          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                            No. 78210-0-1
                      Respondent,
                                            DIVISION ONE
               V.
                                            UNPUBLISHED OPINION
 ALEXANDER MARTIN
 SCORDAMAGLIA,

                      Appellant.            FILED: November 12, 2019


      APPELWICK, J. — Alexander Scordamaglia appeals the judgment and sentence

entered upon his conviction on retrial for possession of a controlled substance

(methamphetamine) while on community custody. He assigns error to the trial court's

denial of his CrR 8.3(b) and CrR 4.7 motions to dismiss for governmental

mismanagement and discovery violations. Scordamaglia raised valid concerns regarding

cumulative prosecutorial mismanagement below. However, he abandoned this basis for

review when he failed to brief the issues and seek a ruling from the trial court. He further

claims errors based on double jeopardy, allowing the testimony of a previously

undisclosed witness, and admitting drug evidence. These issues do not provide a basis

for reversal. We affirm.

                                         FACTS

       On October 5, 2017, Officer Mark Smith of the Everett Police Department

responded to a call for assistance regarding a welfare check for a man who appeared to

be passed out on the sidewalk.        Officer Smith recognized the man as Alexander
No. 78210-0-1/2


Scordamaglia. Upon contact, Scordamaglia declined medical attention and provided his

name and date of birth. Officer Smith conducted a records check and learned that

Scordamaglia had an outstanding warrant. He arrested Scordamaglia and read his

Mirandal warnings. Scordamaglia stated that he understood his rights and that he did

not wish to speak with police.

      During the subsequent search incident to arrest, Officer Smith found a plastic

"baggie" containing a crystalline substance in Scordamaglia's jacket pocket. Based on

his training and experience, Officer Smith believed the substance was methamphetamine.

Officer Smith booked Scordamaglia into jail and returned to the police precinct to process

the evidence. He weighed the substance and baggie, and reported that together they

weighed 0.9 grams.      Officer Smith testified that he photographed the suspected

contraband and uploaded the photographs into a digital vault maintained by the police

department.   He then placed the evidence in a sealed and marked envelope and

impounded it in the secured police department property room.

       On October 10, 2017, the State filed the charge in Everett District Court pursuant

to CrRLJ 3.2.1(g).2 On October 23, 2017, the State charged Scordamaglia in Snohomish

County Superior Court with one count of possession of a controlled substance committed

while on community custody. At the October 24 arraignment hearing, omnibus was set

for November 22 and trial was set on December 8.




      1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
      2 CrRLJ 3.2.1(g) permits the State to file a felony complaint in district court to
conduct a preliminary hearing to determine probable cause, thereby tolling the
defendant's speedy trial rights for 30 days.

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No. 78210-0-1/3


       On November 22, the prosecutor asked the State crime laboratory to test the

suspected contraband. Dr. David Northrup tested the substance and reported that it

contained methamphetamine. On December 7, the State received the results and

provided them to defense counsel.

       Trial commenced on December 11, 2017. The defense moved in limine to

suppress the drug test results under CrR 4.7 on the ground that the State waited until

omnibus to submit the substance to the crime lab for testing and provided the results just

one day before trial was scheduled to begin. At oral argument, defense counsel further

argued that the delay warranted dismissal under CrR 8.3(b). The State explained that

"the crime lab does have a backlog and it asked that we not send samples for testing until

we have a confirmed court date, which we did not have until the omnibus hearing." After

the State asserted that the proper remedy would be a continuance, defense counsel

moved for dismissal pursuant to CrR 4.7. The defense further asserted that the State

mismanaged the case by filing charges in district court without conducting a preliminary

hearing.

       The court ruled that it would not exclude the drug test results for late discovery,

noting that there was still 14 days in speedy trial. The court reasoned that the appropriate

remedy would be a continuance to allow the defense to test the suspected contraband.

The court reserved ruling on the CrR 8.3 motion to dismiss.

       Following opening statements, the State called Officer Smith as its first witness.

During direct examination, Officer Smith testified that Scordamaglia invoked his right to

remain silent:

       Q: Okay. And so after you searched him, then what did you do?


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No. 78210-0-1/4

      A. Once he was searched, I advised him of his constitutional rights.

      Q. And how did you do that?

      A. By placing him in the back of my vehicle and I used my Everett Police
         Department-issued Miranda warning's [sic] card which I keep in my
         notepad and I read him read for -- excuse me, read it word for word, the
         Miranda warnings, and then 1 asked him if he understood and then I
        asked him if he desired to talk with me about it --

      Q. Okay.

      A. -- his current situation, which he declined.

(Underline added.)     Because Officer Smith impermissibly commented on

Scordamaglia's exercise of his constitutional right to remain silent, the defense

objected and requested a mistrial. The State agreed to the request and the court

granted it. The defense then moved to dismiss based on double jeopardy and

prosecutorial mismanagement. The trial court denied the motion.

