at a new trial.

           We disagree with Olsen that this concern is premature because it is his burden to show that

he has new admissible evidence such that he is entitled to a new trial. It is immaterial to discuss

what may or might happen at a new trial, until Olsen has established that he is entitled to a new

trial.26

           The basis for Olsen’s claim that he is entitled to a new trial is that Bryant’s recantation is

newly discovered evidence. If Olsen does not intend to call Bryant to testify, or if Bryant is

unavailable to testify due to his Fifth Amendment privilege, then there is no new admissible

evidence. Thus, there are no grounds to grant a new trial. Accordingly, we reject Olsen’s

argument.

           Olsen also argues that if Bryant’s prior trial testimony is admitted as former testimony

under ER 804(b)(1), the letter and statement would be admissible as impeachment evidence under



26
  The dissent would grant a new trial without requiring Olsen to meet his legal burden to show
that he has new admissible evidence. Dissent at 84-85.

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Consol. Nos. 48294-1-II / 49554-6-II


ER 806. He also asserts without analysis that it could be admitted as a statement against interest

under ER 804(b)(3). The State argues that Olsen has not presented any material or admissible

evidence and that it is all hearsay. The State agrees that if Olsen received a new trial, the letter

could be used for impeachment. However, evidence that is merely impeaching does not warrant a

new trial. Macon, 128 Wn.2d at 800. The State is correct. Bryant’s recantation letter is hearsay.

And impeachment evidence alone is insufficient evidence upon which to grant a new trial.

       The State further argues that the trial court properly concluded that the new version of

events was not credible or reliable. Thus, the State says that since Olsen has no credible or reliable

evidence and cannot show that the trial would have been different, his claim fails.

       We agree with the State that since the recantation letter is merely hearsay and that Olsen

has not shown that the recantation is credible, reliable, and admissible, a new trial is not warranted.

                   IV. BRADY VIOLATION: OUTSIDE THE SCOPE OF THE ORDER

       Olsen argues that the Pierce County Prosecutor’s Office committed prosecutorial

misconduct and violated Brady at trial by purposefully delaying reaching a final plea agreement

with Bryant in order to avoid its disclosure to the defense. Olsen relies on plea documents from

Bryant’s sentencing for unrelated robbery charges to argue that there was circumstantial evidence

that Bryant had a quid pro quo agreement with the State to testify favorably at Olsen’s trial in

exchange for a mitigated exceptional sentence. We hold that Olsen’s Brady violation claim is

outside the scope of the reference hearing order.




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Consol. Nos. 48294-1-II / 49554-6-II


       We ordered a reference hearing solely on the issue of whether Bryant’s testimonial

recantation is credible and reliable. Order Transferring Pet. to Superior Ct. for a Reference Hr’g,

State v. Olsen, Consol. Nos. 48294-1-II, 49554-6-II, at 2 (Wash. Ct. App. Feb. 7, 2018). This

Brady violation claim is unrelated to the reference hearing and allegedly occurred at or before the

trial. Accordingly, Olsen’s Brady violation claim is outside the scope of the reference hearing

order and should not be considered.

              V. ON-SITE SIMULATOR DEVICE: OUTSIDE THE SCOPE OF THE ORDER

       Olsen argues that the United States Supreme Court in Carpenter has held that people have

a privacy interest in not having their movements captured through CSLI and use of the equipment

absent a warrant is unreasonable under the Fourth Amendment. This issue is also outside the scope

of the reference order, but we nonetheless address Carpenter in the direct appeal portion of our

opinion.

                                         CONCLUSION

       In conclusion, for the direct appeal, we hold that the trial court properly (1) gave the

aggressor instruction, (2) denied Olsen’s pretrial suppression motion, and (3) allotted voir dire

time. Further, we (4) decline to reach Olsen’s argument that the evidence was insufficient to

convict him of the vacated count, (5) hold that the trial court properly allowed extrinsic evidence

under ER 613(b), and (6) reject Olsen’s SAG arguments as lacking merit, relying on matters

outside the record, or are too vague to address.

       For the PRP, we hold that (1) the superior court’s findings of fact are superfluous, (2) the

superior court did not err by sustaining Bryant’s invocation of the Fifth Amendment, (3) Olsen




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failed to establish that he is entitled to a new trial, and (4) Olsen’s Brady violation claim is outside

the scope of the reference hearing. Accordingly, we affirm Olsen’s conviction and deny his PRP.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                       JOHANSON, J.P.T.
 I concur:



 SUTTON, P.J.




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Consol. Nos. 48294-1-II / 49554-6-II


          BJORGEN, J.P.T* (dissenting in part) — For the reasons below, I would grant Christopher

Olsen’s personal restraint petition (PRP), remand for a new trial, and require the trial court to

determine the reliability of Bryant Ward’s27 recantation whether or not he testifies. In addition, I

disagree with the majority’s conclusion that Olsen lacked standing to challenge the use of a cell

site simulator (Stringray) to track Nathan Stevenson. However, I agree that there was sufficient

evidence apart from information derived through the Stingray to justify arresting

Stevenson. Thus, no evidence developed as a result of Stevenson’s arrest need be excluded, even

if use of the Stingray was unconstitutional.

          Olsen was convicted of first degree murder in the death of Robert Ward. The majority

opinion ably sets out the conflicting evidence surrounding the killing that was presented to the

trial court.

          The most forceful evidence against Olsen was the testimony of Bryant and Richard

Pederson, the two passengers in Ward’s vehicle, and bystander William Gamm. Bryant, riding

in the back seat of Ward’s vehicle, testified that he heard a dozen gunshots coming from the

pickup truck behind Ward’s car. The shots began, according to Bryant, within 5 to 10 seconds

from when Ward sped out of the parking lot. Bryant testified that he neither heard anyone in

Ward’s car return fire nor saw a firearm in Ward’s car. Pederson testified that when Ward left

the parking lot, Olsen began firing at Ward’s car, and Ward drew a small handgun at one point

but never raised it above his lap.




*
  Judge Thomas R. Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant
to RCW 2.06.150.
27
     Consistently with the majority opinion, this dissent refers to Bryant Ward as Bryant for clarity.
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Consol. Nos. 48294-1-II / 49554-6-II


       Within a month after Olsen’s sentencing, Bryant wrote Olsen’s mother a letter recanting

his trial testimony “under penalty of perjury.” PRP at 12, 14, 18. Bryant stated that he and

Pederson “lied to police,” and that he “lied at Mr. Olsen’s trial” because Bryant feared that

unless he testified favorably for the State, he would not receive “a favorable plea barga[i]n on . . .

unrelated robbery charges.” PRP at 12.

       Bryant’s letter states that when Olsen followed Ward, Ward “pull[ed] a gun out and

point[ed] [it] back between the seats at the truck behind” them. PRP at 13. Bryant then heard

gunshots. Bryant’s letter further states that when Ward swerved to go after Olsen and ended up

in oncoming traffic, Bryant

       looked up and the last thing I saw was [Ward] pointing his gun at the truck, like as
       to shoot through the windshield. At that moment is when I heard the truck fir[ing]
       more shots. That’s when I believe [Ward] to be shot.
               ....
               The truth of the matter is that all Mr. Olsen did was follow us out of the
       parking lot and he never fired his gun until Robert Ward pointed his gun at him and
       was trying to get it to fire.
               Olsen ended up being the one who was fleeing with [Ward] chasing him.
       Not the other way around. If Mr. Olsen didn’t defend himself it would have been
       bad for him.

PRP at 13-14.

       As the majority explains in more detail, Olsen’s PRP argues that the recantation merits a

new trial under RAP 16.4(c)(3). We may grant a PRP under RAP 16.4(c)(3) if “[m]aterial facts

exist which have not been previously presented and heard, which in the interest of justice require

vacation of the conviction.” To meet this standard, the petitioner must satisfy a five-factor test:

       “the evidence (1) will probably change the result of the trial; (2) was discovered
       since the trial; (3) could not have been discovered before trial by the exercise of
       due diligence; (4) is material; and (5) is not merely cumulative or impeaching.”