       Retrial commenced on December 18. During Officer Smith's testimony, the State

moved to admit the plastic baggie and substance into evidence. Defense counsel

objected, noting that the envelope containing the suspected contraband bore initials

showing it had been opened and resealed on October 11 by another individual. Upon

further questioning, it came to light that the photographs submitted to the defense during

discovery were taken by Detective Steve Paxton, not Officer Smith. The prosecutor was

unaware of the discrepancy. Defense counsel asserted that the State could not establish

the chain of custody without Detective Paxton's testimony.

       The following morning, the State asked to call Detective Paxton as a witness to

complete the foundation requirements for chain of custody. Outside the presence of the

jury, Detective Paxton testified that he received a "need for trial" request on October 11




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No. 78210-0-1/5


from the prosecutor's office for photographs in Scordamaglia's case. He did not find any

photographs when he accessed the system, so he assumed none existed. He therefore

checked the evidence out of the property room, photographed it, and reimpounded it. He

did not think he needed to notify anyone because the digital vault automatically creates

an audit trail. Officer Smith testified that he believed he uploaded the photographs, but

conceded there might have been a technical glitch or that they might be entered under

the wrong case number.

       Defense counsel then brought a CrR 8.3(b) motion to dismiss for cumulative

prosecutorial mismanagement of the entire case to that date, including the missing

photographs and the late addition of a witness. In the alternative, the defense moved for

a mistrial or to suppress Detective Paxton's testimony. The court noted that the motion

to dismiss would now be dependent not just on chain of custody, but also on the possible

loss of evidence and failure to disclose until the middle of trial. The court therefore

reserved ruling on the motion to dismiss "for a full-blown hearing with briefing on both

sides." The court ruled that it would allow Detective Paxton to testify regarding chain of

custody but gave the defense the option of continuing the case for one day to interview

Detective Paxton, or for a mistrial to investigate the missing photographs and reformulate

trial strategy.

       The defense initially opted for a mistrial coupled with Scordamaglia's release from

custody. However, after a short recess, the defense withdrew its motion for mistrial and

trial proceeded. Both Officer Smith and Detective Paxton testified in open court regarding

the photographs. The State again moved to admit the plastic baggie and substance into




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evidence. This time, defense counsel did not object. The court admitted Dr. Northrup's

report over the defense's previous objection regarding timeliness.

       The court granted the defense's request for a missing evidence instruction for

Officer Smith's photographs. The jury returned a verdict of guilty. After the court excused

the jury, defense counsel asked whether the court would hear the pending CrR 8.3(b)

motion "if the Defense decides to file it and brief it?" The court set a hearing on January

26, 2018. However, defense counsel did not file or brief the motion, and the court never

ruled on the motion. On January 31, 2018, the court sentenced Scordamaglia imposed

a low end standard range sentence of 12 months plus one day confinement and 12

months community custody. Scordamaglia appeals.

                                       DISCUSSION

  I.   Substance Testing Delay

       Scordamaglia first argues that the trial court erred in denying his CrR 8.3(b) motion

to dismiss for the State's violation of its discovery obligations. Specifically, he contends

the prosecutor committed misconduct by filing the case in district court without conducting

a preliminary hearing and waiting until the omnibus hearing to ask the state crime lab to

test the suspected contraband. He asserts that these actions prejudicially forced him to

choose between proceeding to trial with counsel who was inadequately prepared to

address the test results or accepting further delays in trial.

       CrR 8.3(b) states that "[t]he court, in the furtherance of justice, after notice and

hearing, may dismiss any criminal prosecution due to arbitrary action or governmental

misconduct when there has been prejudice to the rights of the accused which materially

affect the accused's right to a fair trial." "Governmental misconduct need not be evil or


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No. 78210-0-1/7


dishonest. Simple mismanagement is sufficient." State v. Kone, 165 Wn. App. 420,433,

266 P.3d 916 (2011). "The use of CrRLJ 8.3(b) to punish a discovery violation is limited

because the rule expressly contemplates dismissal, the most severe sanction available

to trial courts." State v, Salgado-Mendoza, 189 Wn.2d 420,429,403 P.3d 45(2017). We

review a trial court's denial of dismissal under CrR 8.3(b) for abuse of discretion. State

v. Oppelt, 172 Wn.2d 285, 297, 257 P.3d 653(2011).

      The State contends that Scordamaglia knowingly waived CrR 8.3(b) as a basis for

review of this claim by consciously abandoning it below. We agree. Waiver is "an

intentional relinquishment or abandonment of a known right or privilege." State v. Harris,

154 Wn. App. 87, 95, 224 P.3d 830(2010)(quoting State v. Riley, 19 Wn. App. 289, 294,

576 P.2d 1311 (1978)). "Even where a constitutional error is manifest, it can still be

waived if the issue is deliberately not litigated during trial."3 State v. Haves, 165 Wn.App.

507, 515, 265 P.3d 982 (2011). See also Johnson v. United States, 318 U.S. 189, 199-

200,63 S. Ct. 549, 87 L. Ed. 704(1943); State v. Valladares, 99 Wn.2d 663,671-72,664

P.2d 508 (1983); State v. Walton, 76 Wn. App. 364, 370, 884 P.2d 1348 (1994).

       Here, the defense initially moved pursuant to CrR 4.7 "to exclude any evidence not

provided by the omnibus date." However, during oral argument, the defense moved for

dismissal on several possible grounds, including CrR 8.3(b), CrR 4.7, and CrRLJ 3.2.1(g).

The court, noting that the parties had not yet briefed these issues, expressly reserved

ruling on the motion to dismiss. The court stated that it would even be willing to hear the

motion after trial, if necessary.

       3 Althoughwe generally will not consider issues raised for the first time on appeal,
an exception exists for manifest errors affecting a constitutional right. RAP 2.5(a)(3).
Scordamaglia does not assert that RAP 2.5(a)(3) compels appellate review of this issue.

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No. 78210-0-1/8


       After the jury entered a verdict of guilty, defense counsel asked whether the court

would hear the pending motion to dismiss "if the Defense decides to file it and brief it."

The court agreed and set a hearing for January 26,2018. However,for unknown reasons,

defense counsel chose not to submit briefing and the court never ruled on it. We therefore

decline to review Scordamaglia's claim that abusing the preliminary hearing mechanism

and delaying the substance test warranted dismissal under CrR 8.3(b).

       The State also asserts that Scordamaglia waived any claim that the trial court erred

in denying his motion to suppress the drug evidence or to dismiss his case on the basis

of CrR 4.7 because he failed to provide reasoned argument. We agree.

       CrR 4.7(h)(7)(i) provides that the trial court may grant a continuance, dismiss the

action, or enter another appropriate order as a sanction for failure to comply with a

discovery order. "A trial court exercises its discretion when deciding how to deal with a

discovery violation." State v. Barry, 184 Wn. App. 790, 796, 339 P.3d 200 (2014). At

trial, Scordamaglia argued for suppression of the drug evidence or dismissal based on

CrR 4.7(a)(1)(iv)(requiring the prosecutor to disclose "no later than the omnibus hearing

. . . any reports or statements of experts made in connection with the particular case")

and CrR 4.7(d)(requiring the prosecutor to seek disclosure of discoverable information in

the knowledge, possession, or control of others). The court ruled that it would not exclude

the drug test results for late discovery, noting that there was still 14 days in speedy trial.

The court reasoned that the appropriate remedy would be a continuance to allow the

defense to test the suspected contraband, but noted that the defense did not want that.

       On appeal, Scordamaglia cites CrR 4.7 as a basis for dismissal. But, he provides

no substantive argument regarding whether the trial court abused its discretion by


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No. 78210-0-1/9


denying his motion to suppress evidence of the drug test or to dismiss for a CrR 4.7

discovery violation. RAP 10.3(a)(6) directs each party to supply, in its brief, "argument in

support of the issues presented for review, together with citations to legal authority and

references to relevant parts of the record." "'Massing treatment of an issue or lack of

reasoned argument is insufficient to merit judicial consideration." West v. Thurston

County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012) (quoting Holland v. City of

Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998)). We decline to address it.

 II.   Cumulative Mismanaqement

       Scordamaglia asserts that the court erred in denying his CrR 8.3(b) motion to

dismiss for cumulative prosecutorial mismanagement based on (1) abuse of the

preliminary hearing process under CrRLJ 3.2.1,(2) waiting until omnibus to ask the crime

lab to test the substance,(3)failing in the first trial to prevent testimony on the defendant's

right to remain silent,(4)failing to discover that Officer Smith's photographs were missing

until the middle of the second trial, and (5) failing to notice that the photographs in

evidence were taken by Officer Paxton and attendant failure to name him as a witness.