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In re Pers.Restraint of Reise, 146 Wn. App. 772, 781, 192 P.3d 949 (2008) (quoting State v.

Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)). Further, a petitioner must provide competent

and admissible evidence that provides a factual basis for his allegations. In re Pers. Restraint of

Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).

       The majority opinion concludes that these standards are not met for two reasons: first,

the recantation letter is hearsay and thus is not competent and admissible evidence under Rice,

and, second, the requisite determination of reliability was not made due to Bryant’s invocation of

his Fifth Amendment privilege.

       Turning first to the evidentiary issue, our order of February 7, 2018, transmitting the PRP

to superior court for a reference hearing, concluded that Olsen’s petition meets his threshold

burden of providing competent and admissible evidence that creates a factual basis for his

allegations, citing Rice, 118 Wn.2d at 886. If Olsen’s petition and evidence met the standards of

Rice when we issued this order, they continue to do so now.

       Apart from this argument, if Bryant’s prior trial testimony is admitted as former

testimony under ER 804(b)(1), the letter and statement would likely be admissible as

impeachment evidence under ER 806. See ER 806; 5C WASH. PRACTICE, EVIDENCE LAW AND

PRACTICE § 806.2 (6th ed.). The State agrees that if Olsen received a new trial, the letter could

be used for impeachment. However, as the majority opinion rightly points out, evidence that is

merely impeaching does not warrant a new trial. State v. Macon, 128 Wn.2d 784, 800, 911 P.2d

1004 (1996). Thus, the question reduces to whether the recantation letter is “merely

impeaching” in determining whether a new trial is warranted.




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        The reasoning in State v. Roche, 114 Wn. App. 424, 59 P.3d 682 (2002), supports the

conclusion that the recantation letter is not “merely impeaching.” The two defendants in Roche

had been convicted of methamphetamine possession. Id. at 428. Soon after sentencing, it

became public knowledge that the chemist at the Washington State Patrol Crime Laboratory who

had tested the substances recovered in the Roche defendants’ cases had been using heroin sent to

the crime lab for testing purposes. Id. Roche appealed the trial court’s denial of his motion for a

new trial based on this newly discovered evidence. Sweeney, the other defendant, filed a PRP

raising the same issue after his request for court appointed counsel to help him move for a new

trial was denied by the trial court. Id. Sweeny’s PRP rested on RAP 16.4(c), the same basis as

Olsen’s.

        In ruling on Roche’s appeal and Sweeny’s PRP, the Roche court applied the same five-

factor test set out above and used by the majority in the present appeal. Id. at 444. In discussing

the fifth factor, the court stated:

        Moreover, the evidence of [Michael] Hoover’s malfeasance is more than “merely”
        impeaching; it is critical, with respect to Hoover’s own credibility, the validity of
        his testing, and the chain of custody. See State v. Savaria, 82 Wash.App. 832, 838,
        919 P.2d 1263 (1996) (“[I]mpeaching evidence can warrant a new trial if it
        devastates a witness’s uncorroborated testimony establishing an element of the
        offense. In such cases the new evidence is not merely impeaching, but critical.”).
        The record establishes that after Hoover’s malfeasance became known, the State
        dismissed dozens of pending “Hoover cases” involving drugs other than heroin,
        including methamphetamine cases, because of the devastating damage to Hoover’s
        credibility and to the chain of custody.

Id. at 438. The court also noted that the record reflected that if the evidence had been known at

the time of trial, the chemist would never have been called as a witness. Id. at 439.