Scordamaglia contends that this systematic misconduct impacted his speedy trial rights

and prejudiced his right to be represented by adequately prepared counsel.

       Scordamaglia raises valid concerns regarding pervasive mismanagement of what

should have been a simple and straightforward case. But, the trial court expressly

reserved ruling on his motion to dismiss for cumulative mismanagement, including the

missing photographs and late addition of a witness, to allow the parties to fully brief the

issues. As discussed above, the court scheduled a posttrial hearing regarding the




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No. 78210-0-1/10


pending CrR 8.3(b) motion to dismiss, but defense counsel took no further action and the

trial court never ruled on it. We therefore deem it waived.

 III.   Double Jeopardy

        Scordamaglia contends that double jeopardy barred retrial after the court granted

his motion for mistrial. Whether a retrial violates double jeopardy is a question of law

reviewed de novo. State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006). "The

United States Constitution and the Washington State Constitution protect individuals from

being twice put in jeopardy for the same offense." State v. Fuller, 185 Wn.2d 30, 33, 367

P.3d 1057 (2016) (citing U.S. CoNs-r. amend. V; WASH. CONST. art. 1, § 9.) "Besides

prohibiting additional trials for the same offense after conviction or acquittal, double

jeopardy also protects the right of the defendant to be tried by the jury he selected." State

v. Juarez, 115 Wn. App. 881, 888,64 P.3d 83(2003). Jeopardy attaches after the jury is

selected and sworn.4 Id..

        "Standards governing whether retrial is barred differ dramatically depending on

whether the defendant requested the mistrial or whether the State sought a mistrial over

the defendant's objection." State v. Robinson, 146 Wn. App. 471, 478, 191 P.3d 906

(2008). "Under the federal standard, a defendant's motion for mistrial removes any

double jeopardy bar to retrial unless the governmental misconduct 'is intended to goad

the defendant into moving for a mistrial." State v. Hopson, 113 Wn.2d 273, 278, 778

P.2d 1014 (1989) (internal quotation marks omitted) (quoting Oregon v. Kennedy, 456

U.S. 667, 680, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982)(Kennedy I)).5 "In contrast, a

            parties do not dispute that jeopardy attached in this case.
        4 The
       In State v. Kennedy, 295 Or. 260, 276, 666 P.2d 1316 (1983)(Kennedy II), the
        5
Oregon Supreme Court held that the state's constitution barred retrial "when improper

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No. 78210-0-1/11


mistrial without the defendant's consent must be based on 'manifest necessity' in order

to circumvent the double jeopardy prohibition." Robinson, 146 Wn. App. at 479 (quoting

State v. Melton, 97 Wn. App. 327, 331, 983 P.2d 699 (1999). Consent to mistrial is not

freely given where "the court or prosecutor acted in bad faith and by doing so put the

defendant in the position of accepting either a mistrial or serious prejudice to his chances

of acquittal." Juarez, 115 Wn. App. at 888 (citing State v. Rich, 63 Wn. App. 743, 747,

821 P.2d 1269 (1992)).

       It is constitutional error for a police witness to testify that a defendant invoked his

or her right to remain silent or for the State to purposefully elicit such testimony. State v.

Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002). Here, the prosecutor admitted

that she neglected to instruct Officer Smith to avoid commenting on Scordamaglia's

silence, but denied soliciting that testimony. In denying Scordamaglia's motion to dismiss,

the court reasoned as follows:

       All right Not every mistrial or every error of this nature is a double jeopardy
       violation. In this case, there's nothing to indicate it was done deliberately
       by the prosecution. The answer was ramblingly non-responsive. I'm
       denying the motion, but will just indicate: This is happening and has
       happened so many times. I mean, there's just got to be a point where --
       I've said it before -- everyone should be advised this is not okay.

       Scordamaglia does not assert that the prosecutor acted in bad faith. Instead,

relying primarily on Rich he contends that his mistrial request cannot be considered



official conduct is so prejudicial to the defendant that it cannot be cured by means short
of a mistrial, and if the official knows that the conduct is improper and prejudicial and
either intends or is indifferent to the resulting mistrial or reversal." Washington courts
have not settled whether Washington's constitutional double jeopardy clause is broader
than the federal standard. See Hopson, 113 Wn.2d at 283-84. Because Scordamaglia
does not argue that reversal is required under a broader standard, we need not address
this issue.