        The new evidence in the present appeal does not call the validity of testing or the chain of

custody into question as it did in Roche. As in Roche, however, the force of the recantation letter

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Consol. Nos. 48294-1-II / 49554-6-II


is not merely to question or traverse some prior testimony. To the contrary, the recantation

would not only have devastated the testimony of one of the principal witnesses against Olsen, but

would have replaced that testimony with directly exculpating testimony that confirmed Olsen’s.

Even though other testimony against Olsen would have remained, the thrust of the recantation is

not simply to impeach some testimony, but to remove central inculpating testimony and to add

eyewitness testimony that is directly exculpating.

       Under Roche, Bryant’s recantation is not merely impeaching, but is critical to a fully

informed resolution of the conflicting evidence. As such, it meets the fifth factor in the test for

granting a PRP under RAP 16.4(c).

       Turning to the issue of reliability, neither Macon nor In re Pers. Restraint of Clements,

125 Wn. App. 634, 106 P.3d 244 (2005), require that a determination whether a recantation is

reliable be made before this court may order a new trial on a PRP in circumstances such as these.

Macon did not involve a PRP, but rather an appeal of the trial court’s denial of his motion to

vacate and order a new trial under CrR 7.8. 128 Wn.2d at 786. In upholding the trial court’s

denial of the motion to vacate and for new trial, our court held that

       [w]hen a defendant is convicted upon the testimony of a witness who later recants,
       the trial court must first determine whether the recantation is reliable before
       considering a defendant’s motion for new trial based upon the recantation.

Id. at 804. Macon, thus, holds that when a trial court considers a motion for new trial based on a

recantation, the trial court must first determine its reliability. It does not require the same before

an appellate court may grant a PRP.




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       In re Clements did involve a PRP: one challenging the trial court’s denial of Clements’

motion to withdraw an Alford28 plea because the principal witness had retracted some of her

allegations. 125 Wn. App. at 638. Our court upheld the trial court’s denial of the motion to

withdraw because independent evidence supported the plea and the trial court was not convinced

the recantation was reliable. Id. at 644-45. The trial court’s inquiry into the reliability of the

recantation was truncated because, as here, the recanting witness refused to testify at the hearing.

Id. at 644. Nevertheless, our court held that in context, “it is apparent from its ruling that the

court did not find Pendleton’s recantation reliable, in large part because it was inconsistent with

the unretracted evidence in the certification.” Id.

       In reaching its conclusion, Clements cited State v. D.T.M., 78 Wn. App. 216, 221, 896

P.2d 108 (1995), an appeal of the trial court’s denial of a motion to withdraw an Alford plea

based on a recantation. Even though the trial court did not hold a hearing to evaluate the

recanting witness’s credibility,29 our court reversed the trial court’s denial of D.T.M.’s motion

and remanded for further proceedings. Id. We stated:

       [W]e believe the court should have held a hearing to evaluate M.J.’s credibility. If
       she were to adhere to the facts in her recantation while under oath in open court and
       subject to cross examination, [State v. ]Rolax, [84 Wn.2d 836, 529, P.2d 1078
       (1974)], [State v. ]Powell, [51 Wash. 372, 98 P. 741 (1909)], and [State v. ]York[,
       41 Wn. App. 538, 704 P.2d 1252 (1985)] would require the court to permit D.T.M.
       to withdraw his guilty plea and proceed to trial.

Id. In other words, D.T.M. was reversed in the absence of a reliability/credibility determination

and required the trial court to make it on remand.




28
   No. Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
29
   As the majority opinion points out, credibility is a component of the examination into
reliability.
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        In this matter, our order stated that “a reference hearing must be held with entry by the

superior court of findings of fact on the issue of whether Bryant’s recantation is credible and reliable.”

Spindle, Order Transferring Pet’n to Superior Court for a Reference Hr’g, at 7. More specifically, we

directed:

        The superior court shall conduct a hearing to allow Olsen to present the testimony
        of recanting witness Bryant, subject to cross-examination. The superior court shall
        enter findings of fact regarding whether Bryant testifies consistently with his
        statement submitted in support of Olsen’s PRP and whether Bryant’s recantation is
        credible and reliable. In doing so, the superior court shall focus upon the
        circumstances affecting reliability and credibility set forth in Clements, 125 Wn.
        App. at 644 n.3, and In re Personal Restraint of Spencer, 152 Wn. App. 698, 715,
        218 P.3d 924 (2009).