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No. 78210-0-1/12


consensual because Officer Smith's comment left him with two equally unacceptable

choices—to proceed with a trial tainted by constitutional error or to move for a mistrial.

Rich is distinguishable. In Rich, the defense moved to dismiss on the grounds the State

had failed to prove an element of its case. 63 Wn. App. at 746. The trial court denied the

motion and suggested that the State reopen its case. Id. When the defense objected,

the court gave the option of allowing the State to reopen or having a mistrial declared. Id.

When the defense objected to both choices, the trial court granted its own motion for a

mistrial, then denied the defense's motion to dismiss for double jeopardy. Id. The

appellate court reversed:

       Rich was faced with a "Hobson's choice" of either agreeing to allow the
       State to reopen, which would clearly prejudice his prospects for acquittal, or
       agreeing to a mistrial. Faced with these choices, Rich did nothing but simply
       protest. His failure to select either of two unfavorable options cannot be
       considered consent to the declaration of a mistrial.

Rich, 63 Wn. App. at 748 (footnote omitted).

       Here, unlike the defendant in Rich, Scordamaglia responded to the constitutional

violation by choosing to move for a mistrial.      He now claims this choice was non-

consensual. But, under Scordamaglia's reasoning, no defendant seeking a mistrial due

to prosecutorial error could ever be seen as consenting. Moreover, unlike Rich, retrying

Scordamaglia within time for trial eliminated the taint of Officer Smith's testimony without

prejudicing his prospects for acquittal. The trial court did not abuse its discretion in

determining that double jeopardy did not bar retrial.

       Scordamaglia also asserts that the trial court abused its discretion in denying his

motion to dismiss because the prosecutor's failure to adequately prepare Officer Smith,

although not bad faith, constituted mismanagement warranting dismissal under CrR


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8.3(b).6 He contends that he suffered actual prejudice, because he had been in custody

for 67 days at the time of mistrial and Washington has a speedy trial deadline of 60 days.

See CrR 3.3(b)(1)(i). Scordamaglia concedes that the State tolled his time for trial by

initially filing the charges in district court, but asserts that this was an abuse of the

preliminary hearing mechanism. Given that the second trial commenced within time for

trial, we cannot say the prosecutor's failure to prevent Officer Smith from commenting that

Scordamaglia invoked his right to remain silent, without more, warrants dismissal under

CrR 8.3(b).

IV.    Discovery Violation

       Scordamaglia contends that the trial court erred in denying his CrR 4.7 motion to

exclude Detective Paxton's testimony as a sanction for the State's late witness disclosure.

We review discovery decisions based on CrR 4.7 for abuse of discretion. State v. Vance,

184 Wn. App. 902, 911, 339 P.3d 245(2014). A trial court abuses its discretion when its

decision is manifestly unreasonable, when it exercises its decision on untenable grounds,

or when it makes its decision for untenable reasons. State v. Brooks, 149 Wn. App. 373,

384, 203 P.3d 397 (2009).

       CrR 4.7(a)(1)(i) requires the State to disclose the names of persons whom the

prosecuting attorney intends to call as witnesses no later than the omnibus hearing. "The

purpose of the discovery rules . . . is to prevent a defendant from being prejudiced by

surprise, misconduct, or arbitrary action by the government." State v. Cannon, 130 Wn.2d

       6 The State   asserts that the defense waived this CrR 8.3(b) claim, by failing to brief
or argue it at the scheduled posttrial hearing. But, here, unlike the CrR 8.3(b) motions we
deemed waived, the court denied the motion on the record. Although the oral ruling did
not expressly mention CrR 8.3(b) as a basis for dismissal, there is no indication that the
court reserved ruling on CrR 8.3(b). Waiver does not apply under these circumstances.

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No. 78210-0-1/14


313, 328, 922 P.2d 1293 (1996). If a party fails to comply with a discovery rule, CrR

4.7(h)(7)(i) provides that "the court may order such party to permit the discovery of

material and information not previously disclosed, grant a continuance, dismiss the action

or enter such other order as it deems just under the circumstances." Generally speaking,

a failure to produce evidence or identify witnesses in a timely manner is "appropriately

remedied by continuing trial to give the nonviolating party time to interview a new witness

or prepare to address new evidence." Hutchinson, 135 Wn.2d 863, 881, 959 P.2d 1061

(1998). "Excluding evidence is an 'extraordinary remedy' under CrR 4.7(h) that 'should

be applied narrowly." State v. Veneaas, 155 Wn. App. 507, 521, 228 P.3d 813 (2010)

(quoting State v. Hutchinson, 135 Wn.2d at 882).