Spindle, Order at 7-8. Due to Bryant’s invocation of the Fifth Amendment, the hearing did not

occur as ordered: Byrant’s testimony of significance was not presented, Bryant was not subject

to cross-examination on it, and the trial court did not enter findings regarding whether Bryant

testified consistently with his statement submitted in support of Olsen’s PRP. Thus, a hearing

was not held as ordered on Byrant’s reliability and credibility. Consequently, the trial court’s

finding that Bryant’s recantation was not reliable or credible was not made in compliance with

our order.

        With that, we are left in the same position as when we issued the order: a proper

determination of reliability and credibility has not yet been made. There is little point in

remanding for the trial court to attempt to make this determination again, on the off-chance that

Bryant would not take shelter under the Fifth Amendment. On the other hand, simply denying

this PRP would consign Olsen to an approximate 50-year sentence without consideration of a

principal witness’s recantation of central inculpatory testimony. A new trial provides the best

chance of getting all evidence, possibly including Bryant’s recantation, before a jury. It would

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come, though, at a sizeable cost of judicial resources and system delay, as well as risk fading

witness memories and uncertain witness availability.

       The circumstances of Bryant’s recantation tip this difficult balance in the direction of a

new trial. Olsen was sentenced on October 23, 2015. According to exhibits 2 and 3, Bryant

received a mitigated exceptional sentence for first degree robbery just four days later, on October

27, 2015. In spite of an offender score of 9 plus, Bryant received an exceptional sentence which

was 21 months less than the low end of the sentencing range. Bryant’s plea agreement on the

robbery charge was finalized only after he testified against Olsen. In his recantation letter,

Bryant stated that he lied to police and lied at Olsen’s trial because he feared that unless he

testified favorably for the State, he would not receive “a favorable plea bargain on . . . unrelated

robbery charges.” PRP at 12. Bryant’s recantation letter was written within a month of Olsen’s

sentencing. See PRP at 11-12. Bryant has now refused to testify to his recantation letter because

he fears the State will prosecute him for perjury if he does.

       These circumstances support the reliability of Bryant’s recantation. Other circumstances

will raise doubts about its reliability. The cases discussed above and the requirement of RAP

1.2(a) to promote justice and facilitate decisions on the merits are not honored by denying Olsen

all relief without determining the reliability of his recantation. We should order a new trial.

       Finally, Olsen argues that law enforcement’s use of the Stingray device to locate

Stevenson violated Olsen’s rights under the Fourth Amendment. The majority holds that Olsen

lacked standing to challenge the use of the Stingray to track Stevenson, noting that Fourth

Amendment rights are personal rights that may not be vicariously asserted; thus, one cannot

invoke the Fourth Amendment rights of others. State v. Jones, 68 Wn. App. 843, 847, 845 P.2d


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1358 (1993); State v. Simpson, 95 Wn.2d 170, 174-75, 622 P.2d 1199 (1980). This analysis, I

believe, contradicts binding United States Supreme Court precedent.

       In Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the petitioners

were in a car that police had stopped because they suspected it was the getaway car in an armed

robbery. Id. at 130. The petitioners neither owned nor leased the car. Id. at 140. The police

searched the car, finding arms and ammunition. Id. at 130. At issue, the Court stated, was

       whether the challenged search or seizure violated the Fourth Amendment rights of
       a criminal defendant who seeks to exclude the evidence obtained during it. That
       inquiry in turn requires a determination of whether the disputed search and seizure
       has infringed an interest of the defendant which the Fourth Amendment was
       designed to protect.

Id. at 140. Under this rule, the Court held the petitioners had no Fourth Amendment interest in the

car they neither owned nor leased. Id. at 148.