      In Hutchinson, our Supreme Court held that trial courts deciding whether to

exclude evidence as a sanction must consider (1) the effectiveness of less severe

sanctions,(2) the impact of witness preclusion on the evidence at trial and the outcome

of the case,(3) the extent to which the witness's testimony will surprise or prejudice the

other party, and (4) whether the violation was willful or in bad faith. 135 Wn.2d at 882-

83.

       Here, although the colloquy between the court and counsel does not indicate any

express consideration of the Hutchinson factors, the parties discussed the issue at length.

Applying these factors, we agree with the State that the trial court did not abuse its

discretion in allowing Detective Paxton to testify regarding chain of custody.

       First, the court offered the less severe alternative of continuing the case for one

day to interview Detective Paxton.       The court also indicated that it would grant

Scordamaglia's motion for a second mistrial coupled with release from custody if


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necessary to investigate the missing photographs or reformulate defense strategy.

Scordamaglia initially accepted this option, but withdrew the motion and chose, to

proceed. Second, excluding Detective Paxton's testimony could have substantially

impacted the outcome of the case by preventing the State from meeting the foundation

requirements to admit the controlled substance into evidence. Third, defense counsel

made it clear that the late disclosure of Detective Paxton was a not a surprise. Rather,

she recognized the chain of custody issue in advance and relied on it as a defense

strategy. In ruling that Detective Paxton could testify regarding chain of custody, the court

reasoned that "the fact he took the pictures was in discovery" and that "there wasn't a

lack of discovery of his existence and that he had gone into the envelope and when."

Because defense was not surprised by Detective Paxton's role in the case, any prejudice

arose from the need to reformulate trial strategy. The court offered to ameliorate this

prejudice by granting a continuance or mistrial coupled with Scordamaglia's release, but

the defense chose to go forward with Detective Paxton's testimony. Fourth, although the

State's failure to name Detective Paxton as a witness was arguably sloppy, there is no

indication that this omission resulted from bad faith. On balance, we cannot say the trial

court abused its discretion in permitting Detective Paxton to testify.

 V.    Chain of Custody

       Scordamaglia contends that the trial court erred in failing to exclude the plastic

baggie and its contents because the State laid an insufficient foundation for the chain of

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

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

substantially the same condition as when the crime was committed." State v. Campbell,


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No. 78210-0-1/16


103 Wn.2d 1, 21, 691 P.2d 929 (1984). "Evidence that is unique and readily identifiable

may be identified by a witness who can state that the item is what it purports to be." State

v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682(2002)(citing 5 KARL B. TEGLAND, WASH.

PRAC. § 402.31 (1999)). "Factors to be considered include the nature of the item, the

circumstances surrounding the preservation and custody, and the likelihood of tampering

or alteration." Id. "[M]inor discrepancies or uncertainty on the part of the witness will

affect only the weight of the evidence, not its admissibility." Campbell, 103 Wn.2d at 21.

We review a trial court's decision to admit evidence for abuse of discretion. Id.

       Scordamaglia asserts that the plastic baggie and its contents were not

"satisfactorily identified" because (1)the baggie presented at trial had blue stars on it but

Detective Paxton's photographs of the baggie did not show any markings, and (2) Officer

Smith recorded the weight of the baggie and substance as 0.9 grams, but Dr. Northrup

recorded the weight as 0.4 grams. He therefore contends that the State failed to establish

the chain of custody and the trial court erred in admitting the evidence. The State

contends that the defense waived appellate review of this issue by failing to object to

admission of the evidence below. We agree.

       When the State initially sought to introduce the baggie and substance into

evidence, the defense objected on the ground that the State had failed to establish the

chain of custody. The defense also objected to Detective Paxton's testimony because

the State added him as a witness mid-trial. However, after the court allowed Detective

Paxton to testify regarding chain of custody, the State again sought to introduce the plastic

baggie and substance into evidence. This time, defense counsel did not object to its

admission. And, when the State moved to admit Dr. Northrup's test report, defense


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No. 78210-0-1/17


counsel renewed her objection regarding timeliness but expressly did not object on the

basis of foundation. Because Scordamaglia waived or abandoned his objection to

admitting the drug evidence based on chain of custody, we will not consider it further.

Valladares, 99 Wn.2d at 671-72.

      We affirm.




WE CONCUR:




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