       The majority’s application of these rules to Olsen founders on Wong Sun v. United States,

371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). That appeal arose from a raid by law

enforcement officers of the living quarters of James Toy, whom they suspected of selling heroin.

The search disclosed no illegal drugs. Toy denied selling narcotics, but told officers a Johnny

Yee was. The officers then went to Yee’s house and entered his living quarters, where Yee

surrendered his heroin to them. Yee also told the officers that he had obtained the heroin from

Toy and another individual subsequently identified as Wong Sun. The officers then arrested

Wong Sun, who admitted the accuracy of a statement they had drawn up in which he admitted

the use and delivery of heroin. Wong Sun, 371 U.S. at 473-77, 492-93. The main issue in Wong

Sun’s appeal was whether the trial court properly allowed that statement into evidence in his

prosecution. Id. at 477.


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Consol. Nos. 48294-1-II / 49554-6-II


         The Supreme Court held that the officers’ uninvited entry into Toy’s living quarters and

his arrest which followed were unlawful. Id. at 484. To determine the consequences of those

unlawful acts, the Court asked whether

         “the evidence to which instant objection is made has been come at by exploitation
         of that illegality or instead by means sufficiently distinguishable to be purged of
         the primary taint.”

Id. at 488 (quoting JOHN MCGUIRE, EVIDENCE OF GUILT, at 221 (1959)). The Court then held

that the heroin found on Yee could not be used against Toy for that reason. Id. As to Wong Sun,

it held that the only competent source of corroboration for his statement used by the prosecution

was the heroin itself. Id. at 492. Because of that, the Court held:

         We intimate no view one way or the other as to whether the trial judge might have
         found in the narcotics alone sufficient evidence to corroborate Wong Sun’s
         admissions that he delivered heroin to Yee and smoked heroin at Yee’s house
         around the date in question. But because he might, as the factfinder, have found
         insufficient corroboration from the narcotics alone, we cannot be sure that the scales
         were not tipped in favor of conviction by reliance upon the inadmissible Toy
         statement.

Id. at 492-93. For that reason, the Court reversed and ordered a new trial for Wong Sun. Id. at

493.

         Because of the consequences of the officers’ illegal entry into Toy’s residence and his

arrest, Wong Sun’s own Fourth Amendment rights were violated, even though he had no privacy

interest in Toy’s residence. Wong Sun was asserting his own Fourth Amendment rights, not

Toy’s.

         In the present appeal, Olsen argues that use of the Stingray device to apprehend

Stevenson was illegal, and, thus, evidence developed through Stevenson’s apprehension should

have been suppressed. Under Rakas, 439 U.S. at 140, whether a challenged search violated the


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Consol. Nos. 48294-1-II / 49554-6-II


rights of one seeking to exclude evidence of it depends on whether “the disputed search and

seizure has infringed an interest of the defendant which the Fourth Amendment was designed to

protect.” Assuming use of the Stingray to track Stevenson was illegal, see United States v.

Carpenter, -- U.S. ---, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018), that use would have infringed

Olsen’s Fourth Amendment interest under Wong Sun because evidence used against him was

developed through the exploitation of that illegality. See Wong Sun, 371 U.S. at 488.

       Thus, under Wong Sun and Racus, Olsen is not asserting Fourth Amendment rights

vicariously or attempting to invoke the rights of others, as the majority contends. Rather, he is

invoking his own direct Fourth Amendment rights, and, as such, his standing to vindicate those

rights is not foreclosed by Jones or other decisions cited by the majority.

       Even though Olsen had standing to challenge use of the Stingray, evidence need not be

suppressed under the fruit of the poisonous tree doctrine if obtained from an independent

source. State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005). I agree that there was

sufficient evidence apart from information derived through the Stingray to justify arresting

Stevenson. Thus, no evidence developed as a result of Stevenson’s arrest need be excluded, even

if use of the Stingray was unconstitutional under Carpenter.



                                                      _________________________________
                                                      Bjorgen, J.P.T.




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